Cape Town - A father of two this week asked the Constitutional Court to enshrine a high court judgment that overturned an extradition application from the UK where he is wanted on drugs charges.
Jason Smit, 53, from Somerset West in Cape Town, is also out on R100 000 bail and under effective house arrest for allegedly manufacturing and dealing in cannabis.
The latter charges stem from a March raid by Cape Town police and the Hawks of a massive cannabis-growing facility that they described as the “biggest hydroponic lab ever in SA”.
The UK police want to prosecute Smit for various criminal offences relating to the production, cultivation, possession and supply of cannabis following a 2008 Cumbria police raid on his flat and two other residences they claim were leased out in his name.
UK police also claim Smit jumped bail and left the UK illegally to escape up to 14 years in jail.
Smit denied this and that the substance found in his flat was cannabis. He said the two addresses where the cannabis was found were rented in his name without his knowledge.
Smit represented by Anton Katz SC successfully opposed his extradition principally on the basis that the Schedule to the Drugs and Drugs Trafficking Act No 140 of 1992 proscribed the possession and dealing in cannabis as unconstitutional and invalid since the drug was proscribed as a consequence of the minister exercising a plenary legislative power conferred on him in terms of section 63 of the Drugs Act.
The high court agreed this amounted to “a breach of the separation of powers doctrine, a cornerstone of the South African constitutional order”.
Furthermore high court judge AJ Francis agreed with Katz’s contention “that the minister and his predecessors, in terms of the provisions of section 63 of theAct have repeatedly exercised the power to amend since the commencement of the Act on 30 April 1993.
When amending the Schedules to the Act, the minister exercised a discretion to retain cannabis as a prohibited drug. Since cannabis was not lawfully retained in the Schedules his alleged conduct could not be held to have been criminal/unlawful.
In addition, noted Francis, the Constitutional Court in the most recent 2018 Prince decision “declared certain sections of the Act to be inconsistent with the Constitution and invalid to the extent that those sections prohibited the use or possession of cannabis by an adult in private for his or her own consumption”.
“Therefore, although the possession of cannabis may be proscribed in the United Kingdom, it is not so in South Africa. As a consequence, the double criminality rule is not satisfied and that directly impacted on the question as to whether or not Smit may be lawfully extradited from South Africa to the United Kingdom.”
According to the rule of double criminality the offence for which extradition is sought must be an offence under the laws of both the applying foreign State and South Africa.
After hearing all arguments this week the Constitutional Court reserved judgment. If it rules in Smit’s favour and upholds his high court victory it will have a far-reaching impact on the way drug-related crimes are prosecuted in South Africa.