Far-out drug dispute may give ‘dealers’ the higher ground
A legal challenge to the outlawing of ecstasy could have a startling impact for dealers and users
Policing and prosecution of offences relating to possession of or dealing in ecstasy are likely to change as a technical legal challenge to the outlawing of the “club drug” in SA makes its way through the court system.
The challenge has been launched by former Durban bar owner Gregory Ayres and Bulgarian national Valeri Nicolov, who are facing charges under the Drugs and Drug Trafficking Act after 600,000 ecstasy tablets worth an estimated R85m were allegedly found hidden in courier boxes in the back of their vehicle in Middelburg in November 2014.
The matter has been argued before Durban High Court judge Nompumelelo Radebe and, while she has reserved judgment, the matter is heading to the Constitutional Court either way she rules.
The criminal case against Ayres and Nicolov has been struck off the roll pending the final determination of the matter.
If they win, criminal charges will have to be withdrawn against them and against anyone else who is standing trial for possession of or dealing in ecstasy. It will also pave the way for appeals from those already punished for the crimes.
In their application neither man claims any of their rights have been violated, nor that the drug – which before it was declared an undesirable dependence-inducing substance was already a Schedule 7 “medicinal” drug – should be legalised.
Their argument is simply that the justice minister at the time did not have the power to add it to the list of dangerous and undesirable substances in the act.
This could only have been done through a legislative process by parliament.
In essence, they say, ecstasy (or MDMA) is not banned and cannot be prosecuted under the act.
The issue of separation of powers has come before the Constitutional Court in other matters several times in the past, with allegations that parliament had “given away its power” to ministers.
While parliament sets broad laws and then gives ministers the right to develop regulations and proclamations, these have to fall within the essence of the acts that have been passed.
A legal source told Times Select: “In most of the recent cases which have come before the Constitutional Court, the court has ruled that it is permissible for parliament to delegate powers, especially when it involves rapid decision-making and the decisions are within the framework of the act.”
In a written argument, Adv Andrea Gabriel SC, for the minister, said the minister had only amended the schedule and not the act.
She said parliament had made it clear what substances it considered undesirable and dangerous and, when the act was passed, parliament itemised certain known drugs at the time.
“The minister since then has just added or deleted from the schedules within the framework.”
She also pointed to the fact that SA had ratified three international treaties in the “war on drugs” that were binding in terms of the constitution.
“It is undisputed that the subject matter of the drugs act are matters that affect the public welfare. This is equally true from the fact that the drugs are now synthetically manufactured in laboratories, and this accounts for the fact that some esters and isomers are also prohibited.
“It can hardly be suggested that each chemical ingredient or compound must first be put to debate before parliament or sent out for public comment, particularly where few, if any, will have the necessary expertise to consider such matters,” Gabriel argued.
“It is impossible in a modern state to expect parliament to legislate for every eventuality.”
In his written argument, Kemp J Kemp SC, for Ayres and Nicolov, argued MDMA was not lawfully included in the schedules and as such his client’s conduct was not criminal.
“In 1992 when the act was passed, MDMA was not part of the schedules. It was not one of the listed substances. It was inserted in 1999 by the minister, which should not have been done.”
Kemp said criminalisation of substances had extreme consequences and compromised the constitutional rights with regards to dignity, privacy, arrest, prosecution and punishment.
“The mere potential exposure to criminality and severe sentences [up to 25 years] is a matter which should belong firmly and exclusively to parliament with the checks and balances applicable to parliamentary lawmaking.
“In this case, the minister acts like parliament and creates laws, he can repeal laws by removal from the schedules or amend them by changing them from one schedule to another.”
Kemp said there was no explanation for why MDMA was not considered a drug when the act was passed in 1992.
“The minister’s motives may have been noble. That matters not. For the point is there has not been a constitutionally valid criminalisation of it.”