Ayres and Another v Minister of Justice and Correctional Services and Another

The applicants were arrested in November 2014 and charged with unlawful dealing in or possession of MDMA (ecstasy) under the Drugs and Drug Trafficking Act 140 of 1992. Before pleading, they approached the KwaZulu-Natal High Court seeking a declaration that section 63 of the Act, which empowers the Minister to amend Schedules 1 and 2 by notice, and the inclusion of MDMA in Schedule 2, were unconstitutional. They argued that section 63 amounted to an impermissible delegation of plenary legislative power to the executive. The High Court dismissed the application with costs. The applicants then sought leave to appeal directly to the Constitutional Court.

Leave to appeal on the merits was refused; leave to appeal against the costs order was granted; the appeal against the costs order was upheld; the High Court’s costs order was set aside and replaced with an order that the respondents pay the applicants’ costs (including two counsel); each party was ordered to pay its own costs in the Constitutional Court.

The case reinforces the doctrine of precedent and the rule of law by affirming that lower courts are bound by Constitutional Court decisions. It clarifies that even where a lower court’s reasoning conflicts with binding precedent, an appeal will not succeed if the ultimate order is correct. The judgment also highlights fairness considerations in constitutional litigation costs.