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

The applicants, Gregory Craig Ayres and Valeri Lazanov Nikolov, were arrested in November 2014 after allegedly being found in possession of MDMA (ecstasy) in contravention of the Drugs and Drug Trafficking Act 140 of 1992. Before pleading to the charges, they applied to the High Court for an order declaring section 63 of the Drugs Act, as well as the reference to MDMA in Part III of Schedule 2 to the Drugs Act, to be unconstitutional and invalid. Section 63 grants the Minister power to amend Schedules 1 and 2 by notice in the Gazette after consultation with the Minister of National Health. MDMA was inserted into Schedule 2 of the Drugs Act in 1999 by way of Regulation GN 760 of 1999. The applicants argued that section 63 constituted an impermissible delegation of plenary legislative power to a member of the executive, breaching the doctrine of separation of powers.

• Whether section 63 of the Drugs and Drug Trafficking Act is constitutionally invalid as an impermissible delegation of plenary legislative power to the executive
• Whether the High Court was bound by the Constitutional Court's earlier decision in Smit v Minister of Justice and Correctional Services which had already declared section 63 unconstitutional
• Whether leave to appeal should be granted directly to the Constitutional Court
• Whether the costs order of the High Court was appropriate in the circumstances

1. Leave to appeal on the merits is refused. 2. Leave to appeal against the order of costs is granted. 3. The appeal against the order of costs is upheld. 4. The costs order of the High Court is set aside and replaced with: "The first respondent must pay the applicants' costs, including the costs of two counsel". 5. Each party must pay their own costs in this Court.

1. Lower courts are bound by the doctrine of precedent and must follow the decisions of coordinate and higher courts, as this doctrine is intrinsic to the rule of law and foundational to the Constitution. 2. An appeal lies against the order of a court and not against the reasons underpinning the order. Where a court reaches the correct order (even if for incorrect reasons), leave to appeal on the merits should be refused. 3. Once the Constitutional Court has declared legislation invalid, it is not competent for a lower court to make a further order declaring the same legislation invalid, as such an order has already been made by the Constitutional Court. 4. Where a party fails to bring binding precedent to the attention of the court, resulting in an incorrect costs order, such failure can be grounds for overturning the costs order on appeal.

The Court noted that it could "only assume that the High Court was not aware of Smit when it handed down its judgment" as the High Court matter was heard well before Smit was decided. The Court found it significant that the respondents did not counter the applicants' averment that they had sent the Smit judgment to the respondents' attorneys to bring to the attention of the Judge. The Court observed that based on the rule in Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd, the applicants' version must be accepted where the respondents failed to address this aspect in their answering affidavit. The Court expressed satisfaction as to the credibility of the applicants' averments on this point. The Court also observed that had the Judge been aware of Smit, "she would not have made the costs order that she made" and "the dismissal of the applicants' application would have been for different reasons."

This case is significant for reinforcing fundamental principles of the South African legal system, particularly the doctrine of precedent (stare decisis) and the rule of law. The Constitutional Court emphasized that the doctrine of precedent is "not simply a matter of respect for courts of higher authority" but "a manifestation of the rule of law itself, which in turn is a founding value of our Constitution" (citing Camps Bay Ratepayers'). The Court quoted Ruta v Minister of Home Affairs, noting that respect for precedent "lies at the heart of judicial practice" because "it is intrinsically functional to the rule of law, which in turn is foundational to the Constitution." The case illustrates the practical application of these principles, demonstrating that lower courts must follow the decisions of higher courts, and that failure to bring binding precedent to a court's attention can have costs consequences. The case also demonstrates the proper approach to appeals where the order is correct even if the reasoning is not—appeals lie against orders, not reasons.