Smit v Minister of Justice and Correctional Services and Others

The applicant, Jason Smit, a South African citizen, was sought by the United Kingdom for extradition on charges relating to the production, possession and intent to supply cannabis under the UK’s Misuse of Drugs Act 1971. A warrant for his arrest was issued in South Africa following a notification by the Minister of Justice under section 5(1)(a) of the Extradition Act 67 of 1962. Smit challenged his extradition and instituted constitutional proceedings in the High Court, attacking (a) section 63 of the Drugs and Drug Trafficking Act 140 of 1992, which empowers the Minister to amend Schedules listing prohibited substances, and (b) section 5(1)(a) of the Extradition Act, which obliges a magistrate to issue an arrest warrant upon ministerial notification. The High Court declared section 63 and ministerial amendments to Schedules 1 and 2 unconstitutional, but dismissed the challenge to section 5(1)(a). The matter came before the Constitutional Court for confirmation of invalidity and for leave to appeal directly against the High Court’s refusal to invalidate section 5(1)(a) and all Schedules.

The declaration of invalidity of section 63 of the Drugs and Drug Trafficking Act, and of specific ministerial amendments to Schedules 1 and 2, was confirmed. Section 5(1)(a) of the Extradition Act 67 of 1962 was declared unconstitutional and invalid. The orders of invalidity take effect from the date of judgment, but the invalidity relating to section 63 and the Schedules was suspended for 24 months to allow Parliament to cure the defect. Leave to appeal directly was granted. Each party was ordered to pay its own costs.

This case is a leading authority on the limits of permissible delegation of legislative power in South African constitutional law. It affirms that Parliament may not delegate plenary law-making authority, especially where criminal offences are created or expanded. The judgment also strengthens judicial independence in extradition proceedings by requiring meaningful judicial discretion before arrest warrants are issued, thereby reinforcing constitutional protections against arbitrary deprivation of liberty.