Prevention and Combating of Hate Crimes and Hate Speech Bill: Department response to submissions; Drugs and Drug Trafficking Amendment Bill: adoption

Meeting report

The Chairperson welcomed the Deputy Minister to the meeting. He indicated that the Committee would first deal with two international protocols, following which, it would be briefed by the Department on the Drugs and Drug Trafficking Amendment (DDTA Amendment Bill). Members hoped that the Bill could be finalised as soon as possible, so that they would then be able to attend to the processing of the Hate Crimes Bill.

Report of the Portfolio Committee on Justice and Correctional Services on the International Convention for the Protection of all Persons from Enforced Disappearance

The Chairperson took the Committee through the report. Thereafter, he requested a mover to adopt the report with the amendments.

Mr X Nqola (ANC) moved to adopt the report with the amendments.

Dr W Newhoudt-Druchen (ANC) seconded the report's adoption with the amendments.

Mr W Horn (DA) mentioned that the DA reserved its position until the protocol was served before its caucus. 

The Chairperson indicated that the treaty protocol had been agreed to and adopted by the Committee. 

Read: ATC220902: Report of the Portfolio Committee on Justice and Correctional Services on the International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED)

Report of the Portfolio Committee on Justice and Correctional Services on the Suppression and Punishment of the Crime of Apartheid: Adopted by General Assembly of the United Nations on 30 November 1973, tabled in terms of Section 231 (2) of the Constitution, 1996

The Chairperson took the Committee through the report. Thereafter he requested a mover for the adoption of the report, with the amendments.

Ms Maseko-Jele (ANC) moved to adopt the report with the amendments.

Ms A Ramolebeng (ANC) seconded the mover to adopt the report with the amendments.

Mr Horn indicated that the DA reserved its position until the protocol was served before its caucus. 

The Chairperson indicated that the treaty protocol had been agreed to and adopted by the Committee. 

Read: ATC220902: Report of the Portfolio Committee on Justice and Correctional Services on the International Convention on the Suppression and Punishment of the Crime of Apartheid

Briefing on the DDTA Amendment Bill [B19-2022]

Mr Sarel Robbertse, State Law Advisor, DoJ&CD, explained that the Drugs and Drug Trafficking Act (DDTA), 1992 (Act No. 140 of 1992) criminalises: the manufacturing and supplying of any substance included in Schedule 1 to that Act; and the use, possession and dealing in any drug included in Schedule 2 of the Act. Schedules 1 and 2 of the Act, in terms of Section 63 of the Act, may be amended through a notice in the Gazette, by the Minister.

Due to the Constitutional Court’s (CC) declaration that Section 63 of the DDTA unconstitutional in the Jason Smit v Minister of Justice and Constitutional Development and Others [2020] judgement, the amendments made in Section 63 to the Schedules were now invalid. In the same judgement, the CC suspended the order of invalidity for a period of 24 months to give Parliament an opportunity to cure the defects. The 24 months period will lapse on 17 December 2022.

The Amendment Bill sought to amend Act to address the constitutional invalidity of Section 63 and the amendments that the Minister enacted in terms of the same section to Schedule 1 and Schedule 2.

Section 63 was declared inconsistent with the Constitution and invalid to the extent that it purports to delegate plenary legislative power to amend Schedules 1 and 2 to the Minister of Justice and Correctional Services.

Discussion

The Chairperson asked whether the Bill affected the Cannabis Bill (CB) and, if so, what this was.

Mr Robbertse explained that the Department had not deleted the provision in the CB that allows for Cannabis through nominal Tetrahydrocannabinol (THC) in the amended schedules. This provision would not influence the CB since the CB repealed the substances included in Schedule 2 of the DDTA, as submitted in the Amendment Bill.  

Adv S Swart (ACDP) indicated that Section 63 of the DDTA was declared unconstitutional because it purported to delegate the legislative power of amending the schedules to the Minister, which he subsequently did, through a government notice. He asked the Department to explain if it was attempting to remedy the unconstitutional aspect of that section through this Amendment Bill. 

Further, he asked the Department to provide reasons for the Department’s late tabling of the Bill to the Committee. This placed pressure on the Committee, the National Council of Provinces (NCOP), and the President to sign the Bill into law within three months, to meet the December 17, 2022, deadline. Further, he asked what the consequences would be if this deadline was not met, given that the CC order was prospective.

In addition, he asked the Department to explain whether Schedule 5 of the CB – should the Bill be passed – will be amended through legislation and not government notice; and to remove the definition of ‘Cannabis’. 

Mr Nqola agreed with Adv Swart’s comments. He then asked if the Department had solicited a scientific expert to assist with which substances were placed in the Amendment Bill. 

Mr John Jeffery, Deputy Minister of Justice and Constitutional Development, highlighted that the Bill effectively eliminated Section 63 of the Act and had not made any new additions of drugs. He assumed that when the Minister previously attempted to place additional drugs to the Schedule, it was based upon the Department of Health (DoH)’s recommendations. 

On the reasons for the department’s late tabling of the Bill, he mentioned that during a departmental meeting held on Tuesday, he had informed officials that the Bill was supposed to be tabled in February or March this year.

The Chairperson asked if there had been progress in processing the application to request an extension from the CC.

Deputy Minister Jeffery questioned the difficulty of passing the Bill in the next three months, given that it is non-controversial. However, if the Committee felt this was insufficient time, the Department would approach the court for an extension. 

Adv Swart objected to, what he believed, was a nonchalant approach taken by the Deputy Minister, especially given that the order was first given by the High Court in 2015 and affirmed by the CC in 2020. The Committee was not aware of which drugs were contained in the Bill – and the DoH may look to add more drugs to the Bill. He reminded the Department had committed to tabling the Bill in February, and by not doing so, it had placed pressure on the Committee, which is already dealing with a number of Bills that have their own pressing CC deadlines. Further much time will be required to process the Bill.  

The Chairperson said that Adv Swart had articulated the Committee’s fears. He felt it was unfair for both Houses and the President to accede to the Bill within three months.

Deputy Minister Jeffery replied that the Department would approach the CC for an extension if that was the Committee’s desire. However, he hoped this would not be necessary due to the costs involved.

He disagreed that he was being nonchalant in his approach and indicated he was, in fact, aggrieved that officials in the Department had not fulfilled their undertakings to submit the Bill earlier to the Committee. The submission of the Bill occurred only after his intervention to place it on the Cabinet agenda. He apologised to the Committee for this series of events. 

On whether the Department was attempting to remedy the unconstitutional aspect of that section through this Amendment Bill, he indicated that had the DoH wanted to add other drugs to the Bill, it would have done so during the drafting period.

Referring to the reasons for the delay, he stated that in a prior case, the Department tried to table a Bill to the Committee before a declaration of invalidity was confirmed by the CC. Unfortunately, the CC, in that case, did not just confirm the High Court decision, but it also added other issues.  The Department had to withdraw the Bill and reintroduce it with new sections. He added that the Department did not understand why the Bill could not have been processed urgently, as it was an amendment to the current Act.

The Chairperson raised the Committee’s concerns regarding the Executive’s consistent failure to table CC Bills in Parliament on time. From the start of its term, the Committee had raised this issue with the Executive Authority, particularly as it has had to process Bills from the 5th Parliament. These late submissions were straining Parliament’s relationship with the Judiciary, as Bills have not been passed within CC deadlines. Further, he recommended that the Ministry take steps against Department officials who fail to submit draft Bills to Parliament on time. He requested that the Department provide the Committee with an update on this when it returns to present its Budgetary Review and Recommendation Report.

Deputy Minister Jeffery mentioned that the Executive raised this same issue during the meeting on Tuesday. The late submissions were due to a lack of legislative development capacity in the department, as well as the death of certain staff members due to Covid-19.

The Chairperson asked how the department would know which drugs to add to the Amendment Bill if new ones are added by organisations in their public comments.

Deputy Minister Jeffery indicated that no additions to the Bill could be made until approval from the House. The Department, he said, would await the submissions and respond to them where necessary. He added that the DoH had requested no further amendments.

Dr Newhoudt-Druchen raised her concerns regarding the Deputy Minister’s warning that if the Bill were not passed on time, the Schedules would not be legal due to the severe problem of drugs in the country. She asked what steps should be taken if the Bill was not passed on time. 

The Chairperson mentioned that the answer to her question was for the Department to request an extension at the CC. The Committee would do its best to process the Bill as soon as possible. 

The Deputy Minister clarified that failure to pass the Bill on time would only mean that the additions made by the Minister of Justice (MOJ) to the Schedules since the Act was first passed would fall away. However, he felt that would still be an issue, as the drugs in those Schedules need to remain on the list. He urged the Committee to move with haste when processing the Bill, beginning with its publishing for public comment over the weekend, but if Members felt that there was insufficient time to do so, the Department would approach the CC for an extension.

Adv Swart appreciated the Deputy Minister’s intervention to ensure the Bill was brought before the Committee. However, he also urged the Committee to process the Bill as soon as possible because the application for extension may not be successful, which will have greater implications.

The Chairperson mentioned that there had been a delay in advertising the Bill for public comments due to the slow procurement of newspapers in Parliament. However, he was certain that it would be advertised over the weekend. The public will be given three weeks to submit comments; thereafter, the Committee would then move on to public hearings. He asked that the Department finalise its application to extend at the CC and provide a weekly update on the unfolding of the court process. Nonetheless, he assured the Department that the Committee would do its best to meet the deadline.

Adv Swart questioned the three-week timeline for public comments.

The Chairperson asked if there would be challenges if the public was not given sufficient time to comment on the Bill.

Adv Swart said that given the urgency and the non-controversial nature of the Bill, a shorter time frame could be allocated for this process.

Ms Christine Silkstone, Committee Content Advisor, informed Members that the Committee has put out an advertisement for less than three weeks in the past, depending on the urgency of the matter. 

The Chairperson asked if there had been challenges in those cases.

Ms Silkstone said there were none.

The Committee Secretary proposed that the Bill be advertised for only two weeks.

The Chairperson requested a mover for agreement with the proposal.

Adv Swart moved to agree with the proposal.

Mr Robbertese, referring to clause three, mentioned that as there is no implementation clause, if the Bill were to be adopted by Parliament, it would immediately come into effect. The President would not need to proclaim it through a gazette.

All of the substances the Bill aims to insert into the Schedules also form part of the Medicines Act (MA), particularly Schedule 7. As the MA contains prohibitions against the distribution of certain chemicals, prosecution can be effected through the Act. Once passed, all the chemicals placed in Schedule 2 of the Amendment Bill will be prosecutable in line with the Act. In addition, he said that the MA’s schedules are also amended by the Minister, so a similar constitutional challenge, similar to Section 63, may be raised against the DDTA in this regard. 

He explained that one of the consequences of not passing the Bill on time would be that the period of invalidity that has been suspended, as per the court order, would apply retrospectively to when the judgement was handed in 2020, thus placing all prosecutions during that period in jeopardy.

Further, he mentioned that the repeal of Section 63 of the Act would mean that amendments and Schedules in the Act should be done in line with the Constitution, meaning that each time a Schedule needs to be amended, an Amendment Bill must be introduced and taken through Parliament.

Responding to the question on the delay, he stated that the Bill was submitted to the State Law Advisors in April or May of this year for preliminary certification. There was an exemption to expedite the Bill. However, there was a delay in submitting it before the Justice, Crime Prevention, and Security Cluster due to the cancellation of the planned meeting, setting back the tabling of the Bill to the Committee by a further month.

Various amendments to DDTA have been made since its inception. The Department compiled a new Bill to regulate drugs and drug trafficking, but substantial problems relating to its Schedules were later found, mainly due to the lack of expertise in identifying new substances to be added. SAPS assisted with this task, but since the process required too much time, the Department decided to draft a simpler Bill.

Regarding the DDTA, he indicated various provisions in the statute book, contained in Sections 20-22, which deal with drug possession and drug use. He informed Members that a prior judgement declared that certain powers of SAPS, in terms of Section 11 of the DDTA, were unconstitutional – which is something the Amendment Bill looked to correct.

Touching on the insertion of new drugs into these schedules, he stated that various amendments need to be made to the DDTA, which have not been included in the Amendment Bill. To his knowledge, someone in the Department had been tasked with drafting a Bill that would amend the current Schedules and include all other substances in the conventions of the current Amendment Bill. He advised that the submissions be done at a later stage.

The Chairperson asked Members if they preferred the Department to provide detailed information on the substances included in the Bill during the meeting or during the public consultation process.

Adv Swart suggested that the Department prepare a document for the Committee, which will include the justification for including each drug contained in the Amendment Bill.

Adv Swart asked the Department to clarify what it meant when it said that the Schedules had been invalid from the date of the CC’s judgement, effectively stopping prosecutions. In addition, he asked whether there had been engagements with SAPS and the National Prosecuting Authority (NPA) on this matter.

Mr Robbertse indicated that when the court declared Section 63 invalid, it also declared the amendments invalid from the date of the judgement. The current amendments to the Schedule would, in line with the CC judgement, be valid until 17 December 2022. He further explained that there is a rule in the legislation that states that if a law is valid for a certain period of time, especially relating to criminal proceedings and you aim to prosecute a person based on the provision, you can proceed with it if the validity of the criminalising provision will expire. He advised the Committee to consider that if the inserted substances are not amended by 17 December, the suspended order of invalidity would lapse.

Referring to the question of whether the Department had engaged the NPA and SAPS, he indicated that no in-depth consultations had taken place yet, on the issue. Both are well aware of the consequences if the Bill is not passed timeously. If the department recognised a need to apply for an extension, it would ask for input from them.

He also mentioned that all the substances, except for one, which are currently in the Schedules of the DTTA, form part of the Schedules for Drug Conventions.

Adv Swart asked if he was correct in his assessment that if the Bill was not passed on time, the period of invalidity that has been suspended, as per the court order, would apply retrospectively to when the judgement was handed in 2020, thus placing all prosecutions during that period in jeopardy.

Deputy Minister Jeffery confirmed that this would be the case. To prevent this from occurring, the Department would immediately begin preparing the process to apply for an extension at the CC.

The Chairperson highlighted the need for discussions between Parliament and the Executive on how best to resolve the issues slowing down the submission of Bills by the latter, to the former. The duty of Parliament and the Executive is to manage risks on behalf of the state and as such, it was unacceptable for officials in the Department not to take their tasks seriously. Nevertheless, he remained confident that the Committee would be able to pass the Bill before the adjournment of Parliament at the end of the year.

Deputy Minister Jeffery clarified that while the passing of the Bill did not require an implementation act, it did need the President to accede to it. 

The Chairperson asked Members if they preferred to have a debate or make a declaration on the Traditional Courts Bill.

Adv Swart supported the Committee making a declaration.

Deputy Minister Jeffery indicated his preference for a debate so that he would be able to respond to certain matters regarding the Bill. 

The meeting was adjourned.