The Constitutional Court decriminalised the possession and cultivation of dagga (cannabis) in private in September 2018. However, South Africans must not think they are immune to the laws of other countries. Although we haven’t been doing much travelling this year, when the various COVID-19 vaccines are approved and rolled out and life gets back to normal, we once again will be hopping on international flights and taking holidays and business trips overseas.
What happens if you’re caught with marijuana overseas? Can you be extradited for possession of cannabis? In 2018, a South African called Jason Smit, who was living in the United Kingdom, found himself in this situation when he was arrested for alleged cannabis possession.
The drugs were found in his flat and in two other properties he leased. Smit was charged with various criminal offences relating to production, cultivation, possession and supply of cannabis. He was released on bail but he did not stick to his bail conditions and was subject to an arrest warrant.
The UK made a request for Smit to be extradited to stand trial.
International law and order
Democracy relies on the rule of law to function. No one is above the law and all crimes must be investigated. An offender, if convicted, should be punished. How can this be accomplished if the perpetrator is outside the country where the crime was committed?
Many countries cooperate in ensuring the rule of law applies, using a process called extradition: This is defined as “the surrender of an alleged criminal usually under the provisions of a treaty or statute by one authority (such as a state) to another having jurisdiction to try the charge.”
Countries who agree to participate in the return of a suspected offender to the country where the crime was committed sign treaties with each other. South Africa has ratified extradition treaties with 15 countries to date, with several others in the pipeline. Extraditions in South Africa are governed by the Extradition Act 67 of 1962.
When can extradition be used?
An “extraditable offence” is defined by the Extradition Act as a crime that applies under the laws of both the foreign state and South Africa and carries a six-month prison sentence or more. This is the rule of double criminality.
Even if there is an extradition treaty in place, a country does not have an obligation to surrender an alleged criminal to a foreign state. The principle of sovereignty gives every state legal authority over the people residing in its borders. The extradited person is entitled to a fair trial and South Africa will not agree to an extradition if the trial could be prejudiced because of gender, race, religion, nationality or political opinion.
What happened to Jason Smit?
Smit challenged his extradition on the basis that the Schedule to the Drugs and Drugs Trafficking Act No 140 of 1992 is unconstitutional and invalid since the drug was proscribed. Smit argued that since cannabis was not lawfully retained in the Schedules, he had not broken the law. Although possession of cannabis was banned in the UK, the rule of double criminality rule did not apply because possession is not against the law in South Africa, so he could not be extradited for this offence.
Dealing is still an offence
Despite changes to the laws surrounding private use, it is still illegal to deal in dagga. Possession of cannabis for personal use is legal; growing it to sell or supply to others is still a crime. Smit was charged with the production, cultivation, possession and supply of cannabis. This critical distinction renders his argument invalid. Dealing in drugs is breaking the law in both countries.
The court dismissed the application.
Smit was subsequently arrested for running a hydroponic lab in Strand, Western Cape without the appropriate licence and was denied bail.
We’re here to help
Cape Town law firm SD Law is an expert in criminal law, including DUI and possession of drugs. We are available 24/7 to help. Save our number in your phone under “bail lawyer” 076 116 0623.