Policing and prosecution of offences relating to possession of or dealing in ecstasy are likely to change as a technical legal challenge to the outlawing of the ‘club drug’ in SA makes its way through the court system.

Times Select reports the challenge has been launched by former Durban bar owner Gregory Ayres and Bulgarian national Valeri Nicolov, who are facing charges under the Drugs and Drug Trafficking Act after 600 000 ecstasy tablets worth an estimated R85m were allegedly found hidden in courier boxes in the back of their vehicle in Middelburg in November 2014.

The matter has been argued before KZN High Court (Durban) Judge Nompumelelo Radebe and – while she has reserved judgment – the matter is heading to the Constitutional Court either way she rules.

In their application, neither man claims any of their rights have been violated, nor that the drug should be legalised. Their argument is simply that the Justice Minister at the time did not have the power to add it to the list of dangerous and undesirable substances in the Act. This could only have been done through a legislative process by Parliament. In essence, they say, ecstasy (or MDMA) is not banned and cannot be prosecuted under the Act.

In a written argument, Advocate Andrea Gabriel SC – for the Minister – said the Minister had only amended the schedule and not the Act. She said Parliament had made it clear what substances it considered undesirable and dangerous and, when the Act was passed, Parliament itemised certain known drugs at the time. ‘The Minister since then has just added or deleted from the schedules within the framework.’

According to the Times Select report, she also pointed to the fact that SA had ratified three international treaties in the ‘war on drugs’ that were binding in terms of the Constitution. In his written argument, Kemp J Kemp SC – for Ayres and Nicolov – argued MDMA was not lawfully included in the schedules and as such his client’s conduct was not criminal. ‘In 1992 when the Act was passed, MDMA was not part of the schedules. It was not one of the listed substances. It was inserted in 1999 by the Minister, which should not have been done.’

Full Times Select report