Minister of Health and Another NO v New Clicks South Africa (Pty) Ltd and Others (Treatment Action Campaign and Another as Amici Curiae)

• Jurisdiction: South Africa
• Citation: 2006 (2) SA 311 (CC)

Minister of Health and Another NO v New Clicks South Africa (Pty) Ltd and Others (Treatment Action Campaign and Another as Amici Curiae)
2006 (2) SA 311 (CC)

2006 (2) SA p311

Citation	2006 (2) SA 311 (CC)
Case No	Case CCT 59/2004
Court	Constitutional Court
Judge	Chaskalson CJ, Langa DCJ, Madala J, Mokgoro J, Moseneke J, Ngcobo J, O'Regan J, Sachs J, Skweyiya J, Van Der Westhuizen J and Yacoob J
Heard	March 15, 2005; March 16, 2005
Judgment	September 30, 2005
Counsel	M T K Moerane SC (with him P Coppin and B Vally) for the applicants/appellants; J J Gauntlett SC (with him A E Bham) for the first respondent; W H Trengove SC (with him A Cockerell and M du Plessis) for the second to eighth respondents; D I Berger SC (with him F Ismail and A Hassim) for the first Amicus Curiae.

Flynote : Sleutelwoorde B

Administrative law — Administrative action — Legislative administrative C action — Such a special category of administrative action — Involves making laws and taking policy decisions for that purpose — Under Constitution such decisions lie within domain of Executive to whom Parliament has delegated its D legislative power — Although exercise of such power subject to constitutional control, Courts should take care not to usurp that power.

Administrative law — Administrative action — Review of — Grounds for — Vagueness — Regulations challenged on E ground of vagueness — Vagueness not specifically mentioned in Promotion of Administrative Justice Act 3 of 2000 (PAJA) as ground for review — Vagueness within purview of s 6(2)(i) of PAJA providing for review of administrative action that was otherwise 'unconstitutional or unlawful' — Doctrine of vagueness based on rule of law which foundational value of Constitution — Implicit in all empowering legislation that regulations have to be consistent with one another and not contradictory — Regulations not complying F therewith would contravene s 6(2)(i) of PAJA.

Administrative law — Promotion of Administrative Justice Act 3 of 2000 — Interpretation of — Certain provisions of Act borrowed from other legal systems (in casu German and Australian law) — Act to be interpreted in context of South Africa law and not in context of legal systems from which provisions borrowed — Neither Germany nor Australi a having defined constitutional right to just administrative action — Transplanting provisions G

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from such countries into South African legal and constitutional framework might produce results A different from those obtaining in countries from which taken.

Administrative law — Regulations — Making of — Validity of regulations challenged — Whether Promotion of Administrative Justice Act 3 of 2000 (PAJA) applicable — Act intended to be codification of rights contained in s 33 of B Constitution — Litigant cannot avoid provisions of PAJA by going beyond it and seeking to rely on s 33(1) of Constitution or common law — 'Administrative action' in s 33(1) of Constitution including legislative administrative action — Regulations Relating to a Transparent Pricing System for Medicines and Scheduled Substances (the regulations) in C Government Notice R553 of 2004 made in terms of Medicines and Related Substances Act 101 of 1965 adversely affecting rights of pharmacists and others in pharmaceutical industry — Regulations therefore 'administrative action' within meaning of PAJA and making of regulations within scope of definition of 'decision' in s 1 of PAJA — Section 4 of PAJA therefore applicable — PAJA accordingly applicable. D

Appeal — Costs of — Supreme Court of Appeal (SCA) directing that merits of appeal be heard at same time as application for leave to appeal — Respondent declining to present argument on merits and dealing only with application for leave to appeal — Constitutional Court, in further appeal, holding that it was just to reflect disapproval of respondent's failure to present argument on merits in SCA, to require respondent to bear applicant's costs in SCA in full. E

Constitutional practice — Appeal — To Constitutional Court — Leave to appeal — Applicant for leave having abided judgment in High Court — Applicant and another party also seeking leave having same legal representatives and relying on same record, application and arguments — Applicant having opposed application for leave to appeal to Supreme Court of Appeal and was F party to those proceedings — No prejudice to other parties — Applicant allowed standing to participate in proceedings in Constitutional Court.

Constitutional practice — Appeal — To Constitutional Court — Leave to appeal — Applicant for leave having persistently declined to address Supreme Court of Appeal (SCA) on merits after SCA had directed that application for leave to appeal to it and merits of G appeal be dealt with at single hearing — Application for leave to SCA based on constructive refusal of leave by High Court — Case involving validity of Regulations Relating to a Transparent Pricing System for Medicines and Scheduled Substances, 2004, made and promulgated in terms of Medicines and Related Substances H Act 101 of 1965 — SCA having declared regulations invalid — If there was substance in appeal to Constitutional Court (CC), refusal of leave to appeal to CC would mean that government's constitutional duty to provide access to health care would be defeated by applicant's incorrect view as to jurisdiction of SCA — Not in interests of justice to permit so important an issue affecting rights of general public and constitutional I obligations of government to be so determined.

Constitutional practice — Appeal — To Supreme Court of Appeal — Leave to appeal — Application for leave to Supreme Court of Appeal on ground of constructive refusal of leave by High Court a legitimate cause of action — Unreasonable delay in dealing with application for leave to appeal interferes with litigant's constitutional right of access to court — J

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What constitutes unreasonable delay depending on circumstances of A case - Court entitled to treat such unreasonable delay as constructive refusal of leave — Delay need not be deliberate — Granting of leave in such circumstances not causing prejudice — Application for leave on grounds of constructive refusal of leave should be last resort.

Constitutional practice — Appeal — To Supreme Court of Appeal — Leave to appeal — Application for leave to Supreme Court of Appeal B (SCA) on ground of constructive refusal of leave by High Court — Case of great public importance on complex and difficult issues — SCA having inherent right to regulate its own process — After hearing argument but before delivery of judgment by SCA, High Court actually refusing leave to appeal — SCA having jurisdiction to deal with application for leave and to decide appeal. C

Constitutional practice — Courts — Powers of — Constitutional control of legislative administrative action — Legislative administrative action a special category of administrative action — Involves making laws and taking policy decisions for that purpose — Under Constitution such decisions lie within domain of Executive to whom Parliament has delegated its legislative power — Although D exercise of such power subject to constitutional control, Courts should take care not to usurp that power.

Medicine — Medicines — Regulations Relating to a Transparent Pricing System for Medicines and Scheduled Substances (the regulations) in Government Notice R553 of 2004 made in terms of Medicines and Related Substances Act 101 of 1965 — Minister, in making regulations, not obliged to act E on Pricing Committee's recommendation — Ultimately, however, to be one decision to which both Pricing Committee and Minister agree — Neither having power to take binding decision without concurrence of other — Decision to make regulations having to be joint decision of Minister and Pricing Committee — Thus, if Pricing Committee's role in such process flawed, entire process tainted and reviewable. F

Medicine — Medicines — Regulations Relating to a Transparent Pricing System for Medicines and Scheduled Substances (the regulations) in Government Notice R553 of 2004 made in terms of Medicines and Related Substances Act 101 of 1965 — Validity of — Regulations made by Minister on recommendation of Pricing Committee — Whether all members of Pricing Committee required to be present during meetings G and oral hearings for affected parties — General Regulations made in terms of Act in Government Notice R510 of 10 April 2003 not making provision for quorum of Pricing Committee — In view of nature and extent of Pricing Committee's work, it could not have been contemplated that all its members would have to attend all its meetings or participate in all its H decisions — Neither Act nor regulations imposing such requirement.

Medicine — Medicines — Regulations Relating to a Transparent Pricing System for Medicines and Scheduled Substances (the regulations) in Government Notice R553 of 2004 made in terms of Medicines and Related Substances Act 101 of 1965 — Validity of — Whether fair procedure I adopted — In making regulations Minister and Pricing Committee not engaged in process of adjudication but in law-making process — Process involving oral hearings in which parties affected by proposed regulations given opportunity of stating objections — Process highly public with public forums, meetings with stakeholders, lobbying, media reports and opportunity to make written representations — Pharmacists and J

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Pharmaceutical Society having had fair opportunity of making their A views on draft regulations known and had in fact done so — They had made contention that dispensing fee provided for in draft regulations would cause pharmacists to trade at loss and had made proposals as to appropriate...