Mistry v Interim Medical and Dental Council of South Africa and Others

• Jurisdiction: South Africa
• Judge: Chaskalson P, Langa DP, Ackermann J, Goldstone J, Kriegler J, Madala J, Mokgoro J, O'Regan J, Sachs J
• Judgment Date: 29 May 1998
• Citation: 1998 (4) SA 1127 (CC)
• Docket Number: CCT 13/97
• Hearing Date: 24 February 1998
• Counsel: N Singh (with him K Govender) for the applicant/appellant. TN Aboobaker (with him M Govindsamy) for the respondents.
• Court: Constitutional Court

Chaskalson P:

[1] I have read the judgment of Sachs J in this matter and concur in his judgment and the order made by him. D

[2] In dealing with the application to refer the issue of the constitutionality of s 28(1) of the Medicines and Related Substances Control Act [1] ('the Medicines Act') to this Court for decision, McLaren J correctly pointed out in his judgment that the case raised complex and interrelated questions of law and policy. [2] He suggested that in such E circumstances a decision on the referral might depend to some extent on the subjective attitudes of the Judges of this Court and that this was a factor to be taken into account in deciding whether or not to order a referral. [3]

[3] Whilst it may not be easy 'to avoid the influence of one's personal intellectual and moral preconceptions', [4] this Court F has from its very inception stressed the fact that 'the Constitution does not mean whatever we might wish it to mean'. [5] Cases fall to be decided on a principled basis. Each case that is decided adds to the body of South African constitutional law and establishes principles relevant to the decision of cases which may arise in the future. Particularly where principles G have not yet been established, Courts may draw on the burgeoning international jurisprudence on constitutional rights. It is, however, the duty of the Courts of this country to develop a constitutional jurisprudence based on principle and to decide cases in the light of principles that have been established. It is on this basis that Courts should decide whether or not to refer a question to this Court, and whether or not to grant a positive certificate in an application for leave to appeal H to this Court.

[4] In his judgment on the application for a certificate to support an application for leave to appeal to this Court, McLaren J also expressed

Chaskalson P

the view that it is desirable for such matters to be dealt with in a judgment in which the decision of the Judge on the A application is motivated. [6] He indicated, however, that there remains some uncertainty as to how such applications should be dealt with and suggested that a practice direction should be given concerning such matters. [7]

[5] Rule 18(e) of the Constitutional Court Rules [8] provides as follows: B

'If it appears to the Judge or Judges of the Division of the [High Court] concerned, hearing the application [for a certificate], that -

(i)

the constitutional issue is one of substance on which a ruling by the Court is desirable; and C

(ii)

the evidence in the proceedings is sufficient to enable the Court to deal with and dispose of the matter without having to refer the case back to the Division concerned for further evidence; and

(iii)

there is a reasonable prospect that the Court will reverse or materially alter the decision given . . . if permission to bring the appeal is given, such Judge or Judges . . . shall certify on the application that in his or her or their opinion, the requirements D of subparas (i), (ii) and (iii) have been satisfied or, failing which, the Judge or Judges shall certify which of such requirements have been satisfied, and which have not been satisfied.'

[6] A party wishing to appeal against a decision of the High Court applies formally to that Court for a certificate in terms E of Rule 18. Considerations relevant to deciding whether a certificate should be positive or negative are in many respects similar to those which should influence a Court in deciding whether or not to grant leave to appeal to the Supreme Court of Appeal. In both instances the High Court is required to consider whether or not there are reasonable prospects of F success and whether the issues raised are of sufficient substance to be dealt with by such Court. It is appropriate, therefore, that an application for a certificate in terms of Rule 18 should be dealt with in the same manner as a conventional application for leave to appeal. In both instances a judgment on the application is required. G

[7] The purpose of the certificate is to assist this Court in the decision that it has to make as to whether or not leave to appeal should be granted. Where the relevant constitutional issues have been fully traversed in the judgment in respect of which the certificate is given, there may be no need for a detailed judgment on the certificate. But where the application H for a certificate raises issues which have not been fully canvassed in the judgment, or where the reasoning in the judgment is subjected to challenge which calls for comment, the judgment on the certificate may have to be more comprehensive. Ultimately, what is necessary is that the Judge or Judges in the High Court to whom the I

Sachs J

application is made should, as McLaren J did in the present matter, consider the issues identified in Rule 18(e) and give A reasons for the findings made.

Langa DP, Ackermann J, Goldstone J, Kriegler J, Madala J, Mokgoro J, O'Regan J and Sachs J concurred in the judgment of Chaskalson P. B

Judgment

Sachs J:

[8] The central problem in this case is whether the powers of entry, examination, search and seizure given to inspectors by s 28(1) of the Medicines and Related Substances Control Act [1] are consistent with the provisions of s 13 of the interim C Constitution [2] which guarantee personal privacy. The matter comes to this Court both as a referral of a constitutional issue and as an appeal under the interim Constitution. To avoid confusion the parties are referred to as in the Court of first instance. D

[9] The applicant is a registered medical practitioner in private practice. The chain of events which led to the present proceedings was initiated by a letter of complaint by a patient to the Interim National Medical and Dental Council of South Africa (the Council, which is the first respondent). It alleged that the applicant was fraudulently claiming E reimbursement from the patient's medical aid fund for services which he had not in fact rendered. In response, the Council ordered an inspection of the premises by a senior legal advisor on its staff, Mr Enslin (who is the second respondent), and a doctor in private practice in Durban, Dr Moodliar (who is the fifth respondent). [3] F

[10] Prior to carrying out the order of the Council, Mr Enslin informed the chief medicines control officer of the Department of Health and an inspector of medicines, Mr Coote (who is the fourth respondent), of the impending inspection. [4] The three inspectors went together to the applicant's surgery and proceeded to search it in the absence of G the applicant, who arrived when the search was almost complete. The inspectors claim they were informed by staff at the surgery that the applicant had not been in full-time attendance for some months. Shortly after his arrival, Mr Coote purchased a container of Persivate cream [5] from the applicant's receptionist. In the course of the search he seized H numerous items, while Mr Enslin and Dr Moodliar seized various other

Sachs J

items which, however, do not form part of the present matter since they were subsequently returned as a result of a Court A order. [6]

[11] The applicant made urgent application to the Durban and Coast High Court [7] for a rule nisi calling on the respondents to show cause, if any, why an order should not be granted in the following terms: B

'1.

That the first, second and fifth respondents are directed to forthwith return to the applicant all the items referred to in annexures A1, A2 and A3, appearing at pp 33, 34 and 35 of the papers, as well as any other items that were seized (referred to in para 19 of the affidavit deposed to by the second respondent), together with all copies that were made of any such documents. C

2.

That the third and fourth respondents are directed to forthwith return to the applicant:

2.1

all the photographs taken by the fourth respondent at the applicant's surgery on 8 October 1996, all copies thereof as well as the negatives relating to such photographs; D

2.2

all the items on annexure RKC18 to the fourth respondent's affidavit, which is at p 154 of the papers, as well as all copies that were made of any of the documents or records on the said list;

alternatively to 2.1 and 2.2 E

2.3

all the items on annexure RKC18, sae (sic) for items 1, 12, 15, 16, 27 and 28 on the said list, and the Persivate cream described and referred to in para 6.14 and 6.15 of the fourth respondent's affidavit at pp 119--20 of the papers.

3.

That the respondents pay the cost of the application. F

4.

Alternatively to 1 to 3 hereof, that the following issues are referred to the Constitutional Court in terms of s 102(1) of the interim Constitution:

4.1

whether ss 41A(1), (2), (5), (6)(a) and (d) of the Medical, Dental and Supplementary Health Service Professions Act 56 of 1974 are constitutional and valid or not; G

4.2

whether ss 28(1)(a), (b) and (c) of the Medicines and Related Substances Control Act 101 of 1965 are constitutional and valid or not.

5.

That pending the final determination of the matter in the Constitutional Court: H

5.1

that the second and fifth respondents are interdicted and restrained from conducting any searches of the applicant's premises or any seizures thereat in terms of s 41A(6) of the Medical, Dental and Supplementary Health Service Professions Act 56 of 1974; I

5.2

that the first, sixth and seventh respondents are interdicted and restrained from instructing any person to conduct searches of the applicant's premises or any seizures thereat,

Sachs J

pursuant to s 41A(1), (2) and (5) of the Medical, Dental and Supplementary Health Service Professions A Act 56 of 1974;

5.3

that the fourth respondent is interdicted...