New Clicks South Africa (Pty) Ltd v Tshabalala-Msimang and Another NNO Pharmaceutical Society of South Africa and Others v Minister of Health and Another

• Jurisdiction: South Africa
• Judge: Hlophe JP, Traverso DJP and Yekiso J
• Judgment Date: 03 December 2004
• Citation: 2005 (3) SA 231 (C)
• Docket Number: 4128/04 and 4329/04
• Hearing Date: 20 September 2004
• Counsel: J J Gauntlett SC for the applicant in the New Clicks matter. M T K Moerane SC (with him P Coppin and B Vally) for the first and second respondents in the New Clicks matter. W Trengove SC (with him A Cockrell and M du Plessis) for the applicant in the Pharmaceutical Society matter. V Maleka SC (with him V Soni, M Sello and S Yacoob) for the first and second respondents in the Pharmaceutical Society matter.
• Court: Cape Provincial Division

Hlophe JP:

This is an opposed application for leave to appeal against the majority judgment which was handed down on 27 August 2004. [*] The judgment of the Court was written by Yekiso J. I concurred in his judgment. Traverso DJP wrote a D separate dissenting judgment. A few days after the judgment was delivered notice of application for leave to appeal was issued. The application for leave to appeal was made in terms of s 20(4)(b) read with s 20(1) of the Supreme Court Act 59 of 1959 and Rule 49(1) of the Uniform Rules of Court. Leave to appeal was made to the Supreme Court of Appeal. In terms of the notice thereof various grounds of appeal were set out. E

It is not necessary at this stage to refer to the various grounds of appeal save to state that New Clicks South Africa (Pty) Ltd (applicant), in terms of their notice of appeal, stated the following:

'Having regard to the minority dissenting judgment of Her Ladyship Traverso DJP, there is a reasonable possibility of another F court coming to a different conclusion to that arrived at by His Lordship [Yekiso J]. Her Ladyship, at para [175] of her minority judgment was of the view that the review application should succeed. It is submitted that this, in itself, should be sufficient for leave to appeal against the majority judgment to be granted.' G

Subsequent to the filing of notice of application for leave to appeal, counsel in the New Clicks South Africa (Pty) Ltd and Pharmaceutical matters indicated that they would like to see the Judges in order to make arrangements for the date and time of the hearing of the application for leave to appeal. Accordingly, an appointment with counsel was arranged for Thursday 2 September H 2004 at 09:30 in my chambers. There was also some exchange of communication between the parties. We also received heads of argument. The legal teams came to meet us in my Chambers as arranged. Mr Gauntlett SC indicated in my chambers and in the presence of Traverso DJP and Yekiso J that he (Mr Gauntlett) had been in I contact with President Howie of the Supreme Court of Appeal regarding the date for hearing the matter in the Supreme Court of Appeal. He told us further that President Howie had indicated that if J

Hlophe JP

leave were granted he would be able to squeeze in the matter and that it could be A heard in mid-November 2004. However, if the issue of leave to appeal were not finalised, the matter would only be heard in February 2005.

The fact that Mr Gauntlett had already been in touch with President Howie of the Supreme Court of Appeal regarding the matter pending before the Cape High Court was not well received by the respondents' legal team. In a letter written by the State Attorney B to the Registrar of the Supreme Court of Appeal dated 6 September 2004, it was said, inter alia:

'The application for leave to appeal has yet to be heard. The Full Bench that considered the matter will hear an opposed application for leave to appeal on 20 September 2004. We take strong exception to the attorneys of New Clicks and PSSA writing to you and to the Judge C President when the application for leave to appeal has yet to be heard. We believe that the conduct of New Clicks and PSSA is highly irregular. We oppose the request of New Clicks for a date to be set for the appeal and the directions to be given at this stage.'

Similarly the State Attorney wrote a letter to the applicants' legal representatives on 6 September 2004 in terms of which the following was recorded: D

'I wish to bring to your notice that my clients are perturbed at the conduct of your clients. We are not able to comprehend how your clients saw it fit to write to the Registrar of the Supreme Court of Appeal when the application for leave to appeal has yet to be heard. As you are no doubt aware, the application for leave to appeal is opposed. E It is rather presumptuous of your clients to assume that the leave to appeal will be granted or that it will be granted to the Supreme Court of Appeal. We also believe that your clients' conduct is contemptuous of the Full Bench that has yet to consider the application for leave to appeal. We will be writing to the Registrar of the Supreme Court of Appeal to indicate our attitude. We also intend to bring your letter to the attention of the Full Bench that will hear the application for F leave to appeal to register our protest at this conduct.'

Of course the applicants' attorneys of record replied in terms of a letter dated 7 September 2004. In terms of that letter the attitude of the applicants' attorneys was: G

'The tone of your telefax under reply is regrettable. However, it appears that you have misconstrued both the contents of our letter addressed to the Registrar of the Supreme Court of Appeal, as well as the purpose thereof. The suggestion of impropriety in our request to the Registrar of the Supreme Court of Appeal is misplaced for the following reasons: . . . Given, however, our understanding that the Supreme Court of Appeal roll for the last term of the year is being decided today [7 September 2004], our concern was to avoid any H prospect of this matter only being heard next year, simply because no request has been directed to the Supreme Court of Appeal for provision to be...