There is often little connection between the importance of a constitutional decision and the uncertainty of the outcome of the actual case in which the issue is raised.
Last year the Nkosazana Dlamini-Zuma- controlled Department of Health behaved as expected. It botched up the introduction of the South African Medicines and Medical Devices Regulatory Authority Act of 1998.
It ensured that the president brought the Act into operation before it had published new schedules to control the distribution of medicines. The old schedules were repealed when the 1998 Act was introduced, but no new schedules were promulgated.
As the director general of health stated in an affidavit to the court “the absence of an effective regulatory system may create the opportunity for medicines to be traded freely, whatever their strength, content and effect. There is also a danger that drug peddlers, pushers and users would exploit the opportunity and interpret the situation as one which allows them to trade, deliver, sell and use medicines and other substances.” The president and the health minister approached the high court for an order declaring the proclamation which enacted the new Act null and void. The matter finally came to the Constitutional Court after the full bench of the high court held that the legislature could not have intended the president to have exercised his discretion to enact the Act until it was ready. The Constitutional Court was thus required to confirm the decision to declare the proclamation null and void.
The result was probably not in doubt given that it was the president who sought a declaration of nullity of his action, but the process of reasoning to grant the president’s request presented far more of a jurisprudential challenge.
Of particular importance was the argument raised on behalf of the Pharmaceutical Manufacturers Association and the Crop Protection and Animal Health Association that the question whether the president acted ultra vires raised an issue under the common law and, accordingly, the dispute was not about a finding of constitutional invalidity. Thus the application by the president was not a matter for the Constitutional Court. So the dispute became more about the vexed question of which body is actually “baas of the legal plaas”, that is, the Supreme Court of Appeal (SCA) or the Constitutional Court (CC).
We know that the CC is the highest court of the land in respect of all constitutional matters. Hence decisions of the SCA on constitutional matters are subject to appeal to the CC. But how far does this provision actually extend? The SCA has fought a desperate rearguard action to retain supreme jurisdiction in a range of issues in which the respective jurisdictions of the two courts may be difficult to hermetically seal (to quote the CC).
In Commissioner of Customs and Excise v Container Logistics (Pty) Ltd, Judge Joos Hefer, on behalf of the SCA, said that judicial review under the Constitution and under the common law were different concepts. On this basis, administrative law remained under the supreme jurisdiction of the SCA as it dealt with law outside of the Constitution.
Not so, said president of the CC, Judge Arthur Chaskalson. As he wrote in the pharmaceutical judgment “the control of public power by the courts through judicial review is and always has been a constitutional matter …”.
Judge Chaskalson went on to say that there “are not two systems of law, each dealing with the same subject matter … There is only one system of law. It is shaped by the Constitution which is the supreme law, and all law, including the common law, derives its force from the Constitution and is subject to constitutional control.”
The judgment declares the supremacy of the Constitution and hence the CC in the clearest of terms. Its implication is truly profound.
Oh, I almost forgot – the CC did confirm that the presidential actions to introduce the new pharmaceutical Act were null and void.