The ongoing legal battle between Minister of Health Manto Tshabalala-Msimang and pharmacists is exposing deep racial and political divisions in the Cape Town legal community and raising questions about the independence of the judiciary.
Evidence of a clash between recently appointed black judges and white advocates has surfaced in the Cape High Court, and State Attorney Gadija Bernhardien, acting on behalf of the minister, has written a highly unusual letter to the registrar of the Constitutional Court in an effort to ensure that pharmacists’ challenge to the contentious medicine pricing regulations is heard there, rather than in the Supreme Court of Appeal.
The Pharmaceutical Society of South Africa (PSSA) and retail group New Clicks are currently awaiting the outcome of their application to the Cape High Court for leave to appeal the court’s earlier dismissal of their request that regulations limiting pharmacists to a maximum dispensing fee of R26 be declared void.
A full Bench of the court, comprising Judge President John Hlope, Deputy Judge President Jeanette Traverso and Judge Andrew Yekiso, heard the original application.
In a split decision, with Judges Hlope and Yekiso in the majority, the court found for Tshabalala-Msimang, awarding costs on the punitive scale of two counsel.
Judge Traverso wrote a 77-page dissenting opinion, arguing that the regulations were vague to the point of being impossible to implement and that they had been drafted in a manner inconsistent with legislation governing the promotion of administrative justice.
After judgement on the issue of leave to appeal was reserved on Monday, Judge President Hlope issued a robust attack on rumours at the Cape Bar that he, rather than Judge Yekiso, had written the decision. ”My brother wrote the judgement,” he said. ”He is capable of writing such a judgement. [These rumours] are an insult to me and to my brother.”
Numerous legal sources say Hlope reacted angrily because of a widespread perception that senior white advocates have little respect for recently appointed black judges, believing themselves to have superior experience and more substantial capacity for the scholarship that complex cases require.
Several said it was felt that newer black judges were reluctant to make politically risky decisions. Others suggested Hlope might be distancing himself from a problematic judgement in anticipation of a harsh assessment by the Supreme Court of Appeal.
Judge Yekiso did make some remarks from the Bench on Monday, which appeared to be explicitly political in character.
During argument by PSSA advocate Wim Trengove on the crucial issue of whether regulations were too vaguely worded and contradictory to be implemented, he interjected to say: ”The regulations would not have been vague if they had been drafted in Xhosa” — a remark characterised by several advocates unconnected with the case as ”extraordinary”. ”That really shows how close to the surface the political issues are here,” one said.
Political concerns also appear to be behind the letter by Bernhardien to the Constitutional Court, asking when the court might be ready to hear the case.
As the respondent, Tshabalala-Msimang cannot ask any court to hear the case — but in the letter, Bernhardien suggests that New Clicks and the PSSA have taken a slower route to a decision by going to the appeal court, and are not genuinely committed to an expeditious solution.
”Our clients maintain the pharmacists are not applying the regulations on the pretext of uncertainty, causing great prejudice to the South African public generally. Our clients are therefore desirous of having this matter determined as finally as possible,” she writes.
She goes on to warn that if the appeal is successful, Tshabalala-Msimang will somehow bring the case to the Constitutional Court.
Asked what she hoped to achieve with the letter, Bernhardien said that it — and the heads of argument in the appeal — made that clear.
Legal experts say the only possible explanation for these moves is a suspicion that the hard issues of administrative law will get closer scrutiny at the appeal court, while political considerations will get more play at the Constitutional Court.
”There will be more hard law and less political grandstanding at the appeal court,” one said. ”And you just have to look at some recent decisions of the Constitutional Court — for example, the decision not to extradite alleged mercenaries from Zimbabwe — to see why the health department might fancy their chances there.”
The majority decision not only found that New Clicks and the PSSA had been properly and adequately consulted during the making of the regulations, but that Tshabalala-Msimang was not bound by the provisions of the Promotion of Administrative Justice Act in the making of regulations.
Judge Traverso argued the reverse on both counts, saying that the consultation process conducted by the pricing committee set up to advise on the regulations had been deeply flawed, and that the minister was indeed bound by the administrative Justice Act or, alternatively, by the constitutional principle of legality.
Were the majority decision to become legal precedent, it could vastly increase ministerial discretion to make rules by diktat, observers say.
It is almost a foregone conclusion, according to lawyers consulted by the Mail & Guardian, that leave to appeal will be granted.
”The test is whether judges may reasonably differ — and they already have on this matter, so it has to go on appeal,” one advocate said.
If the Cape High Court does not grant leave, New Clicks’s attorney Martin Versfeld says the parties will apply directly to the Supreme Court of Appeal. If necessary, they will go to the Constitutional Court after that, he said.