The Cape Bar Council has entered the fray over the medicine-pricing case with a firm rebuke to Cape Judge President John Hlophe.
Hlophe in a judgement last week rebuked a senior member of the Cape Bar, senior counsel Jeremy Gauntlett, for allegedly going over his head in approaching the Supreme Court of Appeal on the matter.
However, in a seven-page statement released on Thursday, council chairperson Owen Rogers; his deputy, Ashton Schippers; and two other senior advocates rejected Hlophe’s complaints.
They said the legal representatives of New Clicks — Gauntlett’s client in the case — were doing ”no more than their duty to represent their clients’ interests fearlessly and to the best of their ability while displaying due deference to the tribunals concerned”.
”Our only concern is with the professional conduct of one of our members, Advocate Gauntlett, SC, and in that regard we find no cause for complaint,” they said.
The Bar council statement is the latest instalment in a saga that has had South Africa’s legal fraternity agog, and has already drawn in the acting chief justice to defuse claims of racism.
In August, Hlophe rejected a bid by New Clicks and the Pharmaceutical Society of South Africa to overturn the government’s medicine-pricing regulations.
The pharmacists then sought leave to appeal to the Supreme Court of Appeal. Hlophe took more than two months to deliver his decision on this application, and in the meantime, the pharmacists went directly to the Supreme Court of Appeal, which has reserved judgement.
Hlophe delivered his leave to appeal ruling last Friday, and in an unprecedented move rejected the bid even though his own deputy, Jeanette Traverso, said in a minority opinion that she thought it should succeed.
In the ruling, Hlophe said it had been ”improper” for Gauntlett and the rest of New Clicks’ legal team to have been communicating with the Supreme Court of Appeal in the way they did, and that such conduct ”was presumptuous and … bordered on contempt for this court”.
The Bar council said in Thursday’s statement that though Hlophe had lodged no complaint with it, Gauntlett himself — ”as was proper in the circumstances” — drew its attention to the criticisms and asked it to investigate.
”We should in fairness state promptly and publicly that in our view there was nothing improper in Advocate Gauntlett SC’s conduct and that there is no basis for disciplinary proceedings to be pursued against him,” the statement said.
It said it has to be emphasised that New Clicks’ approach to the Supreme Court of Appeal was made openly, with correspondence copied to the state attorney, and that the state attorney’s office itself had approached the Constitutional Court at the same time to see when that court could hear an appeal.
”Had the Supreme Court of Appeal considered the conduct of New Clicks’ attorneys to be procedurally inconceivable or improper, presumptuous and contemptuous, that court would hardly have entertained the request and heard full argument on the case over two days.
”Quite apart from this consideration, it is not only the right but the duty of an advocate to fearlessly represent the interests of his or her client.” — Sapa