The battle over the government’s medicine pricing regulations will almost certainly end up on Constitution Hill. But whatever the highest court in the land decides about dispensing fees and single exit prices, the legal community will be watching for clues to the state of relations between the executive and the judiciary.
The weight the Constitutional Court gives to the government’s desire to achieve the objectives of the bill of rights (like access to affordable healthcare) relative to the constitutional principle of ”legality”, will be an important signal of the direction the legislative and judicial processes take over the next decade, senior legal figures say.
Whatever happens at the Constitutional Court, Monday’s decision by the Supreme Court of Appeal (SCA) to hear an application from the Pharmaceutical Society of South Africa (PSSA) and New Clicks is a legal watershed, observers say.
The Bloemfontein court delivered a stern rebuke to Judge President of the Cape High Court John Hlophe for delaying the outcome of the case, and struck down the regulations on the basis that they are not consistent with the rule of law.
The regulations are invalid, said Judge Louis Harms in a unanimous decision, on the grounds that they ”on many material aspects, failed the test of legality”.
That is, Minister of Health Manto Tshabalala-Msimang exceeded the powers conferred on her by both the Medicines Act and the Constitution.
”The SCA is laying down a significant marker, but it is doing more than that. It is saying it does not matter whether you support the executive or not, you can’t trample on people’s rights,” one high-level legal source said.
A full Bench of the Cape High Court originally heard the case in June, and in late August found for the minister of health in a judgement written by Judge James Yekiso, with Judge Hlophe concurring. Deputy Judge President Jeannette Traverso dissented.
The case quickly became entangled in tensions over race in the Cape Division, with Judge Hlophe angrily rebutting what he said were racist rumours that he, rather than Judge Yekiso, had written the judgement and complaining of a systematic campaign to ”undermine the talent and integrity of African judges”.
Advocates and judges were drawn into the row, and acting Chief Justice Pius Langa intervened in a bid to give the debate over transformation in the judiciary a less acrimonious tone.
But controversy flared in November after New Clicks and the PSSA had waited five weeks without hearing from Judge Hlophe whether they could appeal against the decision. Usually appeal decisions are handed down quickly.
When Hlophe declined to discuss the delay with them, the pharmacists’ legal teams approached the SCA, to which they intended to apply directly for leave if the Cape High Court refused it.
And Judge Harms — mandated by Lex Mpati, the Judge President of the SCA — wrote to Hlophe asking him to forward a copy of his judgement when it was ready.
In a widely circulated reply, Judge Hlophe tore into Judge Harms, who, he suggested, did not have the seniority to address him and the applicants.
Judge Harms’s judgement is a stinging reply — and sources in the Cape Division say it has been widely welcomed, even among those who might previously have been allied with Judge Hlophe over transformation.
Judge Harms cites delays brought about by the government’s legal team and Hlophe’s tardiness, suggesting that there is little in the ”13 well-spaced typed pages” of judgement to justify the time he took over it.
”In appropriate circumstances, where there is deliberate obstructionism on the part of a court of first instance, or sheer laxity, or unjustifiable or inexplicable inaction, or some ulterior motive, this court may be compelled in the spirit of the Constitution and the obligation to do justice, to entertain an application of the kind presently before us,” he wrote.
Norman Arendse, the chairperson of the general council of the Bar, says the crucial thing about the decision is that it ”gives real effect to the old adage that ‘justice delayed is justice denied’”.
”The important thing about this is the effect that it will have on the administration of justice,” Arendse said, ”not some racial spat.”
Judge Harms was appointed by Judge Mpati, he said, and Judges Navsa and Mthiyane agreed with him. Two other senior legal sources agreed, but added that the debate could shift from race to the independence of the judiciary.
”Why has the state sought to delay this? Why have judges apparently colluded in that delay? When a senior judge asks those kinds of questions it is very serious,” one said. ”This is a watershed divide between executive- minded judges and the rest.”
The Treatment Action Campaign (TAC), which was represented at the SCA as a ”friend of the court”, plans to play the same role if the case goes to the Constitutional Court.
”It is a test,” said TAC leader Zackie Achmat. ”If the Constitutional Court backs off and supports Judge Hlophe on process, they are killing off the SCA if they support him on substance, it means the government can do what it likes.”
One leading advocate said because Judge Harms had been compromised by his role in 1990 as head of the Harms commission, which failed to uncover the truth about apartheid death squads, the final message would need to come from the Constitutional Court.
”If one hopes for a society where the judiciary is independent it may depend on where people like [Constitutional Court Judges] Ngcobo and Moseneke, who have some credibility with the government, come down. If they agree with the SCA, this whole race thing will go away,” he said.
Hlophe’s own response to the SCA judgement was to tell the Cape Times he ”couldn’t care less”, a comment that sources at all levels of the legal profession say was inappropriate.
”As the sitting judge of this court you very much care what a higher court says,” Arendse said. It would now be difficult for Hlophe to do the work of reuniting the Cape Division in the face of intense public scrutiny, he suggested.
Other insiders questioned how Hlophe could be effective in his role as judge president, suggesting that his conduct had undermined his authority.
”He’s alienated everyone, including his natural allies,” one source at the Cape High Court said.
Meanwhile, New Clicks’s group leader Trevor Honeysett says the SCA decision has restored his faith in the judiciary.
”After what we saw happening in the Cape High Court we were most concerned and disturbed at the view that the Judge President took, but the process vindicates us hanging in there.”
Honeysett stops short of claiming victory, saying too many uncertainties remain. He is still hoping for a negotiated solution with the department.
”The spirit still exists in the industry to ‘Codesa’ pharmacists have been told not to exploit this interim situation by charging excessive prices [Congress for a Democratic South Africa] this thing. To go into a room and say, don’t come out till you have a solution. I’d like to think there’s the maturity to get there, but I am not sure.”
If the SCA decision stands, that will involve going back to square one.
”As found, the regulations are fatally defective,” Judge Harms wrote. ”It will be extremely difficult, if not impossible, to draft sensible regulations unless the act is amended.”
Medicine price confusion set to continue
Confusion over what pharmacists can charge for medicine seems set to persist into the new year, with the Department of Health saying the regulations will remain in place during its appeal to the Constitutional Court, and pharmacy groups insisting the contrary, reports Nawaal Deane.
New Clicks group leader Trevor Honeysett said the group would not adjust prices much, and cautioned independent retailers against clawing back the losses of the past few months with sharp increases.
Lucky Mabuza, a pharmacist in rural Mpumalanga, said he had reinstated the prices he charged before the regulations came into effect. He now charges a single exit price plus 36%, instead of the 26% stipulated by the regulations.
The chairperson of the PSSA, Ivan Kotze, said ”the end result for consumers is that the price should be cheaper than it was before August 2004.” He said pharmacists have been told not to exploit this interim situation by charging excessive prices.
The Department of Health has applied to the Constitutional Court for leave to appeal against the judgement of the Supreme Court of Appeal.
However, this does not mean the regulations had been reinstated, said Martin Versfeld, a partner at Webber Wentzel Bowens. He said the Supreme Court judgement would only be suspended if the Constitutional Court granted the application.