The dispute between the Pharmaceutical Society and the Minister of Health began as an urgent application for a declaration of invalidity of regulations relating to a transparent pricing system for medicines, which in the minister’s view would reduce costs to patients.
On August 27 two judges of the Cape High Court dismissed the urgent application and a third dissented.
The applicants applied to the Cape court, as they must, for leave to appeal to the Supreme Court of Appeal (SCA). They were heard on September 20.
By November 17 the Cape court had not delivered a judgement. In an unprecedented move, the SCA decided to hear the applicants as to whether leave should be granted and, if successful, then on the merits of the challenge.
On the morning of the hearing, November 29, Judge John Hlophe, judge president of the Cape High Court, announced that judgement on leave was to be delivered on December 3. The SCA did not wait but went ahead with its hearing — the strenuous objections of the minister’s senior counsel notwithstanding. The Cape court, by the same 2:1 split, refused leave.
On December 20 the SCA handed down its judgement. After examining Judge Hlophe’s decision to refuse leave, the lack of explanation for the delay of some 11 weeks in so deciding, the fact that the case had been heard in the first place as a matter of urgency by the Cape Court, Judge Harms concluded that “the only conclusion can be that the delay was not only regrettable, it was unreasonable — so unreasonable in fact that it could only be interpreted as a refusal of leave”. The delay of the Cape court in deciding on the question of leave amounted, in effect, to a denial of the applicants’ rights to prosecute an appeal.
This judgement raises a number of disturbing questions. According to Judge Harms, Judge Hlophe told the parties on October 20 that a second draft of the leave judgement was being prepared, yet it took almost another month for the “13 well-spaced typed pages” to be delivered. Similarly, Judge Harms notes that it took longer to deliver this 13-page judgement then it did to deliver “the two compendious judgements [in all about 180 pages]”.
Judge Harms is also critical of the minister’s legal team, which refused to argue the merits at the SCA. When asked by the SCA “whether the respondents could provide a date convenient to them to argue on the merits, the question failed to elicit a reaction”.
This is most disturbing. Accepting that the regulations were designed to reduce the cost of medicine, why would the state prefer to act as an obstructive litigant rather than cooperate to ensure that its regulations were subjected to scrutiny by a higher court? And what will the fall-out be regarding this unprecedented rebuke of a senior judge president?