For two days next week, the battle over drugs pricing will move to the Constitutional Court as Minister of Health Manto Tshabalala-Msimang takes on pharmacy groups.
The Health Department will ask the country’s highest court for permission to appeal in a bid to overturn a Supreme Court of Appeal (SCA) judgement, which threw out ”transparent pricing” regulations last year.
The regulations were originally challenged in the Cape High Court by New Clicks and the Pharmaceutical Society of South Africa. They were upheld in a split decision, with Judge President John Hlophe and Judge James Yekiso finding for the department, and Deputy Judge President Jeanette Traverso dissenting.
The SCA threw them out following an unusual, and hugely controversial appeals process, after Judge Hlophe took five weeks to decide on leave to appeal, and then declined it.
The government believes the regulations give legal effect to the constitutional right to affordable medicine, and the industry argues that capping dispensing fees at R26 endangers the future of pharmacies and will limit access to drugs.
The Treatment Action Campaign, which is appearing as a friend of the court, is arguing that while the regulations were ill-considered, the ”transparent pricing” law on which they are based is sound.
The case will not only test the constitutionality of the regulations, however. Many believe it will be a turning point in the debate over the relationship between the judicial and executive branches of the state.
Attention has been focused on the case not just because of controversy over the R26 cap, but because its initial passage through the Cape High Court last year sparked Judge Hlophe’s allegations of racism in the division.
The race row has since culminated in his 43-page report blaming senior advocates and judges for ”pervasive racism”. Jeremy Gauntlett, the advocate representing New Clicks in the case, and Judge Traverso were among those he named.
Appeal court Judge Louis Harms was scathing about numerous aspects of the original judgement and hinted that there had been collusion between the state and the Cape court in an attempt to ensure that no appeal was heard by the SCA.
That may have been a factor in the African National Congress’s January 8 statement suggesting that ”the collective mindset” of judges was dangerously out of tune with the aspirations of ”the masses”.
At an ANC national executive committee meeting ahead of the statement, Tshabalala-Msimang was prominent among a group who pushed for more action on the transformation of the judiciary. She seemed outraged by what she saw as judicial interference in the executive’s policy-making powers.
Legal commentators said argument would relate primarily to whether the SCA had had jurisdiction to consider the matter. But there would inevitably be a racial dynamic given that Judge Hlope had ruled in favour of the regulations, while Judge Harms, whose inquiry into third force activities famously failed to finger the nationalist government for involvement, struck them down.
”All the [constitutional] judges pride themselves on being fearlessly independent. They cannot ignore the politics but it will not mar the judgement on this issue,” said one senior legal figure.
The three arguments
- Pharmaceutical Society of South Africa
- Department of Health
- Treatment Action Campaign
Compiled by Nawaal Deane