The first constitutional challenge to new health laws left dispensing doctors and the Department of Health each notching up a partial victory on Friday.
In a unanimous judgement on Friday, the Constitutional Court said regulations that force doctors to get licences to dispense drugs are not unconstitutional.
However, sections that tried to limit the number of pharmacies in an area were declared ultra vires and invalid.
The court said that laws requiring renewal of a dispensing licence will stand.
The application was brought by a group of dispensing doctors under the umbrella of the Affordable Medicines Trust, which included the National Convention on Dispensing (NCD), and was opposed by the Department of Health.
NCD spokesperson Norman Mabasa said he does not consider it a partial victory.
”It is a major victory,” he said. ”We have never been against licences and inspections.”
Mabasa said the NCD had just been concerned about regulations that would have limited dispensing doctors on the basis of competition in an area.
One of the factors in the application process was to consider the number of pharmacies already practising in an area.
Drug battle to come
For two days next week, reports Nawaal Deane, 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.