Finally, the great pharmaceutical case has drawn to a close. In May last year two applications were launched challenging regulations promulgated by the Minister of Health Manto Tshabalala-Msimang that gave effect to a pricing system for the sale of medicines. The matter was initially heard by three judges of the Cape High Court as a matter of urgency in May 2004. On August 27 last year the court split two-to-one in favour of the minister.
The pharmacists and New Clicks sought leave to appeal to the Supreme Court of Appeal (SCA). Inexplicably, the decision as to whether leave should be granted to the SCA took until December 3 — by which stage the appellants had bypassed the High Court and taken their appeal directly to the SCA. That court decided that the High Court was effectively guilty of constructive denial of the appellants’ rights to, at least, have the SCA consider the merits of an appeal being heard.
On December 20 last year the SCA unanimously overturned the High Court judgement and set aside the regulations in their entirety. Judge Louis Harms, who authored this judgement, delivered an unprecedented rebuke to the High Court for what he considered was dilatory conduct. Judge President John Hlophe responded publicly, in effect saying that he was only concerned about the decision of the Constitutional Court.
The Constitutional Court heard the matter on March 15 this year. About six and a half months later, it has disgorged itself of a 445-page monster judgement. The volume and detail of the many judgements delivered are indicative of the anxious consideration and debate that took place in Braamfontein. Although a matter brought and heard on an urgent basis should be decided in a far shorter time than six and a half months (almost 17 months from the first hearing!), the final product of the court does serve as a partial mitigation for this delay.
The main judgement will probably be the last to be written by retired Chief Justice Arthur Chaskalson. In many ways it serves as an eloquent testimony to the style and fashion of his jurisprudence. Unlike the SCA judgement (admittedly written and delivered in some three weeks), this judgement contains no simple, broad overview or general dismissal of the pricing regulations. Each aspect of the regulations is interrogated with great forensic skill and in painstaking detail. In many cases, the chief justice found the regulations valid or, if not, capable of being cured by the judicial remedy of “reading in” words. But in some cases, provisions of the regulations are set aside.
The key finding concerns the invalidation of two of the regulations that provide for an “appropriate” dispensing fee, which can be charged by a pharmacist for the dispensing of medicines and scheduled substances in terms of the Medicines Act. The chief justice found that the pricing committee set up by the minister to deal with the formulation, inter alia, of an appropriate dispensing fee, had provided no models or other evidence as to how the fee was to be calculated. The decision to set the fee was not explained, nor was there any basis by which it could be concluded that account had been taken of the need to balance the price of medicines with the imperative to have viable pharmacists to dispense such medicine.
Not all the judges concurred with this finding. Five (including Deputy Chief Justice Dikgang Moseneke) disagreed, but five other judges agreed with the chief justice, the issue of the dispensing fee has been remitted to the pricing committee and the minister for reconsideration.
So who won? In the final analysis, the pharmacists probably scraped home in injury time by two goals to one — but, for once, the minister did not receive a judicial drubbing. She did, however, get a vigorous rebuke from the chief justice about her legal representatives’ refusal to deal with the merits of the case when it was argued before the SCA, an action which the chief justice described as “evincing a deplorable lack of respect for the SCA”.
The majority in the High Court’s judgement were not attacked as they were by the SCA, except for the comment by the chief justice that leave to appeal (refused in the final analysis by the majority of the High Court) should manifestly have been granted, and thus, by implication with far greater speed. The SCA was vindicated in its decision to hear the appeal without waiting for the High Court’s decision on leave to appeal, but yet again it was overturned in significant part by the Constitutional Court .
The scope of the judgement cannot be fully analysed in one Serjeant column. Suffice it to conclude that those who watch the Constitutional Court may be interested in the different levels of deference that certain of the judges revealed to the state. And that may well be the most important lesson to be drawn from this saga.