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dc.date.accessioned 2017-04-08T17:03:01Z
dc.date.available 2017-04-08T17:03:01Z
dc.date.created 2005-02-15 en
dc.identifier.citation [2005] ZACC 14
dc.identifier.citation 2006 (2) SA 311 (CC)
dc.identifier.citation 2006 (1) BCLR 1 (CC)
dc.identifier.uri http://hdl.handle.net/20.500.12144/2222
dc.title Minister of Health and Another v New Clicks South Africa (Pty) Ltd and Others en
dc.title.alternative CCT59/04 en
dc.identifier.casenumber CCT59/04 en
dc.date.hearing 15-16 March 2005
dc.contributor.judge The Court
dc.date.judgment 30 September 2005
dc.link.judgment http://collections.concourt.org.za/bitstream/handle/20.500.12144/2222/Full%20judgment%20%282%20Mb%29-4786.pdf?sequence=11&isAllowed=y
dc.concourt.casehistory The first Cape High Court judgment is reported as New Clicks South Africa (Pty) Ltd v Tshabalala-Msimang and Another NNO; Pharmaceutical Society of South Africa and Others v Minister of Health and Others 2005 (2) SA 530 (C). The second Cape High Court judgment which ordered that leave to appeal to the Supreme Court of Appeal be refused is reported as New Clicks South Africa (Pty) Ltd v Tshabalala-Msimang and Another NNO; Pharmaceutical Society of South Africa and Others v Minister of Health and Another 2005 (3) SA 231 (C). The Supreme Court of Appeal judgment granting leave to appeal and holding the regulations to be invalid is reported as Pharmaceutical Society of South Africa v Tshabalala-Msimang and Another NNO; New Clicks South Africa (Pty) Ltd v Minister of Health and Another 2005 (3) SA 238 (SCA) ; 2005 (6) BCLR 576 (SCA). This judgment concerns the application for leave to appeal to the Constitutional Court against the decision of the Supreme Court of Appeal. See also the declarator judgment of the Constitutional Court whereby the applicants sought an urgent order declaring the judgment and order of the Supreme Court of Appeal to be automatically suspended upon the bringing of the application for leave to appeal to the Constitutional Court: Minister of Health and Another v New Clicks South Africa (Pty) Ltd and Others In re: Application for Declaratory Relief.
dc.concourt.casehistory Application for leave to a appeal against judgment of the SCA, which had held certain regulations promulgated by the first applicant on the advice of the second applicant in terms of the Medicines and Related Substances Act, 101 of 1965to be invalid. The regulations purported to regulate the prices, across the supply chain, at which medicines would be sold. The Court was faced with procedural and substantive questions. In regard to the former, the Court was unanimous in holding that the SCA had, in the circumstances, been correct to assume jurisdiction on appeal despite the absence of a judgment on leave to appeal from the High Court. Further, the fact that the applicants had not presented argument on the merits to the SCA did not preclude them from raising arguments of substance before the CC. As to questions of substance, the Court answered three principal questions. The Court was divided over all of these issues. The three questions were whether the Promotion of Administrative Justice Act, 3 of 2000 (PAJA) applied to proceedings; the second whether the dispensing fee set by the regulations for pharmacists was appropriate, and third whether regulations relating to the single exit price to be charged by manufacturers and importers passed muster. As to PAJA, Chaskalson CJ and Ngcobo J found it to be applicable to the case. Langa DCJ, O'Regan and Van der Westhuizen JJ cincurred in this finding. Moseneke J found it unnecessary to decide whether PAJA applied or not (Madala, Mokgoro, Skweyiya and Yacoob JJ concurred). Sachs J found that PAJA applied to the fixing of the dispensing fee only. As to the dispensing fee, Chaskalson CJ and Ngcobo J found the fee set by the regulations to be inappropriate and invalid, although their reasoning was slightly different. Langa DCJ, O'Regan, Sachs and Van der Westhuizen JJ concurred. Moseneke J held that the fee was in the main, appropriate, although he held it to be inappropriate as in respect of rural and courier pharmacies. Madala, Mokgoro, Skweiyiya and Yacoob JJ concurred. The Court was unanimous in holding that the SCA's decision to set aside the regulations in their entirety could not stand. However the members of Court were divided in their conclusions regarding specific regulations. Challenges to 6 of the regulations were upheld unanimously, and 1 by a majority; challenges to 2 of the regulations were dismissed by a majority. The orders of the Cape High Court and the SCA were set aside and replaced with an order reflecting the above.


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