Governance and Administrative Action | The New Clicks Case

This nightmare case started with acrimony in the Western Cape High Court. It concerned a challenge made by pharmacies to caps placed by the Department of Health on the price of medicines. In his court, Judge President John Hlophe and a colleague upheld the constitutional validity of the price caps. Deputy Judge President Traverso, however, came to the opposite conclusion. When the pharmacies sought leave to appeal, the Judge President refused for weeks on end to hear the matter and grant or refuse the application. After some months had passed, the pharmacies went straight to the Supreme Court of Appeal, which divided on whether they should hear the matter, and if so, what their decision should be. The matter was then taken to the Constitutional Court, which also divided, though not acrimoniously. Separate judgments from nearly all the Justices ran to nearly 1000 pages. They covered a wide range of procedural and substantive issues. There was general agreement that Judge President Hlophe should have granted leave to appeal, and done so speedily; that in the interests of enabling people to exercise their right to healthcare, the Department of Health had the right in principle to cap the price of medicines; and that the main contributing cost to the high price of medicines lay in the charges made by the big pharmas. Yet the Justices split evenly on the critical issue of the validity of the processes followed in determining the capped prices. Justice Sachs observes that he found himself pulled in both directions. Ultimately, he held that the principle of legality required that the Department of Health should have given prior notice for comment by the pharmacies before promulgating the new notion of placing caps on the price of medicines.