Publication: The Star Issued: Date: 2004-12-21 Reporter: Jeremy Gordin Reporter: Sheena Adams

Judges in Ugly Spat

 

Publication 

The Star

Date 2004-12-21

Reporter
Jeremy Gordin, Sheena Adams

Web Link

www.thestar.co.za

 

Unseemly war of words in case over cheaper drug pricing regulations escalates, splitting the judiciary

Two of South Africa's most senior judges have again taken a swipe at each other over litigation around medicine-pricing regulations - widening an already glaring rift in the country's judiciary.

Senior Supreme Court of Appeal (SCA) Judge Louis Harms - in setting aside the controversial regulations yesterday following an appeal by the Pharmaceutical Society of SA (PSSA), New Clicks and others - berated Cape High Court Judge President John Hlophe for denying the appellants the right to a fair hearing.

This was because he had delayed his decision on their application for leave to appeal against an August 27 judgment he had given upholding the regulations.

Judge Hlophe reacted to the judgment and Judge Harms's comments yesterday by saying he "couldn't care less" and that the matter was certain to be finally decided in South Africa's highest court, the Constitutional Court.

The salvoes by the two judges are the latest in a series of acrimonious statements that started when the applicants - frustrated at Judge Hlophe's 10-week delay *1 in deciding on their application for leave to appeal against his judgment - approached the SCA directly, a move unprecedented in South Africa law.

The SCA nevertheless decided to take on the appeal, infuriating Judge Hlophe, who then decided on December 3 against the application for leave to appeal. But the SCA heard the appeal anyway.

The effect of yesterday's SCA judgment is that the Department of Health has to come up with a fresh set of medicine-pricing regulations for pharmacies.

This ruling means the pricing regulations, promulgated on April 30 by Health Minister Manto Tshabalala-Msimang in terms of the Medicines and Related Substances Act, are invalid and that consumers, pharmacists and the government are back to square one.

The SCA also ruled that the filing of an application for leave to appeal before a ruling is made by a high court (in this case, the Cape High Court) was not "fatal", provided the lower-court ruling was given before the judgment of the SCA.

In this case, the Cape High Court ruling was given two days after close of argument before the SCA.

The SCA said the delay in making a ruling by the Cape High Court had been in the circumstances so unreasonable that it amounted to a breach of the right to a fair hearing and to a constructive refusal of leave to appeal.

The minister was ordered to pay the costs in both courts - for the hearing in the Cape High Court and in the SCA.

Judge Harms, who wrote the judgment for the SCA, said:

"In a country struggling with limited resources to meet the needs of the poor it is laudable and noble to strive to reduce the costs of medicines. We are, however, a nation that subscribes to the primacy of the rule of law, and all measures to that end must comply with the principle of legality."
 
Judge Harms said the state had not offered comprehensible evidence on how pricing mechanisms in the new regulations had been reached, but that the appellants had offered the expert evidence of Dr Robert Stillman, a highly qualified economist.

According to Judge Harms, Stillman had convincingly shown that "the fees (earned in terms of the new regulations) would not provide pharmacists in any of the sectors analysed with sufficient revenues to cover their operating costs".

A great deal of bitterness has emerged over the past few months in connection with the issue of leave to appeal because, even though applications for leave to appeal had been heard by the Cape High Court on September 20, no decision was handed down by Judge Hlophe until December 3 - and in the meantime, the PSSA, New Clicks and the others had gone directly to the SCA.

Judge Hlophe had claimed that some members of the Cape bar were racist. This referred to a rumour that had allegedly circulated in Cape Town after the August 27 judgment: that it had been Judge Hlophe who had written the original judgment, not Judge James Yekiso.

Judge Hlophe also reacted angrily to Judge Harms's request in November for sight of his judgment on leave to appeal when it appeared.

Judge Harms also said yesterday that he had looked in vain in Judge Hlophe's judgment, refusing leave to appeal, for "any clues as to why it had to be delayed".

"The first seven pages of the judgment deal with the reason why the application for leave was not dealt with in chambers but in open court. Those reasons are academic and have nothing to do with the question whether or not leave should have been granted.

"During the course of this discussion, (Judge Hlophe) took umbrage to the applicants' direct approach to the head of this court (the SCA) to determine the availability of dates before the application had been determined, as if it amounted to some kind of lese-majesté (affront).

"Apparently (Judge Hlophe) did not appreciate fully that the applicants were entitled to approach this court either by way of an appeal or an application for leave to appeal, irrespective of the outcome of their applications before the (Cape High) court."

Judge Harms said some legal people believed that requests for "hurried justice" should not be met only with judicial displeasure and castigation, but the severest censure.

"They are seriously mistaken on both counts," said Judge Harms.

"First, parties are entitled to inquire about the progress of their cases and, if they do not receive an answer or if the answer is unsatisfactory, they are entitled to complain. The judicial cloak is not an impregnable shield providing immunity against criticism or reproach."
 
In his reaction yesterday, Judge Hlophe told The Star: "To be frank, I couldn't care less. One thing is for sure: the matter is a constitutional matter and will end up in the Constitutional Court."

On Judge Harms's contention that the delay in deciding on the application for leave to appeal was "not only regrettable" but "unreasonable", Judge Hlophe said: "There was no delay in my view. I don't know what they are talking about."

Democratic Alliance justice spokesperson Sheila Camerer said the case had also been "noteworthy" for the role played by Judge Hlophe.

"His denial to the Pharmaceutical Society and others of leave to appeal, after a split judgment of his own court, was unprecedented.

"His decision and his subsequent incorrect accusations of racism at the bar have split the Cape legal community and have raised the spectre nationally of a racially divided judiciary," she said.

With acknowledgements to Jeremy Gordin, Sheena Adams and The Star.

*1 In my action for damages (which was filed in August 2002) where the Defendants raised a legal exception, firstly it took one whole year just to get the matter to court. The hearing was held during the first week of February 2004. Eleven (11) months - note months, not weeks - we are still awaiting the judgment of Mr Justice George Webster *2 out of the Pretoria High Court.

Noting earlier legal precedent out of the same court, we very politely enquired in writing as to the status and progress of the judgment, firstly to the judge himself (in October) and a month later to the Deputy Judge President. This course of action is what is recommended by the earlier legal precedent. We received written responses from the DPJ on the same days as our own letters. We have never received any written response from Judge Webster.

However, in the last week of November Judge Webster's registrar telephoned our legal correspondents in Pretoria to advise them that the judgment would be issued during the week starting Monday 2004-12-06. The week duly arrived and the days passed until the Thursday without hearing anything. As a result, the legal correspondents telephoned Judge Webster's registrar to enquire whether the judgment would be delivered the next day, that being the last day of the week indicated by them. He was met with an irritated response to the effect that the judgment would be delivered when the judge was ready and that we would get two days notice thereof. Our legal correspondent later received a further telephone call from Judge Webster's registrar to say that the judgment would be delivered during the week starting Monday 2004-12-13.

Well today is Tuesday 2004-12-21 and, as far as I know, no judgment has been delivered on this matter by Judge Webster. The court is now in recess and it seems unlikely that a judgment will be delivered until after the court recess in the second half of January, if at all.

In their latest judgment in the Pharmaceutical Society of South Africa (PSSA) vs The Minister of Health matter (Case Nos 542/04 and 543/04), Mr Justice Harms quoted a previous SCA judgment as follows :

‘Much more than a matter of mere courtesy is involved. By such conduct the administration of justice is hampered, and may be seriously hampered, by an arbiter of justice himself, whose responsibility it is to render it effective and not add judicial remissness to its already irksome delays.’
 
In the exception matter, like in the PSSA matter, the long delay is not only hampering the rendering of justice, but is aggravated by a lack of courtesy and competence.

The SCA judgment goes on to quote the following

‘It seems to me that this is the right that can most appropriately be invoked by persons who complain of delay by a court in delivering judgment or for that matter failure to deliver judgment. Surely, if the protection of the law means anything, it must mean that persons are entitled to have recourse to the appropriate court or tribunal prescribed by law for the purpose of enforcing or defending their rights against others or resolving disputes of one kind or another. It is axiomatic that such a right is meaningless without a decision by the court or tribunal to which the claim or dispute is referred for
adjudication.’
 
and :
‘delay in producing a judgment would be capable of depriving an individual of his right to the protection of the law, as provided for in section 4(b) of the Constitution of Trinidad and Tobago, but only in circumstances where by reason thereof the judge could no longer produce a proper judgment or the parties were unable to obtain from the decision the benefit which they should.’
 
The judiciary is not the right place for empowerment.

Cry, the Beloved Country.