In line with its mandate the committee did formulate the required recommendations which it submitted to the first respondent for acceptance. Its mandate was to formulate recommendations which, if accepted, would enable the first respondent to make regulations relating to the introduction of a transparent pricing system for all medicines and Scheduled substances sold in the Republic and, on an appropriate dispensing fee to be charged by a pharmacist or by a person licensed in terms of section 22G(1)(a) of the Act. To revert to the Pricing Committee, it will be recalled that it is a committee that was appointed and established in terms of section 22G(1) of the Act. All these issues will be determined in the course of this judgment. If the conduct of the Pricing Committee does not fall within the ambit of the definition of administrative action contained in section 1 of the Promotion of Administrative Justice Act, the issue which will then call for determination is whether the conduct of the Pricing Committee is beyond judicial review. * that has a direct, external legal effect.įor the conduct of the Pricing Committee to be subject to review in terms of section 6 of the Promotion of Administrative Justice Act it has to embody all the elements enumerated in the preceding paragraph failing which the conduct complained of cannot be subject to review in terms of the Promotion of Just Administrative Act. * that is not specifically excluded by the Act * made in terms of the empowering provision From this definition, the following elements of the term administrative action emerge, namely: Whether such limitation conforms to the requirements of the limitation clause in section 36 of the Constitution and thus passes muster, does not call for determination in these proceedings. On the face of it, it would appear that the definition of administrative action in section 1 of the Promotion of Administrative Justice Act limits the scope of administrative action in section 33 of the Constitution. In terms of this definition conduct, in order to constitute administrative action as defined, has to have a direct, external legal effect and has to adversely affect rights of the individual or a group. Yekiso J then referred to section 33 of the Constitution and the definition section of the Promotion of Administrative Justice Act (PAJA) and continued as follows: Use of the authoritative power presupposes the administrative law relationship between the organ of state, as the subject of the administrative law relationship and the object, which could either be an individual or a group of individuals as the objects of such relationship. This relationship encompasses an element of subordination on the object of such administrative law relationship which, in the instance of these proceedings, ought to be the applicants. Yekiso J, for the majority, began his analysis as follows:įor the conduct of the Pricing Committee to constitute an administrative action as against the applicants, there ought to exist an administrative law relationship based on authoritative power. The first question before the court was whether or not the conduct of the Pricing Committee constituted administrative action. These were then published as final regulations. After this process, it made recommendations to the first respondent in the form of draft regulations. The Pricing Committee had taken representations on behalf of interested parties. ![]() ![]() The regulations dealt with a new pricing system for medicines in South Africa, as well as dispensing fees and wholesale pricing. The applicants sought the review and setting aside of a recommendation made by the Pricing Committee, and of regulations made pursuant to the Medicines and Related Substances Act. The final judgment is listed on SAFLII as Minister of Health and Another v New Clicks South Africa (Pty) Ltd and Others (CCT 59/2004) ZACC 14. This article discusses the first hearing of this matter in the Cape Provincial Division. However, note that this case went on appeal, first to the Supreme Court of Appeal and thereafter to the Constitutional Court, where the various judgments of Chaskalson, Ngcobo, Sachs, Moseneke and others had far-reaching effects on administrative law in South Africa. New Clicks South Africa (Pty) Ltd v Tshabalala-Msimang and Another NNO Pharmaceutical Society of South Africa and Others v Tshabalala-Msimang and Another NNO 2005 (2) SA 530 (C) is an important case in South African administrative law. For the South African Constitutional Court case on declaratory relief, see Minister of Health v New Clicks: in re Application for Declaratory Relief. ![]() This article is about the South African Cape Provincial Division case on administrative action.
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