Clicks Group Ltd and Others v Independent Community Pharmacy Association and Others (644/2020) [2021] ZASCA 167; [2022] 1 All SA 297 (SCA) (3 December 2021)

Clicks Group Ltd and Others v Independent Community Pharmacy Association and Others (644/2020) [2021] ZASCA 167; [2022] 1 All SA 297 (SCA) (3 December 2021)

The majority held that the Clicks Group's corporate structure does not contravene regulation 6(d) of the Regulations relating to Ownership and Licensing of Pharmacies. The court found that the concept of 'beneficial interest' does not extend to shareholders in the context of South African law, as company assets are distinct from shareholder interests. The Director-General and Appeal Committee acted lawfully in dismissing the complaint, as the jurisdictional requirements for revocation of licences were not met and no evidence was adduced of actual conflict of interest or harm to patients. The constitutional challenge to section 22A was rejected as lacking merit, with the court emphasizing...

Citation
[2021] ZASCA 167
Parties
Appellant: Clicks Group Ltd; Appellant: New Clicks South Africa (Pty) Ltd; Appellant: Unicorn Pharmaceuticals (Pty) Ltd; Appellant: Clicks Investments (Pty) Ltd; Appellant: Clicks Retailers (Pty) Ltd; Respondent: Independent Community Pharmacy Association; Respondent: Minister of Health; Respondent: Chairperson of the Section 22(11) Appeal Committee; Respondent: Director-General of the Department of Health
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
3 December 2021
Case Number
644/2020
Procedural Posture
Civil Appeal / Appeal From Western Cape Division of the High Court
Outcome
Appeal upheld; high court order set aside and replaced with dismissal of the application.
Judges
Petse, Mathopo, Makgoka, Plasket, Kgoele
Legal Topics
Pharmacy Licensing, Beneficial Interest, Corporate Structure, Regulation Interpretation, Right to Health, Conflict of Interest
Commercial and Corporate Administrative Law Constitutional Law Pharmacy Licensing Beneficial Interest Corporate Structure Regulation Interpretation Right to Health +1 more

Case Brief

Summary, issues, holding and outcome

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Parties

Clicks Group Ltd

Appellant

New Clicks South Africa (Pty) Ltd

Appellant

Unicorn Pharmaceuticals (Pty) Ltd

Appellant

Clicks Investments (Pty) Ltd

Appellant

Clicks Retailers (Pty) Ltd

Appellant

Independent Community Pharmacy Association

Respondent

Minister of Health

Respondent

Chairperson of the Section 22(11) Appeal Committee

Respondent

Director-General of the Department of Health

Respondent

Procedural Posture

Civil Appeal / Appeal From Western Cape Division of the High Court

Legal Issues

  1. 1 Whether the Clicks Group's corporate structure contravenes regulation 6(d) of the Regulations relating to Ownership and Licensing of Pharmacies by holding beneficial interests in both community and manufacturing pharmacies.
  2. 2 Whether the Director-General and Appeal Committee had the power to revoke the pharmacy licences based on the alleged contravention.
  3. 3 Whether the concept of 'beneficial interest' in regulation 6(d) extends to shareholders in the context of South African law.

Ratio Decidendi

The majority held that the Clicks Group's corporate structure does not contravene regulation 6(d) of the Regulations relating to Ownership and Licensing of Pharmacies. The court found that the concept of 'beneficial interest' does not extend to shareholders in the context of South African law, as company assets are distinct from shareholder interests. The Director-General and Appeal Committee acted lawfully in dismissing the complaint, as the jurisdictional requirements for revocation of licences were not met and no evidence was adduced of actual conflict of interest or harm to patients. The constitutional challenge to section 22A was rejected as lacking merit, with the court emphasizing...

Court Disposition

Appeal upheld; high court order set aside and replaced with dismissal of the application.

Orders

  • The appeal is upheld with costs, including the costs of two counsel.
  • The order of the high court is set aside and replaced with: 'The application is dismissed with costs including the costs of the two counsel where so employed.'