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South Africa Judgment

North Gauteng High Court, Pretoria

IPA Foundation (NPC) v South African Pharmacy Council (Leave to Appeal) (7452/2022) [2023] ZAGPPHC 1154 (18 September 2023)

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Professional case brief

Research organized from the available case record

Source document

01

Holding and result

Although the grounds of appeal do not present a reasonable prospect of success, the subject matter of the review application is of significant public importance, particularly regarding the broadening of access to essential medicines and the statutory authority of the South African Pharmacy Council. The issue involves the interpretation of different statutes and the scope of administrative power, which are matters of law warranting consideration by the Supreme Court of Appeal. Therefore, leave to appeal is granted on the basis of compelling reasons related to the legal significance and public interest of the issues raised.

Court disposition

Leave to appeal granted to the Supreme Court of Appeal; costs are costs in the appeal.

Orders

  • Leave to appeal is granted to the Supreme Court of Appeal.
  • Costs are costs in the appeal.

02

Material facts

Parties

IPA Foundation (NPC)

Applicant Counsel: Adv. J.C. Uys SC

South African Pharmacy Council

Respondent Counsel: Adv. B. Leech SC

03

Procedural history

  1. Posture

    Leave to Appeal / Application for Leave to Appeal Following Review Judgment

04

Questions and positions

Legal issues

Party arguments

Applicant
The applicant contends that the South African Pharmacy Council exceeded its statutory authority by utilising 'pharmacist-initiated-treatment' and 'primary drug care therapy' to enable pharmacists to provide specialised services such as PIMART, which were previously reserved for medical practitioners. The applicant argues that the empowering provisions do not authorise such an expansion and that the matter raises important questions about access to essential medicines and the proper interpretation of the relevant statutes.
Respondent
The respondent maintains that the Council acted within its statutory mandate and that the empowering provisions permit the use of pharmacist-initiated treatment to broaden access to PEP, PREP, first-line ART, and TPT. The respondent asserts that adequately trained pharmacists are capable of providing these specialised services and that the administrator's decision was lawful and justified under the applicable statutes.

05

Court’s reasoning

  1. 01

    Superior Courts Act 10 of 2013, s 17

    Leave to appeal may be granted only if the judge is of the opinion that the appeal would have a reasonable prospect of success or if there are compelling reasons for the appeal to be heard.

06

Ratio, limits and disposition

Ratio decidendi

Although the grounds of appeal do not present a reasonable prospect of success, the subject matter of the review application is of significant public importance, particularly regarding the broadening of access to essential medicines and the statutory authority of the South African Pharmacy Council. The issue involves the interpretation of different statutes and the scope of administrative power, which are matters of law warranting consideration by the Supreme Court of Appeal. Therefore, leave to appeal is granted on the basis of compelling reasons related to the legal significance and public interest of the issues raised.

Obiter and limits

  • The judgment is delivered electronically and sent to the parties as a courtesy.
  • Finality on the issue of broadening access to PEP, PREP, and first-line ART and TPT is necessary for the public health sector.

Court disposition

Leave to appeal granted to the Supreme Court of Appeal; costs are costs in the appeal.

  • Leave to appeal is granted to the Supreme Court of Appeal.
  • Costs are costs in the appeal.

Source and reliance status

North Gauteng High Court, Pretoria

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Judgment text

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Source document

North Gauteng High Court, Pretoria

Judgment

[2023] ZAGPPHC 1154

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF

SOUTH AFRICA

GAUTENG DIVISION,

PRETORIA

CASE NO: 7452/2022

(1) REPORTABLE: YES/NO

(2) OF INTEREST TO OTHER JUDGES: NO

(3) REVISED: NO

Date: 18 September 2023

E van der Schyff

In the matter between:

THE IPA FOUNDATION (NPC)

APPLICANT

and

SOUTH

AFRICAN PHARMACY COUNCIL

RESPONDENT

JUDGMENT

Van der Schyff J

Introduction

[1] The Superior Courts Act 10 of 2013, provides for leave to appeal to be given only in two circumstances.[1] The first is where the judge concerned is of the opinion that an appeal would have a reasonable prospect of success. The second is that there are some compelling reasons why the appeal should be heard.

[2] I am not of the view that, on the grounds of appeal raised by the applicant, the appeal would have a reasonable prospect of success. Comprehensive reasons were provided for the order granted in the written judgment handed down, and I do not propose to rehash those.

[3] The subject matter of the review application, is, however, of great importance. Not only as far as it is necessary to obtain finality on the issue of broadening access to PEP, PREP, and first-line ART and TPT, but as far as it relates to the South African Pharmacy Council’s authority to utilise ‘pharmacist-initiated-treatment’ and 'primary drug care therapy’ as a vehicle to enable adequately trained pharmacists to provide specialised services, like PIMART, previously rendered by medical practitioners. It essentially boils down to the question of whether the administrator who took the decision was authorised to do so by the empowering provision.

[4] The issue that moved me to grant leave to appeal is an issue of law and involves the interpretation of different statutes. It is thus appropriate to grant leave to appeal to the Supreme Court of Appeal.

ORDER

In the result, the following order is granted:

1. Leave to appeal is granted to the Supreme Court of Appeal.

2. Costs are costs in the appeal.

Judge of the High Court

Delivered: This judgment is handed down electronically by uploading it to the electronic file of this matter on CaseLines. As a courtesy gesture, it will be sent to the parties/their legal representatives by email.

For the applicant: Adv. J.C. Uys SC Instructed by:

BRAND POTGIETER

INCORPORATED For the respondent: Adv. B. Leech SC With: Adv. S.L. Mohapi Instructed by:

WERKMANS ATTORNEYS Date of the hearing: 13 September 2023 Date of judgment: 18 September 2023

[1] S 17.

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Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Superior Courts Act 10 of 2013

Legislation

Legislation referenced in the available case record.

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