Pharmaceutical Society of South Africa and Others v Minister of Health and Another; New Clicks South Africa (Pty) Limited v Tshabalala-Msimang NO and Another

The Minister of Health promulgated regulations establishing a Transparent Pricing System for Medicines under s 22G of the Medicines and Related Substances Act 101 of 1965. The regulations fixed a ‘single exit price’ for manufacturers, prohibited discounts, and prescribed capped dispensing fees for pharmacists. The Pharmaceutical Society of South Africa and New Clicks SA (Pty) Ltd, representing pharmacy interests, brought urgent review applications in the Cape High Court challenging the validity and legality of the regulations. The High Court dismissed the reviews. The applicants immediately sought leave to appeal, but the High Court delayed delivering its ruling on leave. Before that ruling was issued, the applicants approached the Supreme Court of Appeal (SCA) for leave to appeal, raising procedural and jurisdictional objections from the respondents, including urgency, separation of issues, and whether the SCA had jurisdiction in the absence of a prior ruling by the High Court.

The Supreme Court of Appeal held that it had jurisdiction to entertain the applications, that the matters were urgent, and that there was no basis for separating issues. The procedural objections raised by the respondents were dismissed, and the court proceeded to consider whether leave to appeal should be granted.

The judgment is significant for clarifying the Supreme Court of Appeal’s jurisdiction and procedural powers where a lower court delays unreasonably in ruling on leave to appeal. It affirms litigants’ rights to effective appellate access and underscores judicial accountability for timely decision-making. The case also forms part of the broader litigation concerning pharmaceutical pricing and access to health care in South Africa.