South African Health Products Regulatory Authority and Another v African Christian Democratic Party

The African Christian Democratic Party (ACDP) applied to the Gauteng Division of the High Court for an order directing the South African Health Products Regulatory Authority (SAHPRA) to remove restrictions on the use of Ivermectin for the treatment of Covid-19 in humans. The ACDP and applicants in three similar matters settled with SAHPRA and the Minister of Health. They agreed to the terms of an order. However, the high court (Sardiwalla J) made two additional orders (paragraphs 1 and 2) that were not sought by any party and not agreed to - a supervisory order requiring SAHPRA to report to the court every three months and allowing parties to approach the court for relief regarding Ivermectin issues. SAHPRA and the Minister objected to these orders and filed heads of argument. Despite agreeing to hear the parties on 6 April 2021, Sardiwalla J made the order including the supervisory order without hearing the parties. When reasons were requested, the reasons provided made no mention of the supervisory order or why it was granted. SAHPRA and the Minister applied for rescission or leave to appeal, and leave to appeal was granted.

• Whether a court can make orders that were not applied for by any party and to which parties object without hearing those parties
• Whether supervisory orders can be granted without evidence justifying their necessity
• Whether orders made contrary to fundamental principles of procedural fairness are invalid
• The limits of judicial power and the requirements of open justice and the rule of law

1. The appeal is upheld. 2. Paragraphs 1 and 2 of the high court's order are set aside. No costs order was made as the appellants undertook not to seek costs against the ACDP.

A court order is invalid and must be set aside where: (1) it is made without affording affected parties a hearing on issues they oppose, in breach of the constitutional right to a fair hearing under section 34 of the Constitution; (2) the order was not applied for by any party and relates to issues not raised in the pleadings or affidavits, contrary to the fundamental principle in South Africa's adversarial system that it is for parties to define their dispute and for courts to adjudicate only those issues; and (3) a supervisory order is granted without any evidence to justify its necessity. Judicial power has limits - the exercise of judicial authority otherwise than according to law is invalid. Courts must decide matters between parties in open court, affording them a fair hearing. The independence of the judiciary depends on the judiciary's respect for the limits of its powers, and its function is to adjudicate the issues between the parties to the litigation and not extraneous issues.

The court noted that had the judge allowed the parties to argue the matter, he would have been informed of the separation of powers problems that the grant of the supervisory order would create, and the possible consequence of it purporting to bypass the obligation imposed by section 7(2) of the Promotion of Administrative Justice Act 3 of 2000 to exhaust the internal remedy created by section 24A of the Medicines and Related Substances Act 101 of 1965. The court also observed that the fact that SAHPRA and the Minister had settled the matter and agreed to an order suggests that there was probably no necessity for a supervisory order. The court further commented that it was "telling" that when the judge was specifically asked to furnish reasons regarding the only disputed issue (the supervisory order), the reasons provided made no mention of it whatsoever.

This case reinforces fundamental principles of South African civil procedure and constitutional law regarding the limits of judicial power. It establishes important principles about: (1) the constitutional requirement for a fair hearing before orders are made against parties; (2) the adversarial nature of South African civil litigation and the impermissibility of courts deciding issues not raised by the parties; (3) the requirement for evidence to justify supervisory orders; and (4) the foundational importance of open justice and procedural fairness as elements of the rule of law. The judgment emphasizes that judicial authority must be exercised within legal constraints and that courts must respect the limits of their powers. It serves as a clear statement that even well-intentioned judicial intervention must comply with basic procedural requirements and cannot override parties' rights to be heard on issues that may adversely affect them.