Court name
High Court Main Division
Case number
APPEAL 217 of 2012
Title

Medical Associaton of Namibia and Another v Minister of Health And Social Services and Others (APPEAL 217 of 2012) [2013] NAHCMD 362 (27 November 2013);

Media neutral citation
[2013] NAHCMD 362
Coram
Ueitele J










REPUBLIC
OF NAMIBIA




HIGH
COURT OF NAMIBIA MAIN DIVISION, WINDHOEK





JUDGMENT





Case
no: A 217/2012





DATE:
27 NOVEMBER 2013








In
the matter between:





THE
MEDICAL ASSOCIATION OF
NAMIBIA.............................................................1ST
APPLICANT





DR.
R. SIEBERHAGEN
….........................................................................................2ND...APPLICANT





And





THE
MINISTER OF HEALTH AND SOCIAL
SERVICES...................................1ST
RESPONDENT





MEDICINES
REGULATORY
COUNCIL...............................................................2ND
RESPONDENT





THE
REGISTRAR OF
MEDICINES.......................................................................3RD
RESPONDENT





THE
ATTORNEY
GENERAL...................................................................................4TH
RESPONDENT





Neutral
citation: The Medical Association of Namibia v The Minister of Health
and Social Services (A 217/2012) [2013] NAHCMD 362 (27 November 2013)





CORAM: UEITELE,
J





Heard: 06
December 2012





Delivered:
27 November 2013





Flynote:





Constitutional
law
— Right to practise business or profession in terms of
art 21(1)(j) — Appellants challenging licensing scheme
introduced by s.31(3) of the Medicines and Related Substances Control
Act, 13 of 2003 — Regulation of practice of profession not
necessarily infringement of art 21(1)(j) — Regulation should be
rational — However, such regulation should not be so invasive
as to constitute barrier to practising profession.





Constitutional
law
-Right to have civil obligations determined by an independent
tribunal as contemplated by Article 12(1)(a) of the Namibian
Constitution –Factors to be considered whether a body is
tribunal as envisaged by Article 12(1)(a) - Firstly, the tribunal
must have the ability to make final, legally enforceable decisions.
Secondly, it must be independent from any departmental branch of
government. Thirdly, the nature of the hearings conducted in
tribunals must be both public and of a judicial nature, while not
necessarily subject to the stringent formalities of a court of law.
Fourthly, tribunal members must be in possession of specific
expertise, in the field of operation of the tribunal as well as
judicial expertise. Fifth, there must be a duty on tribunals to give
clear reasons for their decisions, and lastly that there must be a
right of appeal to a higher court on disputes regarding points of
law.





Constitutional
law Fundamental rights
- Dignity - What constitutes -The minimum
content of the right to dignity has three elements: The first is that
every human being possesses an intrinsic worth merely by being human.
The second is that the intrinsic worth should be recognized and
respected by others, and some forms of treatment by others are
inconsistent or required by respect for this intrinsic worth. The
third element is the claim that recognizing the intrinsic worth of
the individual requires that the state should be seen to exist for
the sake of the individual human being.





Summary:





The
applicants challenged the validity of the provisions of sections
29(7) (b), 29(9)(b), 29(13)(b) and 29(19)(b) and 31(3) of the
Medicines and Related Substances Control Act, 13 of 2003, on the
basis that:





(a)
those provision (especially section 31(3)) of the Medicines Act,
bestows on the Council the discretion to prohibit the applicants to
continue with their “manifested right to practice their
profession”. The exercise of the discretion is not law as
envisaged in articles 21(2) and 22 of the Constitution.





(b)
the Council established by section 2 of the Medicine Act is an
administrative body and not a court or tribunal as envisaged in
Article 12 of the Constitution and is as such a contravention of the
article 12 of the Constitution.





(c)
the impugned provisions and licensing scheme abolishes and abridges
the applicants property rights.





(d)
the impugned provisions and the licensing scheme violate the
applicants’ dignity.





(e)
the impugned provision and the licensing scheme transgress the
Government’s International Treaty obligations.’





The
applicants’ content that their right to dignity is infringed.
The applicants allege that for an administrative body to have a
discretion to determine civil rights and obligations, on arbitrary,
irrelevant and irrational criteria is a violation of the applicant’s
dignity. They further content that the licensing scheme introduced by
the Medicines Act has the effect that what was previously an ordinary
day to day activity, and which was accepted as natural, is now a
criminal offence and carries with it the seeds of humiliation and is
thus an affront to the applicants’ dignity. The applicants
furthermore allege that their dignity does not stand alone, it is
allegedly intertwined with the applicants’ duty to keep their
patient’s illnesses privileged. To compel a medical
practitioner to reveal to a pharmacist what illness the patient
suffers from unlawfully compels the patient (and doctor) to disclose
his or her illness to third parties (so the applicants contend).





The
minister argues that, the background that gave rise to the Ministry
of Health Social Services initiating the enactment of the Medicines
Act is that, the irrational use of drugs has increased the costs of
medicine to the public and undermines the safety, quality and
efficacy of the medicines that are dispensed to patients. He says
that bad dispensing practices compromise and place in jeopardy the
health of patients and that of the public at large and constitute a
denial of access to health care to the public.





That
factors to be considered whether a body is tribunal as envisaged by
Article 12(1)(a) of the Namibian Constitution : Firstly, the tribunal
must have the ability to make final, legally enforceable decisions.
Secondly, it must be independent from any departmental branch of
government. Thirdly, the nature of the hearings conducted in
tribunals must be both public and of a judicial nature, while not
necessarily subject to the stringent formalities of a court of law.
Fourthly, tribunal members must be in possession of specific
expertise, in the field of operation of the tribunal as well as
judicial expertise. Fifth, there must be a duty on tribunals to give
clear reasons for their decisions, and lastly that there must be a
right of appeal to a higher court on disputes regarding points of
law.





That
in any complaint that the right to dignity has been infringed, the
court must consider whether any of the three basic elements of the
right to dignity has been diminished. In this regard in the present
matter, the questions that arise for determination are whether the
challenged provisions-





(a)
disregard the intrinsic worth of the medical practitioners?





(b)
disrespect the intrinsic worth of the medical practitioners?





(c)
are inconsistent with respect for the intrinsic worth of the medical
practitioners?





Held,
that the applicants have not in this matter demonstrated how section
31(3) of the Medicines Act disregards the intrinsic worth of the
medical practitioners, or disrespect the intrinsic worth of the
medical practitioners or is inconsistent with respect for the
intrinsic worth of the medical practitioners or that the State does
not realize that it exist for the sake of the individual. The State
exists for the sake of individual, but it is also correct to state
that, the State must act in the interest of the greater majority
reconciling and balancing the conflicting interest of the people in a
reasonable just fair manner.





Held,
that the policy and object of section 31 (3) of the Medicines Act is
to regulate the selling of scheduled medicines. Held further that,
there is nothing unreasonable, unjust and unfair in the challenged
provisions.





Held,
that the licensing scheme does not infringe the dignity of the
applicants. The licensing scheme introduced by section 31(3) of the
Medicines Act does not infringe the right to the dignity of medical
practitioners.





Held,
that the licensing scheme introduced by section 31 (3) regulates the
practise of the medical profession, but it regulates the practice in
a manner that, viewed objectively, does not affect the choice of that
profession by any person, in any negative manner. What section 31 (3)
does, is, merely to require that, if the practice of medicine is to
involve the selling of scheduled medicine, this should be done by a
medical practitioner in respect of whom a licence to sell medicine
has been issued.





Held,
in the circumstances, the applicants have not established that the
licensing scheme constitutes an infringement of Art 21(1) (j).





Held,
that section 31 (3) of the Medicines Act does not interfere with
medical practitioners’ right to own, dispose of or destroy any
medicine. Held further that, what the section does is simply to
regulate who may and who may not sell, dispense or compound
Schedule1, Schedule 2, Schedule 3 or Schedule 4 medicines.





Held,
that the mere fact that the Council is not an administrative body
does not absolve it from acting fairly and reasonably and comply with
the requirements of the rules of natural justice and the requirements
of any relevant legislation There is no doubt that the Council is a
statutory tribunal which derives its authority and power from
statute. Therefore there is no doubt that the Council is a tribunal
as envisaged by article 12(1) (a) of the Namibian Constitution.





Held,
that the application is dismissed and held further that applicants
are ordered to pay respondents' costs, which will include the costs
of one instructing and one instructed counsel.








ORDER





1.
The application is dismissed.





2.
Applicants are ordered to pay respondents' costs, which will include
the costs of one instructing and one instructed counsel.








JUDGMENT








UEITELE,
J





A
INTRODUCTION





[1]
The first applicant is the Medical Association of Namibia Ltd, a
company with Limited liability, incorporated in terms of s 21 of the
Companies Act, 1973 (Act No 61 of 1973). The first applicant has as
its members medical practitioners who practice the profession of
medicine either on their own account or in partnership.





[2]
The second applicant is a medical practitioner and psychiatrist who
practices in Windhoek, he is also a member and the chairperson of the
first applicant. I will in this judgment refer to the first and
second applicants simply as the applicants.





[3]
The first respondent is the Minister of Health and Social Services (I
will in this judgment refer to the first respondent as the
“Minister.”) The second respondent is the Medicine
Regulatory Council, which was established by the Medicines and
Related Substances Control Act, 19651
and its existence was continued by section 2 of the Medicine and
Related Substance Control Act 2003 2.
The third respondent is the Registrar of Medicine and the fourth
respondent is the Attorney General of the Republic of Namibia.





[4]
The applicants approached this court on an urgent basis, initially
seeking an order by Notice of Motion staying and suspending section
31 of the Medicines and Related Substance Control Act, 2003. The
Notice of Motion was however, amended and the applicants are now
seeking the following orders:





1.
That the applicant’s non-compliance with the Rules of Court is
condoned and this matter is heard on an urgent basis as envisaged in
Rule 6(12);





2.1
The provisions of sections 29(7)(b), 29(9)(b), 29(13)(b) and
29(19)(b) of the Medicines and Related Substance Control Act, 2003 be
declared unconstitutional, of no force and effect and be set aside.





2.2
That the provisions of section 31(3) of the Act be declared
unconstitutional, of no force and effect and be set aside,
alternatively to prayers 2.1 and 2.2.





3.1
The provisions of the Medicines and Related Substances Control Act,
13 of 2003 referred to in sub-paragraphs 3.1.1 and/or 3.1.2 below are
stayed and suspended, pending the finalization of an action (or any
other process as the Court may direct), in terms of which the
applicants will seek to declare the impugned provisions referred to
in paragraph 2.1 and 2.2 supra of no force and effect. The impugned
provisions to suspend are:





3.1.1
The words “who holds a licence contemplate in section 31(3),
subject to the conditions in that licence” wherever these words
appear in section 29(7)(b), 29(9)(b), 29(13)(b) and 29(19)(b) of the
Medicines and Related Substances Control Act, No 13 of 2003 –
“the Act”.





3.1.2
The whole of section 31 (3)’.





B
THE BACKGROUND TO THE APPLICANTS’ CLAIM





[5]
Prior to 1965, the selling and dispensing of medicine was the sole
domain of pharmacists3
. During 1965, the Parliament of South Africa enacted the Medicines
and Related Substances Control Act. Section 22A of that Act,
conferred the right to medical practitioners to sell and dispense
certain categories of medicines. Section 39 of the Medicines and
Related Substances Act, 1965 made that Act applicable to the then
territory of South West Africa. Article 140(1) of the Namibian
Constitution provides as follows:





140(1) Subject
to the provisions of this Constitution, all laws which were in force
immediately before the date of Independence shall remain in force
until repealed or amended by Act of Parliament or until they are
declared unconstitutional by a competent Court.’





This
means that the right conferred on medical practitioners to sell
certain categories of medicines would continue until Parliament
decides otherwise (but subject to the provisions of the
Constitution).





[6]
It is common cause that at the independence of Namibia in 1990, the
Government of the Republic of Namibia created different Ministries to
take care of the different challenges that the country was and is
still facing. One of the Ministries so created is the Ministry of
Health and Social Services.





[7]
The respondents say that what prompted the Ministry of Health and
Social Services to embark on a legislative reform process were
problems which were not unique to Namibia. The problems identified by
the respondents are: the high cost of medicine (the respondents
opine that drug prices in the private sector are high and the
percentage mark-up system gives incentives to sell expensive
medicines), wide spread and irrational use of drugs by prescribers,
dispensers, patients and a lack of unbiased information on drugs for
health workers and consumers.





[8]
The Ministry of Health and Social Services realised that the laws
regulating the dealing in drugs needed revision so that it suits the
changed conditions in an independent Namibia 4
and also to deal with problems such as the high cost of medicine,
wide spread and irrational use of drugs by prescribers, dispensers,
patients and lack of unbiased information on drugs for health workers
and consumers 5.





[9]
In pursuit of that realization and to deal with the problems so
identified by the Ministry (and referred to in paragraph 7 above),
the Permanent Secretary of the Ministry of Health and Social Services
established a Drug Policy Committee (which consisted of health
professionals from both the public and private sectors) and tasked
that committee to draft a National Drug Policy for Namibia. 6
During April and May 1997 the first draft of the National Drug Policy
was sent out to ‘stakeholders’ for comments. During
December 1997, a national seminar was convened by the Ministry of
Health and Social Services to consider the first draft of the
National Drug Policy for Namibia and the comments received from the
‘stakeholders’. The seminar resulted in the final
National Drug Policy of Namibia which was published in August 1998. 7





[10]
The National Drug Policy for Namibia consists of sixteen (16)
sections. Sections 2 and 3 set out the main policy goals and
objectives and outline’s the policy’s key principles. The
aim of the policy is set out in the following terms:





The
aim of the National Drug Policy is to guide and develop
pharmaceutical services to meet the requirements of the Namibian
people in the prevention, diagnosis, and treatment of prevailing
diseases, using efficacious, high quality, safe and cost effective
pharmaceutical products. The National Drug Policy will also serve as
the guiding document for legislative reforms, human resources
planning and development and management improvement.’ 8





The
guiding principles are amongst others ‘to promote the rational
use of drugs through sound prescribing, good dispensing practises and
appropriate usage.’ 9





[11]
Section 4 of the Policy addresses ‘Legislation, Regulation and
Quality Assurance.’ The aim of this section is set out as
follows:





To
ensure that medicines reaching the people of Namibia are safe,
efficacious, of good quality and available at affordable prices.’
10





In
subsection 4.4 the Policy envisages that:





Medical
practitioners and nurses in private practice with proven competency
in dispensing medicines may be issued with a licence by the licensing
authority to dispense medicine in the absence of adequate
pharmaceutical services.’ 11





[12]
In 2003, the National Assembly passed the Medicines and Related
Substances Control Act, 2003 (I will, in this judgment, refer to this
Act as the Medicines Act). The President of the Republic of Namibia
assented to that Act, on 13 August 2003, but the Act was only to come
into operation on a date to be determined by the Minister responsible
for health by notice in the Gazette. It is now common cause that the
Minister determined 28 July 2008 as the date on which the Act would
come into operation.





[13]
The Act introduced a licensing scheme whereby a medical practitioner,
dentist or veterinarian who wishes to sell schedule 1, 2, 3 or 4
medicine to his or her patients had to apply, in the prescribed form
to the second respondent for a licence authorising that medical
practitioner, dentist or veterinarian to sell Schedule 1, Schedule 2,
Schedule 3 or Schedule 4 medicines to his or her patients (I will, in
this judgment, refer to the second respondent as the Council). The
form and conditions which must be met for one to qualify for a
licence are set out in the Regulations promulgated by the Minister
under section 44 of the Medicines Act.





[14]
Section 46(3) 12
of the Medicines Act made provisions for transitional matters, which
amongst others gives a medical practitioner, dentist, veterinarian or
pharmacist, who, at the time when the Act came into operation, was
acquiring, keeping, using, supplying, selling or prescribing
scheduled medicine to continue to acquire, keep, use, supply, sell or
prescribe those medicine, without a licence for a period of three
months beginning with the date of commencement of the Act. Those who
wished to continue to acquire, keep, use, supply, sell or prescribe
those medicine after the three months grace period were to apply to
do so before the expiry and may continue to acquire, keep, use,
supply, sell or prescribe those medicine until the application for a
licence is granted or refused, or if refused until the decision of an
appeal (if noted) is communicated to the medical practitioner,
dentist, veterinarian or pharmacist concerned.





[15]
The applicants were aggrieved by certain provisions of the
Regulations promulgated under section 44 of the Act, and on 12 June
2009 (i.e. approximately eight months after the Act came into
operation), and as a result of the grievance, launched an application
for review in terms of Rule 53 of the High Court Rules, seeking,
amongst others, the following relief:





1.
Calling upon the respondents in terms of Rule 53 to show cause why –





1.1
the publication of the purported Regulations relating to Medicines
and Related Substances, published by the first respondent in
Government Gazette No. 187 of 2008, purportedly in terms of section
44 of the Medicines and Related Substances Control Act No. 13 of
2003, should not be declared ultra vires section 44(1) and/or section
44(2) of the Medicines and Related Substances Control Act (Act No. 13
of 2003) and consequently null and void.





1.2.
The Regulations relating to Medicines and Related Substances, should
not be declared ultra vires the provisions of Article 18 of the
Constitution of the Republic of Namibia, as well as section 44 of the
Medicines and related Substances Control Act No 13 of 2003 (Act No.
13 of 2003) in that the Appeal Committee, envisaged in section 34(1)
of the said Act has never been lawfully established, and be set
aside;





1.3
Regulations 34(3)(a), 34(3)(c), 34(3)(d) and 34(3)(e) of the
Regulations relating to Medicines and Related Substances, should not
be declared ultra vires the provisions of section 44(1)(f) of the
Medicines and Related Substances Control Act No 13 of 2003 (Act No.
13 of 2003) and be set aside.





2.
Declaring the decisions taken by the third respondent in respect of
the applicant-members’ applications in terms of section 31(3)
read with section 34 of the Medicines and Related Substances Control
Act (Act No. 13 of 2003) ultra vires and null and void.





3.
Declaring that the time period as envisaged in section 46 of the
Medicines and Related Substances Control Act No. 13 of 2003, shall
commence to run-





3.1
from the date of this Court order;





3.2
alternatively, from the date on which the Namibia Medicines
Regulatory Council and the Appeal Committee, envisaged in section
34(1) of the Medicines and Related Substances Control Act (Act No. 13
of 2003) have been lawfully established.’





[16]
This court set aside the entire regulations, promulgated by the
Minister. The Minister, appealed against the decision of this court.
In a judgment delivered by the Supreme Court that court partly
allowed the appeal. The Supreme Court found that:





a)
The provisions of Regulation 34(a), (c), (d) and (e) made and
published in terms of the Medicines Act, 2003 by Government Notice No
178 in Government Gazette 4088, were ultra vires the powers of the
Minister in terms of sec. 44(2) of the Medicines and Related
Substances Control Act (Act No. 13 of 2003) and were set aside.





b)
All the third respondents’ decisions on applications for
licences made by medical practitioners were unlawful and ultra vires
and not in compliance with sec. 31(3) as read with sec. 34 of the
Medicines Act 2003 and are set aside.’





[17]
Between 12 June 2012 and 18 August 2012, the applicants attempted to
agree with the Council to allow medical practitioners who did not
have licences as contemplated in section 31(3) of the Medicines Act,
to continue to sell medicines to their patients. The attempt by the
applicants bore no fruits and on 28 August 2012 the first applicant
received a legal opinion to challenge the constitutionality of
certain provisions of the Medicines Act. On 3 October 2012, this
application was launched.





C
THE BASIS ON WHICH THE PROVISIONS OF THE MEDICINES ACT ARE IMPUGNED





[18]
The applicants are challenging the validity of the provisions of
sections 29(7)(b), 29(9)(b), 29(13)(b) and 29(19)(b) and 31(3) of the
Act, on the basis that: ( I repeat the averments verbatim):





(a)
those provision (especially section 31(3)) of the Medicines Act,
bestows on the Council the discretion to prohibit the applicants to
continue with their “manifested right to practise their
profession”. The exercise of the discretion is not law as
envisaged in articles 21(2) and 22 of the Constitution.





(b)
the Council established by section 2 of the Medicine Act is an
administrative body and not a court or tribunal as envisaged in
Article 12 of the Constitution and is as such a contravention of the
article 12 of the Constitution.





(c)
the impugned provisions and licensing scheme abolishes and abridges
the applicants property rights.





(d)
the impugned provisions and the licensing scheme violate the
applicants’ dignity.





(e)
the impugned provision and the licensing scheme transgress the
Government’s International Treaty obligations.’





[19]
I pause here to make an observation as regards the orders sought by
the applicants. The inclusion of an alternative prayer is
superfluous. I say so because if I were to find that the disputed
provisions are unconstitutional, that will be the end of the matter,
and if I were to find that the disputed provisions are
constitutional, I do not see how I can stay and suspend the operation
of those provisions. Having made this observation, I now proceed to
consider the various grounds on which the provisions of the Medicines
Act are challenged.





Do
the challenged provisions of the Medicines Act violate the
applicants’ right to dignity?





[20]
I proceed to some of the principles articulated by the courts and
legal writers when dealing with the right to dignity. In the case of
Afshani and Another v Vaatz13
, Maritz, J said:





Article
8(1) demands respect for human dignity and entrench that right in
peremptory language: 'The dignity of all persons shall be
inviolable.' One only has to refer to the articulation of this value
in the first paragraph of the Preamble to the Constitution to
understand why human dignity is a core value, not only entrenched as
a fundamental right and freedom in ch 3, but also permeating all
other values reflected therein.’





[21]
In Exparte Attorney General, Namibia In Re Corporal Punishment14
the late Mohamed, AJA (as he then was) said:





The
Namibian Constitution seeks to articulate the aspirations and values
of the new Namibian nation following upon independence. It expresses
the commitment of the Namibian people to the creation of a democratic
society based on respect for human dignity, protection of liberty and
the rule of law. Practises and values which are inconsistent with or
which might subvert this commitment are vigorously rejected.’
{My Emphasis}








[22]
While our courts have emphasized the concept of human dignity, the
South African Constitutional Court has gone further and outlined the
content of the right to dignity. It 15
said the following as regards the dignity of persons:





The
value of dignity in our Constitutional framework cannot therefore be
doubted. The Constitution asserts dignity to contradict our past in
which human dignity for black South Africans was routinely and
cruelly denied. It asserts it too to inform the future, to invest in
our democracy respect for the intrinsic worth of all human beings.’
{My Emphasis}





[23]
In Khumalo and Others v Holomisa 16
the South African Constitutional Court said the following:





In
the context of the actio injuriarum, our common law has separated the
causes of action for claims for injuries to reputation (fama) and
dignitas. Dignitas concerns the individual's own sense of self-worth,
but included in the concept are a variety of personal rights
including, for example, privacy. In our new constitutional order, no
sharp line can be drawn between these injuries to personality rights.
The value of human dignity in our Constitution is not only concerned
with an individual's sense of self-worth, but constitutes an
affirmation of the worth of human beings in our society. It includes
the intrinsic worth of human beings shared by all people as well as
the individual reputation of each person built upon his or her own
individual achievements. The value of human dignity in our
Constitution therefore values both the personal sense of self-worth
as well as the public's estimation of the worth or value of an
individual.’





[24]
Neethling et al 17
argue that dignity may be defined as ‘the recognition of the
spiritual–moral value of the human being as the crown of
creation’. From this definition and the above exposition by the
constitutional court in Khumalo and Others v Holomisa18
it is, thus possible to extrapolate the content of the right to
dignity. Christopher McCudden 19
said:





‘…we
perhaps see the outlines of a basic minimum content of “human
dignity”, that all those who use the term historically and all
those who include it in human rights texts appear to agree as its
core, whether they approve of it or disapprove of it. This basis
minimum seems to have at least three elements. The first is that
every human being possesses an intrinsic worth merely by being human.
The second is that the intrinsic worth should be recognized and
respected by others, and some forms of treatment by others are
inconsistent or required by respect for this intrinsic worth. The
third element is the claim that recognizing the intrinsic worth of
the individual requires that the state should be seen to exist for
the sake of the individual human being. {My Emphasis}





[25]
From the nature and content of the right to human dignity outlined in
the preceding paragraphs, I conclude that in any complaint that the
right to dignity has been infringed, the court must consider whether
any of the three basic elements of the right to dignity has been
diminished. In this regard, in the present matter, the questions that
arise for determination are whether the challenged provisions-





(a)
disregard the intrinsic worth of the medical practitioners?





(b)
disrespect the intrinsic worth of the medical practitioners?





(c)
are inconsistent with respect for the intrinsic worth of the medical
practitioners?





[26]
The applicants’ contention that their right to dignity is
infringed is set out in paragraphs 57 to 61 of the founding
affidavit. In those paragraphs, the applicants allege that for an
administrative body to have a discretion to determine civil rights
and obligations, on arbitrary, irrelevant and irrational criteria, is
a violation of the applicant’s dignity. They further content
that the licensing scheme introduced by the Medicines Act has the
effect that what was previously an ordinary day to day activity, and
which was accepted as natural, is now a criminal offence and carries
with it the seeds of humiliation and is thus an affront to the
applicants’ dignity. The applicants furthermore allege that
their dignity does not stand alone, it is allegedly intertwined with
the applicants’ duty to keep their patient’s illnesses
privileged. To compel a medical practitioner to reveal to a
pharmacist what illness the patient suffers from unlawfully compels
the patient (and doctor) to disclose his or her illness to third
parties (so the applicants contend).





[27]
Mr Heathcote, who appeared on behalf of the applicants, in oral
arguments submitted that medical practitioners have for over 40 years
been regarded as having the competence to sell medicines to their
patients, but with the introduction of section 31(3) that
acknowledgement disappears. He argued that this was so because the
Council when considering whether to grant or refuse a section 31(3)
licence, has to be satisfied that the doctor has the required
competence to dispense. He thus submitted that to doubt a person’s
competence without good reason or evidence is to diminish the
public’s estimation of that person or the worth of value of
that person in the public eye and amounts to an attack on the dignity
of that person.





[28]
To drive his point home, Mr Heathcote gave a hypothetical case of two
neighbouring patients who have been receiving medicines from their
doctors for the past five years. On a good day, the one patient hears
that the doctor is prohibited from giving medicines but the
neighbour’s doctor is not so prohibited. Mr Heathcote then
submitted that “for the man in the street, who does not know
about the new licensing scheme, the question will immediately arise
why his doctor is prohibited and his neighbour’s doctor not.
Logically, “he might doubt his own doctor’s competence
and even consider changing doctors”. He further argues that
this hypothetical example demonstrates how a doctor’s dignity
stands to be negatively affected by the licensing scheme.





[29]
What Mr Heathcote does not tell the court is whether his ‘man
in the street’ is a reasonable person of ordinary intelligence.
It is now well established that the test to be applied when
considering whether a person’s right has been infringed or not
is an objective test.20
I do not think that a reasonable fair minded person of average
intelligence would doubt his doctor’s competence simply,
because that doctor does not have a license to sell scheduled
medicine as is required by the relevant laws.





[30]
I have earlier observed that section 22A of the repealed Medicines
and Related Substances Control Act, 1965 conferred the right to
medical practitioners to sell and dispense certain categories of
medicines, that section in material terms provides as follows:





22A
CONTROL OF MEDICINES AND SCHEDULED SUBSTANCES





(1)
Subject to the provisions of this section, no person shall sell any
medicine or Scheduled substance unless he is the holder of a licence
issued in terms of an ordinance of a provincial council or the
territory on the prescribed conditions, or he is employed by the
holder of any such licence: Provided that nothing in this subsection
contained shall be construed as requiring a medical practitioner,
dentist, pharmacist or veterinarian to hold any such licence to sell
any medicine or Scheduled substance in the course of lawfully
carrying on his professional activities.





(2)





(3)
Any Schedule 1 substance, not being any such substance prescribed for
the purposes of this subsection, shall not be sold by the holder of a
licence referred to in subsection (1): Provided that any Schedule 1
substance shall not be sold to any person apparently under the age of
sixteen years except upon a prescription issued by a medical
practitioner, dentist or veterinarian and dispensed by a pharmacist,
trainee pharmacist or unqualified assistant or by a medical
practitioner or dentist or veterinarian or on a written order which
discloses the purpose for which such substance is to be used and
bears a signature known to the seller as the signature of a person
known to such seller and who is apparently over the age of sixteen
years, and such order shall be retained by such seller for a period
of not less than six months after the relevant sale.





(4)
Any Schedule 2 substance shall not be sold-





(a)
by any person other than a pharmacist or a trainee pharmacist or
unqualified assistant acting under the personal supervision of a
pharmacist; and





(b)
to any person apparently under the age of sixteen years except upon a
prescription issued by a medical practitioner, dentist or
veterinarian and dispensed by a pharmacist, trainee pharmacist or
unqualified assistant or by a medical practitioner or dentist or
veterinarian or on a written order which discloses the purpose for
which such substance is to be used and bears a signature known to the
seller as the signature of a person known to such seller and who is
apparently over the age of sixteen years; and





(c)
unless the seller enters in a prescription book required to be kept
in the prescribed manner, all the prescribed particulars of such
sale.





(5)
Any Schedule 3 substance shall not be sold-





(a)
by any person other than a pharmacist or a trainee pharmacist or
unqualified assistant acting under the personal supervision of a
pharmacist, upon a written prescription issued by a medical
practitioner, dentist or veterinarian or on the verbal instructions
of a medical practitioner, dentist or veterinarian who is known to
such pharmacist; or





(b)
to any person other than a medical practitioner, dentist,
veterinarian or pharmacist; and





(c)
unless the seller enters in the prescribed manner in a prescription
book required to be kept in the prescribed manner, all the prescribed
particulars of such sale; and





(d)
in the case of a sale as provided in paragraph (a), in a quantity
greater than that stated in the prescription or instructions referred
to in that paragraph: Provided that such sale may, upon such
prescription or instructions, be repeated for use in terms of such
prescription or instructions during a period not exceeding six months
as from the date of the first such sale.





(6)
A Schedule 4 substance shall not be sold-





(a)
by any person other than a pharmacist or a trainee pharmacist or
unqualified assistant acting under the personal supervision of a
pharmacist, upon a written prescription of a medical practitioner,
dentist or veterinarian or on the verbal instructions of a medical
practitioner, dentist or veterinarian who is known to such
pharmacist: Provided that a medical practitioner, dentist or
veterinarian who has given such verbal instructions shall within
seven days after giving such instructions furnish to such pharmacist
a written prescription confirming such instructions; or





(b)
to any person other than a medical practitioner, dentist,
veterinarian or pharmacist; and





(c)
unless the seller enters in the prescribed manner in a prescription
book required to be kept in the prescribed manner, all the prescribed
particulars of such sale; and





(d)
in the case of a sale on a written prescription as provided in
paragraph (a), in a quantity greater than that stated in the
prescription: Provided that such sale may, if the person who issued
the prescription indicated thereon the number of times and the
intervals at which it may be dispensed, be repeated accordingly:
Provided further that every seller shall endorse on the prescription
the date of sale and the quantity of the said substance sold, and
that the last seller shall retain the prescription for a period of
not less than three years as from the date of the last sale.





[31]
In my opinion section 22A, is not concerned with the competency or
incompetency of medical practitioners to dispense or sell medicines.
I am further of the view that, that section does not confer an
eternal right on medical practitioners to sell scheduled medicines.
That section simply regulates who may and who may not sell scheduled
medicines.





[32]
Section 31(3) of the Medicines Act, which regulates the sale and
dispensing of scheduled medicines, provides as follows:





31
Licences and permits





(1)
The Council may issue a licence on application in the prescribed form
by a person, who lawfully performs a health service, other than a
person referred to in subsection (2) or (3), authorizing that person
to-





(a)
acquire;





(b)
possess; and





(c)
prescribe, use in respect of, or sell to, his or her patients,





specified
Schedule 1, Schedule 2 or Schedule 3 substances, subject to such
conditions as the Council may determine, if the Council is satisfied
that granting such a licence is in the public need and interest and
that the person possesses the required competence to possess,
prescribe, use, or supply those scheduled substances.





(2)





(3)
The Council may issue a licence on application in the prescribed form
by a medical practitioner, a dentist or a veterinarian, authorising
that medical practitioner, dentist or veterinarian to sell Schedule
1, Schedule 2, Schedule 3 or Schedule 4 substances to his or her
patients, subject to such conditions as the Council may determine, if
the Council is satisfied that granting such a licence is in the
public need and interest and that the medical practitioner, the
dentist or the veterinarian has the required competence to dispense
those scheduled substances’.





[33]
The applicants contended that the requirement to apply for a licence
whenever a medical practitioner, a dentist or a veterinarian intends
to sell Schedule 1, Schedule 2, Schedule 3 or Schedule 4 substances
to his or her patients interferes with the right to dignity. I have
indicated above that in order to establish that a given practise or
law violates Article 8(1) of the Constitution, it must be proven that
the practise or law disregards the intrinsic worth of the
complainant, or disrespect the intrinsic worth of the complainant or
is inconsistent with respect for the intrinsic worth of the
complainant and that the State does not realize that it exist for the
sake of the individual.





[34]
The applicants have not in this matter demonstrated how section 31(3)
of the Medicines Act disregards the intrinsic worth of the medical
practitioners, or disrespect the intrinsic worth of the medical
practitioners or is inconsistent with respect for the intrinsic worth
of the medical practitioners or that, the State does not realize that
it exist for the sake of the individual. The State exists for the
sake of individual but it is also correct to state that the State
must act in the interest of the greater majority reconciling and
balancing the conflicting interest of the people in a reasonable just
fair manner. The following statement by Strydom, CJ in Muller and
Another v President of the Republic of Namibia21
is thus apposite:





'.
. . in order to govern a modern country efficiently and to harmonise
the interests of all its people for the common good, it is essential
to regulate the affairs of its inhabitants extensively.'





In
my opinion the policy and object of section 31 (3) of the Medicines
Act is to regulate the selling of scheduled medicines. Regulating the
professional activities of medical practitioners, I must say, is for
the common good of the Namibian people. There is nothing
unreasonable, unjust and unfair in the challenged provisions and I
hold that the licensing scheme does not infringe the dignity of the
applicants.





[35]
Ms. Rosalia Annette Nghidinwa, who deposed to the affidavit on behalf
of the minister, says that, what prompted the licensing scheme are
bad dispensing practises by medical practitioners. These practices
include the irrational use of drugs by prescribers, dispensers,
patients and a lack of unbiased information on drugs for health
workers and consumers, the high cost of medicine and the temptation
to private medical practitioners to prescribe inappropriately so as
to increase their income. She thus stated that the purpose of section
31(3) is to promote the rational use of drugs through sound
prescribing, good dispensing practises and appropriate usage of drugs
22.





[36]
The applicants’ response to Ms. Nghidinwa’s statement is
that the respondents could not cite one example of the “wide
spread irrational use of drugs” and that they support the
rational use of drugs. In my view, the adoption of the National Drug
Policy is in itself recognition and testimony of the fact that there
are problems with the dispensing, selling and use of drugs in Namibia
therefore, I do not find any need for the respondents to cite
instances or examples of irrational use of drugs. Secondly, the
statement that the applicants support the rational use of drugs is an
admission of the need to regulate the selling, dispensing and use of
drugs.





[37]
The licensing scheme introduced by section 31(3) of the Medicines Act
does, in my view, not infringe the right to the dignity of medical
practitioners. This conclusion is buttressed by the dictum of Ngcobo,
J in Affordable Medicines Trust and Others v Minister of Health and
Others 23
, which dictum I accept, when he said-





I
cannot conceive of anything that would harm the medical profession if
those medical practitioners who wish to dispense medicines as part of
their practises are required to comply with good dispensing practises
in order to promote access to affordable medicines that are safe for
consumption by the public. If anything, this should enhance their
dignity in the eyes of the public that they serve.’





Do
the challenged provisions of the Medicines Act violate the
applicants’ right to practise their profession?





[38]
The other basis on which the provisions, particularly section 31(3),
of the Medicines Act is challenged is the allegation that that
section prohibits medical practitioners to sell Schedule 1, Schedule
2, Schedule 3 or Schedule 4 substances to their patients, without a
licence thus prohibiting the medical practitioners to practise their
trade and profession. The argument of Mr Heathcote which, I repeat
verbatim, was as follows:





Until
1965 the selling and dispensing of medicine was the sole domain of
pharmacologists. Then, in 1965, by virtue of section 22A of the
Medicines and Related Substances Control Act, 1965 (Act 101 of 1965)
the right to sell medicines was extend to medical practitioners–this
included practicing doctors. This was the position until 2008 when
Parliament passed the 2003 Act, 2003 which introduced a licensing
scheme, in terms whereof, inter alia medical practitioners were
forthwith prohibited to sell Schedule 1,2 3, and 4 substances to
their patients.’





[39]
Mr Heathcote further argued that, with a stroke of a pen, doctors are
prohibited from continuing to practise their trade and profession as
before. He argued that it now lies within the absolute discretion of
the Council to decide to what extent a doctor may continue to
practise his or her profession. Before I proceed to consider the
submission against the relevant constitutional provisions I must, at
the outset, state that the Medicines Act does not confer absolute
discretion on the Council.





[40]
Mr Heathcote’s argument is misplaced first, because the phrase
‘absolute discretion’ does not appear anywhere in the
section, secondly in our current constitutional dispensation every
administrative body, administrative officials, tribunal or body of
persons imbued with the power of adjudicating civil obligations is
subject to the constitution and the principle of legality. This
truism was stated more than one hundred years ago in the English case
of Sharp v Wakefield24
namely that:





‘…
Discretion” means when it
is said that something is to be within the discretion of the
authorities that that something is to be done according to the rules
of reason and justice, not according to private opinion: …according
to law and not humour. It is to be not arbitrary, vague and fanciful,
but legal and regular.’





[41]
My conclusion in the preceding paragraph is buttressed by Baxter25
who argues that:





In
any constitutional state “unfettered discretion” is a
contradiction in terms. The courts have long recognized that
discretionary power must be exercised according to certain minimum
standards; even those judges who have employed the misleading
adjectives that create the impression of unfettered power themselves
recognize that such powers cannot be exercised arbitrarily or
capriciously.’





The
vacuity of the adjectives ‘absolute’, ‘free’
and ‘unfettered’ was emphasized in the English case of
Padfield v Minister of Agriculture, Fisheries, and Food 26
where Lord Upjohn said:





My
Lords, I believe that the introduction of the adjective ”unfettered”
and its reliance thereon as an answer to the appellant’s claim
is one of the fundamental matters confounding the Minister’s
attitude, bona fide though it may be. First, the adjective nowhere
appears in section 19… Secondly, even if the section did
contain that adjective I doubt if it would make any difference in law
to his powers, save to emphasise what he has already, namely that
acting lawfully he has a power of decision which cannot be controlled
by the courts; it is unfettered. But to use that adjective …
can do nothing to unfetter the control which the judiciary have over
the executive, namely that in exercising their powers the latter must
act lawfully and that is a matter to be determined by looking at the
Act, and its scope and object in conferring a discretion on the
Minister rather than by the use of adjectives.’





[42]
The right to practise a profession is guaranteed by the Namibian
Constitution in the following terms:





Article
21 Fundamental Freedoms





(1)
All persons shall have the right to:





(a)





(j)
Practise any profession, or carry on any occupation, trade or
business.’





[43]
The Supreme Court has articulated the approach which must be adopted
when inquiring into whether a law infringes the Article 21(j) of the
Namibian Constitution as follows :27





That
approach must recognise, as this Court did, in Africa Personnel
Services that the right in art 21(1)(j) does not 'imply that persons
may carry on their trades or businesses free from regulation'. This
approach must be correct for nearly all trades, professions and
businesses are regulated by law. Article 21(1)(j) thus does not mean
that regulation of a profession will, without more, constitute an
infringement of the right to practise a profession that will require
justification under art 21(2), because professions are regulated and
regulation will often constitute no barrier to practising the
profession at all.





[26]
As the High Court observed in Namibia Insurance Association, any
regulation of the right to practise must be rational but that is not
the end of the enquiry. Even if the regulation is rational, if it is
so invasive that it constitutes a material barrier to the right to
practise the profession, the regulation will be an infringement of
the right to practise that will have to be justified under art 21(2).
In determining whether a regulation that does constitute a material
barrier to the right to practise is permissible under art 21(2), a
court will have to approach the question as set out in Africa
Personnel Services.





[27]
The approach thus has three steps: the first is to determine whether
the challenged law constitutes a rational regulation of the right to
practise; if it does, then the next question arises which is whether
even though it is rational, it is nevertheless so invasive of the
right to practise that it constitutes a material barrier to the
practise of a profession, trade or business. If it does constitute a
material barrier to the practise of a trade or profession, occupation
or business, then the government will have to establish that it is
nevertheless a form of regulation that falls within the ambit of art
21(2).’





[44]
I have earlier set out the background that gave rise to the Ministry
of Health Social Services initiating the enactment of the Medicines
Act. In a nutshell the minister argues that the irrational use of
drugs has increased the costs of medicine to the public and
undermines the safety, quality and efficacy of the medicines that are
dispensed to patients. He says that bad dispensing practises
compromise and place in jeopardy the health of patients and that of
the public at large and constitute a denial of access to health care
to the public.





[45]
According to the minister, the licensing scheme is directed at
addressing these bad dispensing and compounding practises and their
consequences. The underlying objective behind the licensing scheme is
to rationalize the use of medicine in the Namibia. The applicants do
not dispute the stated government purpose, or its legitimacy.
Instead, the applicants have sought to challenge the means used by
the government to achieve its objective to increase access to
medicines that are safe for consumption. They contended that the
means used by the government to achieve its objective are
unconstitutional. I am therefore, of the view that applicants do not
dispute the right of government to regulate the practise of the
medical profession. The need to regulate economic activities was
articulated as follows by Ngcobo, J:





‘…we
live in a modern and industrial world of human interdependence and
mutual responsibility. Indeed we are caught in an inescapable network
of mutuality. Provided it is in the public interest and not arbitrary
or capricious, regulation of vocational activity for the protection
both of the persons involved in it and of the community at large
affected by it is to be both expected and welcomed.'





The
vexed question, however, is whether section 31 (3) is so invasive of
the right to practise the medical profession that it constitutes a
material barrier to the practise of that profession.





[46]
The licensing scheme introduced by section 31 (3) regulates the
practise of the medical profession, but it regulates the practice in
a manner that, viewed objectively, does not affect the choice of that
profession by any person in any negative manner. I therefore do not
accept Mr Heathcote’s submission that the requirement of a
licence does take away the right to choose to practise medicine or
that it constitutes a barrier for those who want to practise the
medical profession. What section 31 (3) does is, merely to require
that, if the practice of medicine is to involve the selling of
scheduled medicine, this should be done by a medical practitioner in
respect of whom a licence to sell medicine has been issued.





[47]
The applicants have furthermore not placed evidence on the record
that the licensing requirements constitute a barrier to the practice
of the profession, such that medical practitioners withdrew from the
practice of the profession, because of the requirement to have a
licence to sell medicine. What does appear from the record, is that
there are medical practitioners (although in the minority) who
practise the medical profession without selling medicine. In the
circumstances, the applicants have not established that the licensing
scheme constitutes an infringement of Article 21(1) (j).





Do
the challenged provisions of the Medicines Act violate the
applicants’ ‘property right’?





[48]
The applicants contended further that the licensing scheme introduced
by section 31(3) also infringes the rights to property. Mr Heathcote
argued that the medical practitioners’ immaterial rights
comprised of goodwill and earning capacity, which they enjoyed and
exercised prior to the introduction of section 31 (3), which section
infringes those immaterial rights. He further argued that the
medicine, which doctors have in stock at any given time, becomes
valueless once the doctor is prohibited from selling it. He further
argued that the licensing scheme deprives medical practitioners of
assets in the form of goodwill and earning capacity. Their medicine
stock become valueless, thus their right to ownership is
expropriated.





[49]
The hollowness of that argument, with respect, becomes apparent if
one has regard to the interpretation and application of Article 16 of
the Namibian Constitution which provides as follows:





Article
16 Property





(1)
All persons shall have the right in any part of Namibia to acquire,
own and dispose of all forms of immovable and movable property
individually or in association with others and to bequeath their
property to their heirs or legatees: provided that Parliament may by
legislation prohibit or regulate as it deems expedient the right to
acquire property by persons who are not Namibian citizens.





(2)
The State or a competent body or organ authorised by law may
expropriate property in the public interest subject to the payment of
just compensation, in accordance with requirements and procedures to
be determined by Act of Parliament.’ { My Emphasis}





[50]
In my view Article 16(1) of the Namibian Constitution simply confers
the right on any person to own and dispose of property (movable,
immovable, real, incorporeal tangible and intangible). This was
recognised by this Court in the matter of De Roeck v Campbell and
Others (2) 28
when Levy, J said:





The
right to own property is a fundamental human right found in our
common law and now entrenched in our Constitution (art 16 of the
Constitution of Namibia Act 1 of 1990). Ownership includes the right
to possess one's own property, the right to dispose of it and even
the right to destroy it. If anyone else lays claim to such property
or to interfere with any one of those rights which are comprehended
by ownership, the onus is on such person to justify his claim. Where
a creditor obtains a judgment sounding in money the law makes
provision for the attachment by him of his debtor's property and the
sale in execution thereof. Even under such circumstances the laws of
execution are so framed so as to protect the debtor's rights subject
only to the creditor's rights in terms of his judgment.





[51]
I fail to see how section 31 (3) of the Medicines Act interferes with
medical practitioners’ right to own, dispose of or destroy any
medicine. What the section does is simply to regulate who may and who
may not sell Schedule1, Schedule 2, Schedule 3 or Schedule 4
medicines. Mr Maleka, who appeared for the respondent’s,
argued that as a matter of law the applicants do not have a right, in
law, to a regulatory scheme, which protects a commercial goodwill of
their medical practises above the legitimate governmental purpose of
controlling the dispensing of medicines. Mr Maleka referred me to the
dictum of Sachs, J in the matter of New Clicks South Africa (Pty) Ltd
and Others 29
where he said:





‘…the
mere fact that a government measure could result in service-providers
losing their competitive edge so as to face being driven out of
business would not in itself be enough to make a measure legally
inappropriate (unreasonable). The maintenance of 'business as usual'
is not a constitutional principle, and the concept of reasonableness
should not be used as an apparently neutral instrument which,
regarding the status quo as the settled norm, serves to block
transformation and freeze challengeable aspects of our public life.’
30





[52]
I accept Sachs, J’s dictum as a correct statement of the law
and so I adopt it. Indeed, I do not know of any rule of law and none
was referred to me, to the effect that because a system or a scheme
has been in existence for forty years, it cannot for any good reason
be changed without violating the right of those who benefitted from
the scheme or system. It is furthermore so that when the licensing
scheme was introduced medical practitioners were given a three months
opportunity to acquire a licence, allowing to sell Scheduled
medicine. During that three months period, they could either apply
for a licence or in a manner they deemed appropriate deal with the
medicines they held in stock. I thus hold that the licensing scheme
introduced by section 31 (3) of the Medicines Act does not infringe
any property rights of the applicants as contemplated in Article 16
of the Namibian Constitution.





Do
the challenged provisions of the Medicines Act violate the
applicants’ right to have their civil rights and obligations
determined by a competent Court or Tribunal?





[53] The
applicants contended further that the licensing scheme also infringes
the right to have their civil rights and obligations determined by a
competent Court or Tribunal. The right to have one’s civil
rights and obligations adjudicated upon by a competent Court or
Tribunal is contained in Article 12(1)(a) of the Namibian
Constitution which provides as follows:





Article
12 Fair Trial





(1)
(a) In the determination of their civil rights and obligations or any
criminal charges against them, all persons shall be entitled to a
fair and public hearing by an independent, impartial and competent
Court or Tribunal established by law: provided that such Court or
Tribunal may exclude the press and/or the public from all or any part
of the trial for reasons of morals, the public order or national
security, as is necessary in a democratic society.’





[54]
The argument on behalf of the applicants in this regard is as
follows: The power entrusted to the Council to consider applications
in terms of section 31 (3), amounts to it (the Council) exercising a
quasi-judicial function. Mr Heathcote further argued that, there can
be no doubt that section 31(3) gives the Council a discretion whether
to grant a licence or not. The only manner in which the exercise of
that discretion is guided, is by the criteria contained in Regulation
34(3)(b) and (f), which remained standing after the Supreme Court
judgment. There is no word in the Act itself, which either purports
to restrict or direct the discretion given to the Council and that is
an absolute discretion – there are no rational criteria left to
guide the Council in its decision-making process. He, therefore,
submitted that: (I again verbatim repeat what he said):





It
is reasonable to conclude that, in the circumstances, the discretion
to grant a section 31(3) licence or not, is exercised in a unilateral
and arbitrary fashion. There is no statutory provision that the NMRC
must keep records when considering applications. There is no
statutory provision for a right of appearance. The effect of such an
absolute discretion is stated in the dictum in Judes v Registrar of
Mining Rights.


Where
the statutory discretion in regard to the decision of any matter was
intended to be an absolute discretion, the court will only interfere
where it is satisfied that there has been no decision – that
the question referred to the public body or official has not been
considered; or where the decision has been arrived at under the
influence of corrupt, fraudulent or wholly improper motives; or where
the direct provisions of the statute have been disregarded.”





[55]
His argument went on as follows: The effect is that, as the law
currently stands, the quasi-judicial function of the Council (which
would normally require the observance of elementary duties commonly
referred to as the rules of natural justice and expressed by the
maxim audi et alteram partem and nemo iudex in sua causa) is
fulfilled by the exercise of an absolute discretion, reviewable on
very limited grounds. He further argued that the medical
practitioners thus find themselves in a position that their existing
civil rights and obligations are determined by a body which cannot be
said to act as a court or tribunal.





[56]
Mr Heathcote further submitted that, after the Supreme Court struck
down Regulations 34(3)(a), 34(3)(c), 34(3)(d) and 34(3)(e) of the
Regulations relating to Medicines and Related Substances, there is no
word in the Medicines Act itself which either purports to restrict or
direct the discretion given to the Council and that this is an
absolute discretion. He also submitted that there are no rational
criteria left to guide the Council in its decision-making process and
that the discretion to grant an section 31 (3) licence or not, is
exercised in a unilateral and arbitrary fashion.





[57]
The above arguments lose sight of a number of important facts; the
first fact is that section 8 (9) of the Medicines Act obliges the
Council to keep a record of its proceedings 31.
Furthermore an arbitration under the Labour Act, 2007 32is
a tribunal. There is no statutory right of appearance by legal
practitioner at an arbitration tribunal created under the Labour Act,
2007. It is within the discretion of the arbitrator to permit or not
to permit legal representation. It cannot solely for these elements,
seriously be argued that an arbitration tribunal under the Labour
Act, 2007 is not a tribunal within the meaning of article 12(1) of
the Namibian Constitution. In the case of Disciplinary Committee for
Legal Practitioners v Slysken Sikiso Makando33
Parker, J said the following:





‘…I
hold that the applicant is not an administrative body within the
meaning of Article 18 of the Namibian Constitution, and a priori,
Article 18 does not apply to the applicant. I hasten to add that I do
not for a modicum of a moment propose that the applicant is not bound
to act fairly and reasonably and comply with the requirements of the
rules of natural justice and the requirements of the LPA. The Court
is not an administrative body but it must, in determining any matter,
act fairly and reasonably and comply with the requirements of the
rules of natural justice and the requirements of any relevant
legislation. In this regard, one must not lose sight of the fact that
those noble requirements are not peculiar and exclusive to the
application of Article 18 in respect of administrative bodies and
administrative officials: they bind courts and other tribunals
because, as I say, they are not peculiar and exclusive to Article 18.





The
reasoning of Parker, J applies to this matter and I accept it. I am
of the opinion that the mere fact that the Council is not an
administrative body does not absolve it from acting fairly and
reasonably and comply with the requirements of the rules of natural
justice and the requirements of any relevant legislation.





[58]
It is correct that the Council is not a court as envisaged in Article
78(1) (a) of the Namibian Constitution, which reads as follows:





Article
78: The Judiciary





(1)
The judicial power shall be vested in the Courts of Namibia, which
shall consist of:





(a)
a Supreme Court of Namibia;





(b)
a High Court of Namibia;





(c)
Lower Courts of Namibia.’





[59]
But does it also mean that it is not a tribunal as envisaged in
article 12(1) (a) of the Namibian Constitution? I do not think so; in
my opinion the Council is a tribunal as envisaged by article 12(1)
(a) of the Constitution. My finding is buttressed by the following.
Armstrong34
argues that:





Tribunals
are informal investigative or quasi-judicial bodies which deal almost
exclusively with administrative law, and usually on a highly
specialized level.’





Professor
K Govender35
quoting Professor Farmers argues that a tribunal, by definition
should possess the following characteristics:





Firstly,
they should have the ability to make final, legally enforceable
decisions. Secondly, they should be independent from any departmental
branch of government. Thirdly, the nature of the hearings conducted
in tribunals should be both public and of a judicial nature, while
not necessarily subject to the stringent formalities of a court of
law. Fourthly, tribunal members should be in possession of specific
expertise, in the field of operation of the tribunal as well as
judicial expertise. Fifthly, there should be a duty on tribunals to
give clear reasons for their decisions, and lastly that there should
be a right of appeal to a higher court on disputes regarding points
of law.’





[60]
I, have, earlier stated above that the Council was established by
section 2 of the now repealed Medicines and Related Substances
Control Act, 1965 (Act 101 of 1965) and its existence was continued
in terms of section 2 of the Medicines Act and it has the powers
conferred to it by the Medicines Act, including the power to issue a
licence on application in the prescribed form by a medical
practitioner, a dentist or a veterinarian, authorizing that medical
practitioner, dentist or veterinarian to sell Schedule 1, Schedule 2,
Schedule 3 or Schedule 4 substances to his or her patients. I am
therefore, of the view that the Council conforms to the first
requirement of a tribunal namely; the requirement of enforceability
and finality.





[61]
The Council further meets the second and fourth requirements of a
tribunal because the Council consists of three medical practitioners,
three pharmacists, two veterinarians, one legal practitioner, one
registered nurse; one medical practitioner who, in the opinion of the
Minister, has sufficient knowledge of medicines and related
substances; and one other person. Out of the eleven members, who are
appointed to the Council, only four are employed by the State and the
other seven come from the private or public sector. The composition
of the Council confers on it a degree of independence. The members
must also have expertise in the field in which the Council operates.
It is common cause that the Council is required to give reasons for
its decisions and its decisions are appealable. So the Council also
conforms to the fifth and sixth requirements.








[62]
That submission is, in, my view misplaced and I reject it. I say the
submission is misplaced for the following reason: There is no doubt
that the Council is a statutory tribunal which derives its authority
and power from statute. As I have already found, every act or
decision of the Council will therefore, be subject to review by the
courts either under the Constitution or common law grounds. There is
thus not ‘very limited’ grounds for review. I therefore
have no doubt in my mind that the Council is a tribunal as envisaged
by article 12(1) (a) of the Namibian Constitution.





[63]
As far as costs are concerned, the issues raised by the applicants
were genuine constitutional questions, which raised matters of broad
public concern. Although the matter concerns constitutional issues
and constitutional rights, it does not, in my view, fall within the
ambit of cases in which it would be unfair or would lead to an
injustice, should costs follow the outcome of the case. I therefore
exercise my discretion by ordering that costs will follow the
outcome.





[64]
I therefore make the following order:





1.
The application is dismissed.





2.
Applicants are ordered to pay respondents' costs, which will include
the costs of one instructing and one instructed counsel.











SFI
UEITELE





Judge







APPEARANCES





APPLICANTS: R
Heathcote SC






Instructed by Francois
Erasmus & Associates








RESPONDENTS: V
Maleka SC






Instructed by N
Marcus Public Office









1Act
101 of 1965.




2Act
13 of 2003.




3See
paragraph 1 of the judgment in the matter of
Minister
of Health and Social Services and Others v Medical Association of
Namibia Ltd and Another

2012 (2) NR 566 (SC).




4See:
‘The Foreword to the National Drug Policy for Namibia’
published in August 1998 page (ii). (i.e. at page 1231 of the
record).




5See
paragraph 14 of the answering affidavit page 1169 of the record.




6See:
Preface to National Drug Policy for Namibia page (iv). (i.e. at page
1233 of the record).




7Supra
pages (iv – v).







8See
page 1240 of the record.




9Op
cit
.




10See
page 1241 of the record.




11See
page 1244 of the record.




12Section
46 (3) provides as follows:


(3)  
A person, who immediately before the commencement of this Act -


(a)      
was
practising as a medical practitioner, a dentist, a veterinarian or a
pharmacist; or



(b)      
was the
holder of a permit issued under section 22A(12) of the Medicines and
Related Substances Act, 1965 (Act No. 101 of 1965),


and
was acquiring, keeping, using, supplying, selling or prescribing, as
the case may be, scheduled medicines, the acquisition, keeping, use,
supply, sale or prescription of which must be licenced under this
Act, may continue to acquire, keep, use, supply, sell, or prescribe,
those medicines without a licence during the period of 3 months
beginning with the date of commencement of this Act.’




132006
(1) NR 35 (HC) page 48 at para 28.




141991
(3) SA 76 at page 78.




15In
Dawood
and Another v Minister of Home Affairs and Others; Shalabi and
Another v Minister of Home Affairs and Others; Thomas and Another v
Minister of Home Affairs and Others 2000 (3) SA 936 (CC) (2000 (8)
BCLR 837) at
para
35.




16Khumalo
and others v Holomisa
2002
(5) SA 401 page 418 at para 27.




17Neethling
J, Potgieter J M & Visser P J
Neethling’s
Law of Personality

2
nd
at page 28.




18Supra
at
footnote 16.




19European
Journal of International Law
(2008)19
(4) p 655.




20The
reasonable persons test was formulated as follows in
R
v Camplin 1978 AC 705

 A Reasonable person-


 


means
an ordinary person of either sex, not exceptionally excitable or
pugnacious, but possessed of such powers of self-control as everyone
is entitled to expect that his fellow citizens will exercise in
society as it is today.




211999
NR 190 (SC) at 199 H.




22See
paragraphs 14-18 of the affidavit on behalf of the Minister.




232006
(3) SA 247 (CC) at para [104] p 287.




24           
1891
AC 173 at p179.




25Baxter
L
Administrative
Law

1984 at p 409.




261968
AC 997 at p 1060.




27Per
O'Regan, AJA in
Trustco
Ltd t/a Legal Shield Namibia and Another v Deeds Registries
Regulation Board and Others
2011
(2) NR 726 (SC) at paragraphs 25 to 28 p 735.




281990
NR 126 (HC).




29New
Clicks South Africa (Pty) Ltd and Others (Treatment Action Campaign
and Another as Amici Curiae), Minister of Health and Another NO:
 2006
(2) SA 311 (CC).




30Supra
at para 660.




31Section
8(9) provides as
follows:                                                                                                       


(9)      
The chairperson must cause a record to be kept of the proceedings of
every meeting of the Council and must cause that record to be
submitted to the Minister as soon as is practicable after a meeting
of the Council.’




32Act
No.11 of 2007.




33An
unreported judgment of this court: Case No: A 370/2008 delivered on
18 October 2011.




34Gillian
Claire Armstrong ‘
Administrative
Justice and Tribunals in South Africa: A Commonwealth Comparison’ 
A
Thesis presented in partial fulfilment of the requirements for the
degree Master of Laws at the University of Stellenbosch: December
2011.




35Devenish
G E, Govender K, Hulme D
Administrative
Law and Justice in South Africa
.,
2001 p 445.