Court name
Supreme Court
Case name
Minister of Health and Social Services and Others v Medical Association of Namibia Ltd and Another
Media neutral citation
[2012] NASC 7




















REPORTABLE



CASE NO.: SA 13/2010 and



SA 21/2010



IN THE SUPREME COURT OF
NAMIBIA











In the matter between:










































MINISTER
OF HEALTH AND SOCIAL SERVICES



1ST
APPELLANT



MEDICINES
REGULATORY COUNCIL



2ND
APPELLANT



REGISTRAR
OF MEDICINES



3RD
APPELLANT



ATTORNEY
GENERAL



4TH
APPELLANT



and







MEDICAL
ASSOCIATION OF NAMIBIA LIMITED



1ST
RESPONDENT



DR
PC PRETORIUS



2ND
RESPONDENT








Coram: MAINGA JA, STRYDOM
AJA
et
LANGA AJA







Heard on: 31/03/2011



Delivered on: 21/06/2012











APPEAL JUDGMENT











STRYDOM AJA:



[1] Until 1965 the selling and
dispensing of medicine was the sole domain of pharmacologists. Then
in 1965, by virtue of sec. 22A of the Medicines and Related
Substances Control Act, Act 101 of 1965, the right to sell and
dispense certain categories of medicine was also extended to medical
practitioners. The provisions of the Act were applied to the
territory of the then South West Africa by sec. 39 of the Act. Act
101 of 1965 (“the 1965 Act”) further survived the
transition of South West Africa into an independent Namibia by virtue
of the provisions of Article 140 of the Constitution.







[2] This was the position
until Parliament passed the Medicines and Related Substances Control
Act, Act No. 13 of 2003 (“the Medicines Act”) which was
published on 28 August 2003 in Government Notice 192 of 2003, in
Government Gazette 3051.







[3] Prior to the publication
of “the Medicines Act” a National Drug Policy (“NDP”)
was published in 1998. This was done after consultation with various
institutions and health professionals from the public as well as the
private sector. Certain proposals made by it are relevant to some of
the issues to be decided in this matter. They are:







(a) a permit system for the
importing and exporting of medicines, which allows only holders of
permits to import medicine;







(b) where there were not
adequate pharmaceutical services, medical practitioners and nurses in
private practice were to be issued with a licence to dispense
medicine;



(c) in certain instances
pharmacists and nurses in private practice may be licensed to
prescribe certain specified medicines where there were no adequate
medical services.







[4] The “Medicines Act”
incorporated many of the proposals contained in the “NDP”.
The Medicines Act established the Medicines Regulatory Council (“the
Council”) with various functions and duties,
inter
alia,
to
comply with sec. 31(3) of the Medicines Act, namely to grant licences
to medical practitioners to sell medicines, subject to such
conditions which may be imposed by the Council.







[5] Because sec. 31(3)
requires medical practitioners to be licenced in order to sell
medicine, which was not a requirement in terms of the 1965 Act, the
Medicines Act provided for a three months moratorium within which
medical practitioners could regularize their position and apply for a
licence. This period started to run from the commencement of the Act
and medical practitioners who applied for a licence within the three
months were allowed to continue selling medicine until finalization
of the application. In terms of sec. 46(3), finalization included a
possible appeal by a medical practitioner to an appeal committee
established by sec. 34(8). See sec. 46(4).







[6] The Medicines Act further
provided that the Medicines Control Council, (the 1965 Council)
established in terms of the 1965 Act, was to perform the functions of
the Regulatory Council up to a day preceding the day on which the
Minister of Health and Social Services (“the Minister”)
appointed the members of the Council. (Sec. 46(1A)(a)). This meant
that members of the 1965 Council, who were members immediately before
the commencement of the Medicines Act, would continue in office until
the day preceding the day on which the Minister appointed the members
of the Council. (Sec. 46(1)(a)).







[7] The Medicines Act further
required that certain steps be taken and institutional arrangements
be put in place before the new system could come into operation.
Some of these steps were to be provided for in the regulations to be
published by the Minister. The Medicines Act provided that before
regulations could be finalized, draft regulations had to be published
for comment by interested parties (sec. 44(2)) and the Council had to
be consulted by the Minister (sec. 44(1)).







[8] The draft regulations were
published after the Medicines Act had been passed and published, but
before it was brought into operation.







[9] The Medicines Act was
brought into operation on 25 July 2008 and, simultaneously,
regulations were published in the same Government Gazette under
Government Notice 178.







[10] It is common cause that
certain members of the first respondent did not apply to the Council
for a licence to sell medicine within the period of three months laid
down by sec. 31(3) of the Medicines Act; it follows also that on the
expiry of this period they were no longer permitted to sell medicine
as they were now not licenced to do so.







[11] Certain members, who
seemingly were aware of the provisions of the Medicines Act, applied
for licences to dispense medicine. Every licence so applied for was
refused by the Registrar of Medicines (“the Registrar”)
on the basis that there was a pharmacy operating in the vicinity of
the medical practitioner’s practice and as pharmacists were
better qualified to dispense medicine there was no need to grant a
licence to the medical practitioner. In certain instances extensions
of the 3 month period were granted to medical practitioners by the
Registrar. It is common cause that these actions by the Registrar
were invalid as the authority to consider applications for a licence
by medical practitioners vested in the Council. All parties were
agreed that these abortive decisions by the Registrar should be set
aside and this was done by the Court
a
quo.







[12] An attempt was made by
the first respondent to get an extension of the three month period
laid down in sec. 31(3) as it was realized that those practitioners
who did not avail themselves of the three month period within which
they were required to apply for licences to sell and dispense
medicine were now, after its expiry, prohibited by the Medicines Act
from doing so without a licence. The attempt to get an extension of
the three month period failed.







[13] Certain members appealed
against the refusal of their licences but at that time an appeal
committee had not yet been appointed by the Minister.







[14] Following on the refusal
to extend the period of three months the respondents launched the
present proceedings by way of notice of motion, claiming the relief
set out hereunder, namely-







1. Calling upon the respondents (now
appellants) 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.







4. Ordering the respondents who oppose this
application, jointly and severally, to pay the costs of this
application.”







[15] We were further informed
that during argument of the matter in the Court
a
quo
a new
point was raised by the respondents, namely that the Minister, and
not the President, was the relevant authority to appoint the members
of the 1965 Council in terms of the provisions of the 1965 Act.
Notwithstanding objection by counsel for the appellants the Court
allowed the point to be raised on the basis that it was a legal
point.







Findings of the Court a
quo



[16] The application by the
respondents was successful in the Court
a
quo
and that
Court set aside the regulations in their entirety. This was firstly
done on the basis that there had not been a properly established 1965
Council, as required by the 1965 Act, because the Minister, and not
the President, published the names of the 1965 Council in the
Gazette. A further result of this finding was that there was not a
validly established 1965 Council which the Minister could consult
before publication of the draft regulations, as required by sec.
44(1) of the Medicines Act. Secondly the Court set aside the
regulations because the draft regulations, which were published for
comment by interested parties, were so published before the
commencement of the Medicines Act and, bearing in mind the provisions
of sec. 12(3)(c) of the Interpretation of Laws Proclamation No. 37 of
1920, this was not permissible. Because no valid publication of the
draft regulations for comment took place, it followed that the
regulations subsequently published, on the same day that the
Medicines Act became law, did not allow time for consultation by the
Minister with the Council and were therefore invalid. The Court
further set aside the decisions taken by the Registrar in terms of
which he dealt with applications for licences by medical
practitioners.







[17] The Court also granted an
order in terms of prayer 3 of the notice of motion in a slightly
amended form by suspending the operation of sec 46(3) of the
Medicines Act until such time as the Minister had made and published
new Regulations in terms of sec. 44. The Court further ordered that
the three month transitional period would run afresh from the date
that the Minister issued new regulations.







[18] This order did however
not solve the problem as it created a
lacuna
during which those medical practitioners, who did not submit
applications for licences in time when the moratorium was in
operation, could now not have the protection thereof until such time
as the new regulations were promulgated by the Minister. The
respondents then applied for a variation of the order which was duly
granted and the Court further ordered that an appeal by the
appellants would not suspend the operation of the order.







[19] The relief granted in
terms of the variation order forms the subject of a separate appeal
by the appellants which was heard together with the main appeal. I
shall later deal with the submissions in this regard.







The Appeal before this
Court



[20] The appeals before this
Court were set down for hearing on the 31 March 2011. However, on the
18 February 2011 the respondents served an application on the
appellants in which they claimed that the Notice of appeal, filed in
the main appeal, be declared null and void, alternatively, that the
allocation by the Registrar of the Supreme Court of a date in the
main appeal be declared
ultra
vires
and
null and void. They also claimed costs. This application was launched
in the High Court. Attempts were then made by the respondents to get
the appellants to agree to a postponement of the appeal pending the
finalization of their application in the High Court. In this the
respondents were not successful but they were advised to get
directions from the Chief Justice. This they did and by letter dated
7 March 2011 the Registrar of the Supreme Court informed them as
follows:







The Honourable Chief Justice has
directed that the parties in the matter be advised that the appeal
will be called on the date of set down and, on that occasion, the
Court will entertain the appeal and/or all matters or arguments
ancillary or incidental thereto properly brought before the Court for
consideration.”







[21] This direction by the
Chief Justice cleared the air and the appeals were duly argued on 31
March. However, the application launched by the respondents in the
High Court then found its way into the record of appeal and was thus
placed before us unbeknown to the parties. Mr Heathcote also attached
a copy of the application to his heads of argument. This was not the
proper way to place evidence before this Court, as was pointed out by
Mr Budlender, assisted by Mr Marcus for the appellants. Mr
Heathcote, assisted by Ms Schneider, for the respondents, conceded
this and stated that we should ignore the application. How it
happened in the first place that a copy of this application was put
before us is not clear to me and normally this Court would censure
such irregularity with an appropriate order of costs. It seems,
however, that the record of the application was attached to a letter
by the Legal

Practitioner of the respondents to the Registrar of the Supreme Court
in which the Registrar was requested to ask for a direction from the
Chief Justice. From this it seems that it was not the intention to
place the application before the Court of Appeal and that it found
its way into the record by mistake. As a result of this mishap we
allowed Mr Budlender to place two short affidavits, by the Minister
of Justice and the Attorney General, before us in which they dealt
with the authority of the Government Attorney to have launched the
appeal in this instance. However, in so far as this application in
the High Court was also attached to the heads of argument of the
respondents the costs occasioned thereby, if any, shall form part of
the costs of the appeal.







The arguments and findings
by this Court on the merits of the main appeal



[22] The appellants appealed
against the whole of the judgment and orders by the High Court. This
would include orders (d) and (e) of the Court’s Order dated 28
June 2010, dealing with the invalid decisions taken by the Registrar,
i.e. the third respondent. It is clear that that was never the
intention and I will leave it at that. However, full heads of
argument were placed before us that enabled counsel to shorten their
oral arguments for which this Court expresses its appreciation.







[23] In his heads of argument
Mr Heathcote gave notice of certain objections he intended to raise
in limine
against the appeal. Both counsel dealt with these issues during the
presentation of their arguments on the main appeal and not
necessarily at the outset of their arguments. However, I intend to
deal with these objections at the outset. Some of the objections,
raised in respondent’s heads of argument were wisely abandoned
by Mr Heathcote. Those remaining are:







(i) that the Government attorney was
not authorized to bring an appeal on behalf of the appellants; and







(ii) that the appellants failed to furnish
security, as required by the Rules of the Court, and that as a result
thereof the appeal was deemed to have been withdrawn.”







(i) The lack of authority
by the Government Attorney to institute the appeal



[24] In his heads of argument
Mr Heathcote still urged this Court to consider the application which
was brought in the High Court and whereby it was insisted that that
application should first be heard and disposed of before the appeal
could be heard. He, however, did not persist in this argument and
informed the Court that it could ignore what was set out in that
application. This was, in my opinion, a wise decision. The issues
raised in the application before the High Court concern
non-compliance with rules of the Supreme Court. The Supreme Court is
the only Court which can condone, in appropriate circumstances,
non-compliance with its own rules or can censure parties with costs
orders etc. for a failure to do so. In short the Supreme Court is
the guardian of its own rules and is therefore the forum to deal with
any objections or complaints of non-compliance with those rules.







[25] The gist of counsel’s
argument regarding the lack of authority by the Government Attorney
to launch the appeal is that he cannot do so without a proper mandate
by the appellants and that the circumstances are indicative that no
such specific mandate was obtained. I agree with Mr Heathcote’s
submission that no further evidence is necessary in order to argue
this point in this Court. It is clear from the notice of appeal that
the appeal was launched within hours after the Court
a
quo
handed
down its order on the 28 June 2010. Furthermore we allowed the
appellants to hand up two affidavits by the Minister of Justice and
the Attorney General concerning the issue of authority of the
Government Attorney. From these affidavits it transpired that at the
time when the appeal was launched they were not aware thereof but
they expressed their approval of the launching thereof and confirmed
and supported what was done by the Government Attorney. Mr Heathcote
relied on the affidavits to argue that that was clear evidence that
there was, at the time the notice of appeal was filed, no mandate
given to the Government Attorney to do so. Counsel further relied on
the following authorities concerning the functions of the Government
Attorney, namely
Commissioner
of Inland Revenue v Baikie,
1932
AD 184,
MEC
for Economic Affairs, Environment and Tourism v Kruizenga and
Another,
2010(4)
SA 122 (SCA) and
Xatula
v Minister of Police, Transkei,

1993(4) SA 344 (TK).







[26] Mr Budlender submitted
that the issue was not properly raised and that the respondents
should therefore not be allowed to argue it. I, however, agree with
Mr Heathcote that the affidavits by the Minister and the Attorney
General put the issue beyond any doubt and that nothing more is
necessary to enable the respondents to bring their objection before
this Court. That is not the end of the matter as there is authority
that the Government Attorney holds a general authority to act on
behalf of the Government because of the statutory position he holds.







[27] This was decided in the
case of
Dlamini
v Minister of Law and Order and Another,
1986(4)
SA 342 (D). In this matter counsel for the Minister entered into a
settlement agreement with the legal representative of the plaintiff.
The matter was then postponed and on the extended date another
counsel, appearing for the defendant, argued that the settlement was
invalid on the grounds that the Deputy State Attorney did not have
authority to have instructed counsel to enter into the settlement. In
regard to the authority of the Deputy State Attorney the Court,
Friedman, J, remarked as follows at page 348 to 349:







It is common cause that counsel who
concluded the settlement had been duly and properly instructed by the
Deputy State Attorney in Durban. The first respondent, although he
says he was not aware of this particular application, does not
suggest that the Deputy State Attorney had no authority either to act
on his behalf or to brief counsel on his behalf. Indeed, the
authority of a Deputy State Attorney to act on behalf of a Minister
or any State official, sued in his capacity as such, emerges from the
provisions of s 3 of the State Attorney Act 56 of 1957. It is no
doubt because of these provisions that, even where powers of attorney
would otherwise be required to be filed, a State Attorney is not
required by Rule 7 (5) (a) to file a power of attorney before acting
on behalf of a State official.



The present case has to be decided, of
course, simply upon the basis of the probabilities. In the absence of
any express statement to the contrary by the respondents, and in the
absence of any evidence to the contrary, I consider that it is
extremely improbable that the Deputy State Attorney of Durban would
act on behalf of either of the respondent or brief counsel on their
behalf if he did not have general authority to act on their behalf in
proceedings of this kind. It seems to me overwhelmingly likely, in
the absence of evidence to the contrary, that the Deputy State
Attorney, both himself in the role he played in the settlement and in
briefing counsel to appear on behalf of the Minister, did so because
of a general authority conferred upon him to act in matters of this
kind. There is no suggestion that he did what he did contrary to or
in defiance of any express instruction.”







(See further Moult
v Minister of Agriculture and Forestry, Transkei
1992(1)
SA 688 at 692 B – E.)







[28] Prior to independence the
State Attorney at Windhoek was a branch office of the office of the
State Attorney, Pretoria, in terms of the State Attorney Act, Act No.
56 of 1957. (Sec. 3(2) of Act 56 of 1957.) However by State
President’s proclamation R161 of 1982 the Windhoek branch
office was converted into the Government Attorney’s office for
the Territory of South West Africa. It did not repeal Act 56 of 1957
but amended certain words to bring it in line with the Proclamation.
Sec. 4 of the Proclamation sets out the functions of the Government
Attorney which, in general, are the same as set out in sec 3 of Act
56 of 1957,







[29] The Government Attorney
occupies a different relationship to its only client, the Government
of Namibia, than a legal practitioner in private practice
representing a client. His salary is paid by the Government and as
such he is employed by the Government to fulfill its functions on
behalf of the Government. Similarly the rules of the High Court
(Rule 7(5)) and that of the Supreme Court (Rule 5(4)(c)) do not
require the Attorney–General or the Government Attorney to file
powers of attorney where they act on behalf of the Government of
Namibia or a Minister or other officer or servant of the Government.







[30] The cases relied upon by
Mr Heathcote do, in my opinion not support the contention of counsel
that in all circumstances the Government Attorney can only act after
he had been expressly mandated by the Government to do so. Nor do
the cases relied upon by counsel contradict what was stated by
Friedman, J, in the
Dlamini–case,
supra.







[31] The case of Commissioner
of Revenue v Baikie, supra, was

a review of taxation by the Taxing Officer of the Court concerning
two bills of costs. The Court analysed the then applicable Act, Act
25 of 1925, and concluded that the object of the Act was to put the
Government Attorney, in the exercise of his functions as an attorney
of the Government, in the same position, generally speaking, as that
of an attorney in private practice (p187). In other words the
Government Attorney can institute actions or defend actions etc. as
if he/she was an attorney in private practice. The question whether
he/she could only act on a specific mandate was not decided nor was
it necessary to decide it as the authority of the Government Attorney
to act was not an issue before the Court.







[32] In the case of Xatula
v Minister of Police, supra,
the
plaintiff claimed damages for loss of support by her son who was
killed by the police. The Minister admitted the killing of the
deceased by the police but denied liability. One of the points raised
by counsel for the plaintiff was that the issues of liability and
quantum were
settled by the parties. The Court allowed evidence by affidavit on
this issue. One such affidavit was by the person in the office of the
State Attorney who acted in the matter. He confirmed that a
settlement, as alleged, was entered into. An affidavit by the
Minister was to the effect that although he mandated the Government
Attorney’s representative to conclude a settlement he was
misled by such person and that the matter must therefore go to trial.







[33] With reference to the
Moult
case counsel for the plaintiff argued that the Government Attorney
held a general mandate to act on behalf of the Government and
consequently the settlement must be upheld. In this regard the
learned Judge stated the following at p 352F:







Although a Government Attorney does
not require a power of attorney on behalf of a government department
I do not think that s3 of the Act gives him general authority to
conclude a settlement agreement on behalf of his client. For that he
would require a specific mandate from his client.”







It seems to me that counsel
misunderstood what was stated by the Court. The Court did not say
that sec. 3 did not give a general authority to institute or defend
cases. The Court specifically referred to the fact that it was not
necessary for the Government Attorney to file a power of attorney.
What it in fact said was that general authority was not enough and
that, in order to conclude a settlement agreement, specific authority
to that extent was necessary. The Court indeed referred to the
Dlamini case,
supra,
with approval. The Court then found that there was such specific
authority and granted judgment for the plaintiff. The Court’s
finding that in order to conclude a settlement a general authority to
institute or defend cases was not enough, and that specific authority
to that extent was necessary, is based on a line of cases which were
to the effect that steps taken by a legal representative, which might
prejudice his client, had to be specifically authorized. This
principle is put in perspective in the third case referred to by Mr
Heathcote, namely
MEC
for Economic Affairs, Environment and Tourism v Kruizenga and
Another, supra.




[34] The MEC
case
concerned a claim for damages instituted by two property owners who
alleged that a fire, which started on provincial government land, and
which spread to the adjoining properties, was the result of the
negligent failure of employees of the government to take preventative
measures to contain the fire. At the first of two rule 37 pre-trial
conferences the State Attorney admitted liability for the damages
caused by the government employees. At the second conference the
State Attorney admitted some of the claims for damages. The Court
thereupon granted judgment in those claims which were admitted.
Thereafter, and in an attempt to reopen the government’s case
on the merits, the appellant launched an application to rescind and
to set aside the court order and to withdraw the admissions made by
its legal representative at the rule 37 conferences. This was done on
the basis that the State Attorney was not authorized to settle the
matter on behalf of the appellant. The application was unsuccessful
and on appeal to the Supreme Court of Appeal the Court found that, in
the absence of special circumstances, the appellant was estopped from
resiling from an agreement deliberately reached at a rule 37.







[35] During its discussion of
the case the Court of Appeal stated that it was now settled law that
a client’s instruction to an attorney to sue or to defend a
claim does not generally include the authority to settle or
compromise a claim or defence without the client’s approval
(para. 7). The Court also discussed various cases where this
principle was either applied or distinguished and not followed. It
also referred to cases where it was held that the authority of the
State Attorney was broader than that of an attorney in private
practice. The case however, lends no support for the submission made
by counsel for the respondents and the authority of the State
Attorney to defend the matter was never an issue between the parties.







[36] In the result I am not
persuaded that the Government Attorney did not have authority to
appeal in this matter. The Government Attorney acted
bona
fide
and in
the interests of its client, the Government of Namibia. Also, in
regard to appeals on behalf of the Government, the Government
Attorney is exempted from filing a power of attorney and in my
opinion the same rules must apply in regard to his general authority
as would apply in the High Court. There is no contrary evidence that
the Government Attorney acted in defiance of any express instruction.
That is clear from the affidavits handed in by Mr Budlender. The
other party who might have objected to the appeal is the Minister of
Health and Social Services and he is a party to the proceedings. In
this instance the Government Attorney used his powers in terms of the
provisions of the Government Attorney’s act to suspend the
order of the Court
a
quo
and he
did so in haste to avoid the chaos which would have resulted because
of the order of the Court that all regulations made by the Minister
were invalid.







(ii) The failure to enter
into good and sufficient security by the Government Attorney



[37] Mr Heathcote argued that
although rule 8(5) exempted the Government from the obligation to
enter into security the Government of Namibia was not cited as a
party to this appeal. Counsel submitted that the rules drew a clear
distinction between the Government of the Republic of Namibia and its
Ministers and other officers and/or servants, and, so it seemed, the
logical conclusion to this argument was, that if the proceedings were
not in the name of the Government but in the name of a relevant
Minister or other officer, employed by the Government, the exemption
did not apply. This conclusion is reached by counsel applying the
wording of rule 5(4)(c) which, in the words of counsel, draws a clear
distinction between the Government, on the one side, and its
officers, such as a Minister. The rule on which counsel relied reads
as follows:







5(4)(c)No power of attorney shall be
required to be filed by the Attorney-General, the Government Attorney
or any attorney instructed in writing or by telegram by or on behalf
of the Attorney-General or the Government Attorney in any matter in
which the Attorney-General or Government Attorney is acting in his or
her capacity as such or on behalf of the Government of Namibia or any
Minister, Deputy Minister or other officer or servant of the said
Government.”







[38] Rule 8(5) of the Supreme
Court, exempting the Government from giving security, is not as
complete as rule 5(4)(c) and merely states that it shall not be
necessary for the Government to give security.







[39] A Government is an
amorphous body consisting of various ministries, departments and
institutions. Some Acts require that a particular officer or Minister
should be cited where proceedings are instituted against a particular
ministry or an officer of such a ministry. Where an Act does not
require the citation of a specific officer the Government is usually
cited or the relevant Minister or both. The purpose of rule 5(4)(c)
is to exempt the Government from filing a power of attorney and, by
referring to the other mutations by which the Government may be
cited, the rule makes it clear that where an officer or Minister is
cited in his or her capacity as such, acting on behalf of the
Government, he or she is part and parcel of the Government. This
seems to me to be a logical conclusion which exists solely because
those officers are cited in their capacities as representatives of
the Government acting for and on behalf of the amorphous body that is
the Government. Therefore far from distinguishing between the
Government and its officers the rule tells us that they are all the
same, namely the Government of Namibia.







[40] I am therefore of the
opinion that where the word Government is used in rule 8(5) it bears
the same meaning ascribed to it in rule 5(4)(c). This it seems to me
is not only a conclusion which follows logically but it also accords
with the rule of interpretation that where the same word or words are
used in a statute they must be given the same meaning unless a
contrary intention is clear from the context in which those words
appear. (See
Schwikkard
v Liquor Licensing Board for Area 32,
1970(4)
SA 222 at p 226E–227A.) There is in my opinion no indication
that the use of the word Government in rule 8(5) was intended to give
it a different meaning from its use in rule 5(4)(c). Furthermore the
purpose of rule 8(5) is, as rule 5(4)(c), to exempt the Government
from a requirement which the rule places on ordinary litigants,
namely to give security. The underlying reason seems to be that a
private citizen may turn out to be a man of straw who may not be able
to pay the costs of an unsuccessful appeal. This reason is absent
where it concerns the Government. An interpretation that on the
chance that a party cited the Government, and not a Minister or other
officer, no security needs be put up but where a Minister or other
officer is cited, representing the Government, it is necessary for
the Government to give security, would in my opinion give rise to an
absurdity. There is also nothing in the context in which the word
Government is used in rule 8(5), or in regard to all the other rules,
which suggests a different meaning.







[41] Mr Heathcote further
submitted that even if the Court should find that there was proper
compliance as far as the Minister and the Attorney-General were
concerned then it can by no means be said that the Council and the
Registrar qualified as employees or institutions of the Government
and that therefore they were required by the rules of this Court to
file powers of attorney and to put up security. I shall accept
without deciding that this submission by counsel is correct. But in
my opinion it does not take the matter any further. All the
appellants were represented by the same legal practitioner and
counsel. It therefore does not involve any extra costs. The
Registrar of the Supreme Court was entitled to allocate a date of
hearing in this Court because of the fact that the Minister and the
Attorney-General were properly before this Court and were entitled to
have their appeal heard and adjudicated.







The main Appeal on the
Merits



Was the 1965 Council
validly appointed?



[42] Although the respondents
initially were of the opinion that the members of the 1965 Council
were wrongly appointed by the President, in terms of the 1965 Act,
and that they should have been appointed by the Minister, the parties
were now agreed that the Council was correctly appointed by the
President because of the provisions of the Executive Powers Transfer
Proclamation (General Provisions) 1977, Proc. No 7 of 1977 which
proclamation only applied amendments to the 1965 Act, brought about
in South Africa, up to the time of its transfer to the administration
of the Administrator-General. A later amendment of the 1965 Act in
South Africa, which empowered the Minister to make the appointments,
instead of the President, did not apply to the then South West Africa
or, after Independence, to Namibia.







[43] Bearing in mind the
provisions set out above, it is now common cause that sec. 3(2) of
the 1965 Act required the President to appoint the members of the
1965 Council. However, on an interpretation of AG Proclamation 7 of
1977 and AG Proclamation 14 of 1977, it was contended by Mr Heathcote
that the word “Minister” where it appears in sec 4(3) of
the 1965 Act must now be read as a reference to the President of
Namibia and that it was the President, and not the Minister, who was
required to publish the names of the members of the 1965 Council in
the Government Gazette. It is however common cause that notice as
required by sec 4(3) was not given by the President but by the
relevant Minister. This led counsel to submit that the Minister, in
publishing the names of the members of the 1965 Council, acted
ultra
vires
his/her
powers and it followed that the members of the 1965 Council were not
validly appointed.







[44] Mr Budlender submitted
that there was no indication in the 1965 Act which required
publication of the names of the members of the Council as a
pre-requisite for the validity of the appointments made by the
President. He pointed out that the issue of publication appeared in
a different section of the Act.







[45] He further submitted that
the purpose of the publication of the names of the members of the
1965 Council, appointed in terms of the 1965 Act, was to give notice
to the public that the said Council was established. The purpose for
which the 1965 Council was established is set out in the 1965 Act and
is many faceted.







[46] The parties therefore
agreed that the 1965 Council appointed by the President in terms of
the 1965 Act was, on the basis of Art. 140(4), correctly so appointed
by him. Furthermore, it seems to me that the purpose for which
publication was necessary was achieved notwithstanding the fact that
it was the Minister and not the President who was instrumental in the
publication thereof. I could also not find any indication that
publication was a prerequisite for the legality of the 1965 Council.
There is no sanction for non-compliance with this requirement, and
also no time set within which publication should be made. Although
the publication of the names of the 1965 Council is couched in
peremptory language, cases such as
Nkisimane
and Others v Santam Insurance Co Ltd,
1978(2)
SA 430 (A) at 433H–434E, and
Weenen
Transitional Land Council v van Dyk,
2002(4)
SA 653 at pa. 13, show that this issue is not so easily determined
and that various factors may have to be considered to determine
whether a particular provision in a statute is “peremptory”
or “directory” as was argued by counsel.







[47] For the reasons set out
hereunder I need not decide the issue on these grounds. Both counsel
accepted the rationale by the Court
a
quo
as to
why it was necessary that publication of the establishment of the
1965 Council and the names of its members should have been published
by the President in the Gazette, notwithstanding the fact that sec.
4(3) of the 1965 Act empowered the Minister to do the publication.
The ratio of the learned Judge
a
quo
is based
on the wording of the said proclamation 7 of 1977 whereby references
in any South African Act, so transferred to the Administration of the
Administrator-General, wherein reference is made to a Minister was to
be read as reference to the Administrator-General. Furthermore
Article 140(5) equated the Administrator-General, where-ever there is
reference to him in legislation enacted by his administration, to the
President and on the strength of this Article it was accepted that
where the word Minister was amended in sec 4(3) in the 1965 Act, to
read Administrator-General, that that was a clear indication that the
President was intended where such references were made in legislation
in general.







[48] Because both counsel
accepted that for the word “Minister”, where it appears
in sec 4(3) of the 1965 Act, must be read “President”, no
argument was presented to the Court on whether this was a correct
interpretation made by the Court
a
quo.
Closer
scrutiny of the provisions of the Constitution, and more particularly
Article 140 thereof, threw some doubt on whether the Court
a
quo
came to
a correct conclusion. Consequently counsel were invited to submit
further written argument dealing with the following issues:



Was the Court
a quo
correct to read for the
word ‘Minister’, where it appears in s 4(3) of Act 101 of
1965 (Medicines and Related Substances Control Act), firstly the word
‘Administrator-General’ and for the word
‘Administrator-General’ the word ‘President’,
seemingly on an interpretation of the provisions of Article 140 of
our Constitution read with certain proclamations by the
Administrator-General, having regard to the answers to the following
questions:








  1. Instances where reference in an enactment
    to the ‘Administrator-General’ must be read for
    ‘President’ are set out in Article 140(5). Are those
    instances not limited to ‘….legislation enacted by such
    Administration….’?









  1. Is Act 101 of 1965 legislation enacted by
    the Administrator-General or is it an enactment of the South African
    Parliament?









  1. Does the Constitution spell out the
    instances where reference in an enactment should be read as
    reference to the President, see e.g. Articles 140(4) and 140(5), and
    whether, in the light thereof, and further bearing in mind the
    answers to questions (a) and (b) above, was the Court
    a
    quo
    correct in finding that the
    ‘corresponding official of the Administrator-General after
    independence, as envisaged in Article 140(2) of the Constitution, is
    the President of the Republic of Namibia’?









  1. Furthermore, did the deeming clause in
    Article 140(5) not, by necessary implication, do away with
    references to the Administrator-General in legislation administered
    by him, such as Act 101 of 1965, by deeming that the Government of
    the Republic of South Africa shall include the administration of the
    Administrator-General?









  1. Did the Minister therefore act ultra
    vires
    his powers when he
    published the appointment of the Medicines Control Council in terms
    of sec 4(3) of Act 101 of 1965 bearing in mind that the section
    empowers specifically the Minister to do so?”








[49] Both parties availed
themselves of the opportunity to hand in further written argument
dealing with the above questions. The Court wants to thank them for
the promptness in delivering these Heads which were of great help.







[50] In the supplementary
heads, filed on behalf of the appellants, Mr Budlender submitted that
Article 140(5) limits instances where reference to the
Administrator-General should be read as a reference to the President
to instances where laws were enacted by his administration.
Consequently it is only in those instances where reference in those
laws to the Administrator-General could be read as a reference to the
President. Furthermore, the fact that the administration of the
Administrator-General was deemed to be included in the administration
of the Government of the Republic of South Africa, it did away with
any reference to the Administrator-General in those laws not so
enacted by his administration. Counsel therefore submitted that the
publication of the appointment of the 1965 Council was correctly made
by the Minister of Health and Social Services.







[51] Mr Heathcote referred the
Court to its decision in the matter of
Müller
v President of the Republic of Namibia and Another,
1999
NR 190 (SC) where it was stated at p194E-G that reference in the
Aliens Act to the Administrator-General must be read as a reference
to the President of the Republic of Namibia. The Aliens Act, as the
1965 Act, is an act by the South African Parliament which was
transferred to the administration of the Administrator-General. The
authority is therefore relevant to the present issue as it supports
the submissions made by Mr Heathcote. See also
S.
v Tcoeib,
1999
NR 24 (SC) at 29H-30D. I will later come back to these two cases.







[52] Counsel further submitted
that Art. 140(1) of the Constitution dealt with all the laws in force
at the time of the Independence of Namibia. That included enactments
by the Administrator-General. That is also the effect of Sub-Arts.
140(2), (3), (4) and (5). After, having enacted Arts. 140(1) –
(4) the Founding Fathers realised that there was also a body of
legislation by the Administrator-General wherein there would be no
reference to the President. In regard to legislation by the
Administrator-General and his administration, it was therefore
necessary to set out in Art. 140(5) that references to him, in such
legislation, must be read as references to the President.







[53] Counsel therefore
submitted that sec 3(1)(a) of the General Transfer Proclamation AG 7
of 1977 had the effect of reading for the word Minister in sec. 4(3)
of the 1965 Act, the word Administrator-General which in terms of the
provisions of Art 140 of the Constitution must now be read as a
reference to the President.







[54] Counsel are in agreement
that the 1965 Act was not an enactment by the administration of the
Administrator-General but was an act of the South African Parliament.







[55] Article 140 of the
Constitution is the provision whereby Government power was
transferred from the South African Government to the new Government
of Namibia. To ensure a smooth transfer of such powers and not to
create a hiatus in the administration of Namibia, sub. art. (1) of
Art. 140 provides that all laws previously in force in Namibia shall
remain so until repealed or amended by an Act of Parliament or
declared unconstitutional by a competent Court. Sub-art (2) deals
with the vesting of such powers created by the existing laws. Where
in such laws there is reference to the Government or a Minister or
other official of the Republic of South Africa it shall be deemed to
be a reference to the Government of Namibia or a corresponding
Minister or official. Sub-art. (3) deems anything done under these
laws by the Government, a Minister or other official of the
Government of South Africa to have been done by the Government of
Namibia or a corresponding Minister or official.







[56] The relevant parts of
Sub-arts (4) and (5) of Art 140 need to be set out fully as the
findings of the Court
a
quo
and the
arguments presented by Counsel mainly turn on the wording of these
Sub-articles. They provide as follows:







(4) Any reference in such laws to
the President, the Government, a Minister or other official or
institution in the Republic of South Africa shall be deemed to be a
reference to the President of Namibia or to a corresponding Minister,
official or institution in the Republic of Namibia.







(5) For the purposes of this Article the
Government of the Republic of South Africa shall be deemed to include
the Administration of the Administrator-General appointed by the
Government of South Africa to administer Namibia, and any reference
to the Administrator-General in legislation enacted by such
Administration shall be deemed to be a reference to the President of
Namibia, and any reference to a Minister or official of such
Administration shall be deemed to be a reference to a corresponding
Minister or official of the Government of the Republic of Namibia.”







[57] A reading of Art. 140
shows that it is a comprehensive provision to achieve a complete and
full transfer of the powers vested in the South African Government to
the new Government of the Republic of Namibia. To that extent the
Governmental hierarchy of South Africa with a State President and
Ministers and/or other officials was basically the same as that of
the new Government of Namibia with a President, Ministers and other
officials so that such transfer could be easily achieved without the
possibility that somewhere or somehow powers vested in some or other
obscure person or institution were going to be left out. However,
there was in the hierarchy of South Africa or in the independent
Republic of Namibia no such designation as an Administrator-General.







[58] Article 140 (2), (3) and
(4) clearly set out when reference to the President or a Minister or
other official of the Republic of South Africa shall be a reference
to the President, a Minister or an official of the Republic of
Namibia. No mention is made of the Administrator-General. This, in my
opinion, was deliberately done because Sub-art. (5) deals exclusively
with the Administrator-General and his administration of Namibia and
it sets out when, in terms of enactments by such administration,
references to the Administrator-General or a Minister or other
official must be deemed to be a reference to the President, a
Minister or other official of the Republic of Namibia. This was
limited to enactments by the administration of the
Administrator-General and there is, in my opinion, no reason why
these words should not bear their ordinary grammatical meaning. The
effect of this is that only where there are in enactments of the
administration of the Administrator-General reference to the
Administrator-General will such reference be a reference to the
President of the Republic of Namibia. To read into Sub-art. (4)
reference to “other official” as a reference to the
Administrator-General is clearly contextually wrong and would be in
conflict with the provisions of Sub-art. (5).







[59] As I have previously
pointed out the fact that there was no reference to the
Administrator-General in Sub-arts (2), (3) and (4) was deliberate and
not done by mistake or per
incuriam.
After all the administration of the Administrator-General forms an
important part in the political history of this country and during
his term of eleven years various enactments were promulgated by his
administration. If it was the intention of the Founding Fathers to
deal differently with this Administration it is my opinion that Sub-
arts. (4) and (5) would have been differently worded. If it were the
intention to have all references in any Act to the
Administrator-General to be a reference to the President of the
Republic of Namibia the Constitution would have stated so. This could
easily have been achieved by including into Sub-Art. (4) also
reference to the Administrator-General or to state in Sub-art. (5)
that any reference in any law to the Administrator-General would be a
reference to the President of the Republic of Namibia, rather than
to leave it to extensive interpretation to read into the words “other
official”, in Sub-art. (4) of Art. 140 the words
Administrator-General just because in regard to enactments by him he
is equated with the President of the Republic of Namibia.



[60] Because reference to the
Administrator-General is to be regarded as a reference to the
President of the Republic of Namibia only in regard to enactments by
such administration, it follows, as a matter of necessary
implication, that references in enactments by the South African
Parliament to the Administrator-General, as a result of sec 3(1) of
AG Proc. 7 of 1977, were done away with. This achieved the further
purpose that references to the President, a Minister or other
official of the Republic of South African were, in terms of the
Constitution, now a reference to the President or a corresponding
Minister or official of the Government of the Republic of Namibia
without reference to the words Administrator-General.







[61] This brings me to the
cases referred to by Mr Heathcote in the matters of
Müller
and
Tcoeib.
In none of these cases was it an issue before the Courts whether it
was the President or a Minister who had to act in a particular
instance. In the
Müller
case, where
I wrote the judgment, there was no argument concerning this aspect of
the case and, as far as I could determine, the same goes for the
Tcoeib case.
I must point out that in the latter case, where the Court dealt with
the Prisons Act, Act No. 8 of 1959, an Act by the South African
Parliament, extensive amendments to the Act were brought about by Act
No. 13 of 1981, an Act by the Administration of the
Administrator-General. The sections which the Court was called upon
to interpret were all part of the 1981 Act which was, as I have
mentioned an Act by the administration of the Administrator-General.
It is therefore doubtful whether
Tcoeib’s
case
supports the contention of Counsel. In regard to the former case
where the Court dealt with sec. 9(1) of the Aliens Act, Act No 1 of
1937, the section made reference to the State President which was
only amended by the Aliens Amendment Act of 1981 to read Minister.
(See sub.sec. (6)). This amendment was subsequent to the transfer of
Act 1 of 1937 which had occurred by Proc. AG 9 of 1978 and it was
therefore not applicable to Namibia. Reference to the President,
after Independence was therefore correct but the Court’s
argument based on Art. 140(5) instead of Art. 140(4) was incorrect. I
am satisfied that the clear meaning of Art. 140(5) is that only where
reference was made to the Administrator-General in enactments by his
Administration that that was meant as a reference to the President of
Namibia.







[62] I have therefore come to
the conclusion that reference to the Minister in sec. 4(3) of the
1965 Act means the corresponding Minister of Health and Social
Services in the Government of the Republic of Namibia and that the
said Minister did not act
ultra
vires
his
powers when he published the names of the members of the 1965 Council
in the
Official
Gazette.







[63] I further find that the
Court
a quo
should not
have declared all regulations, enacted in terms of sec. 44 of the
Medicines Act, to be null and void for the reasons set out in his
judgment on this point. In my opinion the 1965 Council was validly
appointed by the President of Namibia and that publication thereof by
the Minister of Health and Social Services did not act outside his
powers in terms of the Medicines Act when he published the names of
the 1965 Council in the Government Gazette.







[64] The Court a
quo further

found that the draft regulations, published in terms of the Medicines
Act, were also invalid because they were so published before the Act
became law. This finding was based on the provisions of sec 12(3) of
the Interpretation of Laws Proclamation, Proclamation No. 37 of 1920.
The Court
a
quo
found
that the draft regulations, which were published on 9 November 2004,
were prematurely published as the Act only became law when it was
promulgated on 25 July 2008. They were therefore published at a time
when the Act did not have the force of law. Mr Heathcote did,
correctly in my view, not support the findings by the learned Judge
a
quo
but
neither did he abandon them and I shall deal shortly with the
findings by the Court
a
quo.
Instead
counsel submitted that the Minister, when he published the
regulations, incorrectly referred to sec 44 of the Medicines Act as
the source for his power to draft and promulgate regulations. Counsel
submitted that he should have referred to the provisions of the
Interpretation Proclamation as his source. There is really no
substance in this submission. The regulations were not issued in
terms of the provisions of the Interpretation Proclamation nor did
those provisions empower the Minister to draft and promulgate
regulations.







[65] Mr Budlender submitted
that the Court

a quo
erred
in regard to its findings and that sec 12(3) was specifically
providing for a situation where certain action had to be taken before
the proclamation of a law but after it had already been passed.
Counsel submitted that this was clear from an interpretation of the
section as well as a matter of logic.







[66] Section 12(3) of Proc.
No. 37 of 1920 provides as follows:







(3) Where a law confers a power –








  1. to make any appointment; or



  2. to make, grant or issue any instrument,
    order, warrant, scheme, rules,




regulations or bye-laws; or




  1. to give notices; or



  2. to prescribe forms; or



  3. to do any other act or thing for the
    purposes of the law;








that power may, unless the contrary
intention appears, be exercised at any time after the passing of the
law so far as may be necessary for the purpose of bringing the law
into operation at the commencement thereof, subject to this
restriction that any instrument, order, warrant, scheme, rules,
regulations or bye-laws, made granted, or issued under the power
shall not, unless the contrary intention appears in the law or the
contrary is necessary for bringing the law into operation, come into
operation until the law comes into operation.”







[67] The Court a
quo
, with
reference to the definition of the word “law” in sec. 2
of the proclamation, concluded that the word “law” as
used in sec. 12(3) of the Proclamation, means and includes any law
“having the force of law.” However, as was pointed out
by Mr Budlender, the definition clause is subject to a qualification
and states in its introduction as follows:







The following expressions shall,
unless the context otherwise
requires
or unless in the case
of any law is otherwise provided therein, have the meanings hereby
respectively assigned to them……” (My emphasis.)







[68] Purely on the grammatical
meaning of the words used in sec. 12(3) it seems to me that the
“context otherwise requires” that the word “law”
does not bear its meaning as “having the force of law”
where that word was used in sec. 12(3) If the power conferred by the
sec 12(3) could only be exercised where a law has the force of law
then it seems to me that the whole section was unnecessary because
where such a power is conferred by a law, having the force of law,
nothing further is necessary to give effect thereto







[69] The equivalent of our sec
12(3) is to be found in sec 14 of the South African Interpretation
Act, Act 33 of 1957. In various cases, where sec. 14 of the South
African Interpretation Act was interpreted, the Courts found that the
steps taken by the particular legislator, before the enactment had
the force of law but was passed, was necessary in order to render the
legislation operative at its commencement. (See
inter
alia, R v Magana,
1961(2)
SA 654 (TPD);
S
v Manelis,
1965(1)
SA 748 (AD) and
Pharmaceutical
Manufacturers Association of SA and Another: In re Ex Parte President
of the Republic of South Africa and Others,

2000(2) SA 674 (CC).) Similarly it was necessary to publish the draft
regulations prior to the Medicines Act coming into operation. The
reason for this was that various institutions and persons were to
comment on the regulations and provide amendments or additions
thereto before publication of the regulations proper. In this
instance it was necessary that the Act and the regulations become
operative at the same time to avoid a situation where the Act was
operative but could not be implemented without its regulations.
Furthermore bodies created by the Act had to become immediately
operative on its promulgation in order to be able to deal with issues
such as the registration of medicine and drugs, medical practitioners
etc. This had to be achieved through the regulations. (See the
Pharmaceutical
Manufacturers, supra,
at
paragraph [66]). There is therefore no doubt in my mind that, in
order to render the Medicines Act operative, it was necessary to
publish the draft regulations prior to the coming into operation of
the Medicines Act and that the publishing thereof, after the Act had
already been passed, was valid in terms of the provisions of sec
12(3) of Proclamation 37 of 1920.







[70] There is yet a further
ground submitted by Mr Heathcote why the regulations promulgated in
terms of the Medicines Act should be declared null and void and that
is that there was not proper consultation between the Minister and
the Council, regarding these regulations, as required by sec. 44(1)
of the Medicines Act.







[71] In the founding affidavit
of Dr. Pretorius, the second respondent, he stated that he posed
written questions to some of the members of the Council. From the
answers received the deponent concluded that there never was any
consultation by the Minister with the 1965 Council and that
consequently a pre-condition required by the Medicines Act was not
complied with as a result of which the regulations promulgated were
ultra vires
the Medicines Act and therefore invalid.







[72] This was denied by the
Minister; minutes of the 1965 Council meetings were attached and
showed that this Council had on various occasions taken the
opportunity to discuss the draft regulations and also made proposals
to the Minister prior to the publication thereof. The Minister
further stated that he liaised with the Council through the third
appellant, the Registrar, and he was informed by the Registrar that
his predecessor did so as well. This was confirmed by the Registrar.







[73] In their replying
affidavits the respondents changed tack by stating that there was no
proper consultation because the Minister was not present in person to
consult with the Council. With reference to the case of
Administrator
Transvaal, and Others v Theletsane and Others,
1991(2)
SA 192 (AD) Mr Budlender submitted that it was not permissible for
the respondents to make out a different case in their replying
affidavits from that made out in their founding affidavits.







[74] In the Theletsane
case the applicants had sought an order that their dismissal from the
employ of the Administration had been unlawful because they had not
been afforded a hearing before their dismissal. In reply the
respondents were able to show that the applicants had indeed been
given a hearing. This was met by the applicants by stating in their
replying affidavits that the hearing had not been adequate. The Court
of Appeal found that the adequacy of the hearing was not a matter
which the respondents were called upon to answer and that they
consequently did not address the issue in their answering affidavits.
The applicants were therefore not permitted to rely on the
allegations which now, for the first time, appeared in their replying
affidavits.







[75] Likewise, in this
instance, the respondents alleged in their founding affidavit that no
consultation took place between the Minister and the 1965 Council.
This was denied by the Minister and various Minutes of meetings of
the Council wherein the regulations were discussed were attached to
the Minister’s affidavit and confirmed by the Registrar. That
caused the respondents to change their stance and they now alleged in
their replying affidavits, that the Minister did not himself consult
with the Council. That was not the case which the Minister was called
upon to answer and as a result the answering affidavit was not
directed at that issue. It would in my opinion be unfair to the
appellants to allow the respondents to change their case in their
replying affidavits. This is aptly illustrated by the complaint of Mr
Heathcote that although there are various instances where references
were made in the affidavits to discussions of the draft regulations
with various role players and institutions but nowhere was it stated
that this included the Minister. The answer to this is not far to
seek. The complaint concerning the Minister was only raised in the
respondent’s replying affidavit and he was not called upon to
answer it.







[76] I, however, agree with Mr
Budlender that consultation between the Minister and the 1965 Council
did take place before publication of the draft regulations. Section
44(1) of the Medicines Act mandates the Minister to publish draft
regulations “after consultation with the Council”. The
phrase “after consultation’ was interpreted to mean that
consultation must take place but the repository of the power need not
agree with those he was called upon to consult. In
Van
Rooyen and Others v The State and Others,
2001(4)
SA 396 (T) at 453 the following was stated in this regard:



The meaning of the phrases ‘in
consultation with’ and ‘after consultation with’
are now well established. ‘In consultation with’ requires
the concurrence of the other functionary (or person) and if a body of
persons, that concurrence must be expressed in accordance with its
own decision-making procedures. ‘After consultation with’
requires that the decision be taken in good faith after consulting
and giving serious consideration to the views of the other
functionary (or person). In the former case the person making the
decision cannot do so without the concurrence of the other
functionary (or person). In the latter case he or she can.”







[77] It was furthermore stated
in the case of
Hayes
v Minister of Housing, Planning and Administration Western Cape,
1999(4) SA
1229 (C) at 1242 H-J as follows:







In ordinary legal parlance, a
consultation would usually be understood as a meeting or conference
at which discussions take place, ideas are exchanged and advice or
guidance is sought or tendered. The parties or their representatives
could be physically present at such a meeting or conference, but not
necessarily so. In these times of advanced communication
technology, persons or parties can consult with one another in a
variety of ways, such as fax or e-mail or, in a somewhat less
sophisticated way,
by
correspondence.”







[78] I agree with what is
stated in these

cases. In
the present instance the Minister had the minutes of the meetings of
the Council as well as the input by the Registrar. What is required
of the Minister in these circumstances is to keep an open mind, act
bona fide
and to give serious consideration to the views of the Council. There
is no allegation that he did not do so. It must be pointed out that
the Court
a
quo
did not
find that there was no, or inadequate consultation. The Court found
that there was no consultation with the1965 Council because there was
no Council validly appointed to consult.



[79] In the result I am
satisfied that no grounds existed whereby the Court

a quo
could
declare all the regulations made by the Minister invalid and that
finding by the Court must be set aside.







The validity of regulation
34(a), (c), (d) and (e).



[80] This brings me to the
validity, or otherwise, of regulation 34(3)(a), (c), (d) and (e).
This regulation deals with the licensing of medical practitioners who
wish to dispense and compound medicine. Section 31(3) of the
Medicine’s Act provides that the Council may issue a medical
practitioner with a licence authorizing him or her to sell medicine
“if the Council is satisfied that granting such licence is in
the public need and interest”. The words “in the public
need and interest” were further defined as “the health
care needs and interests of the greater Namibian community in respect
of availability and equitable access to health care services”.







[81] Both counsel referred the
Court to the judgment of the Constitutional Court of South Africa in
the matter of
Affordable
Medicines Trust and Others v Minister of Health,
2006(3)
SA 247 (CC). This matter came before the Constitutional Court as an
application for leave to appeal against a judgment of the Pretoria
High Court dismissing a constitutional challenge by the applicants
against certain aspects of a licensing scheme whereby health care
providers, such as medical practitioners and dentists, were required
to be licensed in order to dispense and compound medicine. The
relevance of the case for the present matter is that the regulations
found to be invalid by the Constitutional Court are identical to our
regulation 34 which the respondents successfully challenged in the
Court
a quo.
As is the case in Namibia, those regulations were also published in
terms of the South African Medicines Act.



[82] The relevant parts of
regulation 34(3) provides as follows:







(3) In considering an application
referred to in sub-regulation (1) the Council must have regard to the
following –








  1. the existence of other health facilities
    licensed in terms of the Hospital and Health Facilities Act (Act
    No. 36 of 1994), or the Veterinary And Para-veterinary Profession,
    Proclamation, 1984 (Proclamation No. AG 14 of 1984) in the vicinity
    of the premises from where the acquisition, possession,
    prescription, use, sale or dispensing, as the case may be, of
    scheduled substances is intended to be carried out;





  2. The geographical area served by the
    applicant;



  3. The estimated number of health care users
    in the geographical area referred to in paragraph (c);



  4. Demographic considerations, including
    disease patterns and health status of the users to be served; and



  5. .”








[83] There is no doubt in my
mind that certain of the findings of the Constitutional Court in
regard to their regulation 18(5) (the equivalent to our regulation
34(3)) are also applicable to the present instance.







[84] In paragraphs [118] to
[122] the Constitutional Court dealt with the provisions of
regulation 18(5) and concluded that they reflected the National
Development Policy of the Government, i.e. to limit the rights of
medical practitioners to dispense medicines where there are
pharmacies in their vicinity, and the Court further found that the
purpose of these regulations were manifestly to protect pharmacies
against competition from medical practitioners. The Court concluded
that such change of policy was not discernible from the provisions of
their Medicines Act and found that those provisions (Regulation
18(5)) were
ultra
vires
the
empowering statute.







[85] Mr Heathcote submitted
that the appellants did not suggest that our reg. 34(3), with same
wording, would have a different meaning or purpose. Counsel submitted
that, on their own version, that is how these regulations should be
understood and he referred to various excerpts from the affidavit of
the Minister which supported his submission, namely, that it was
necessary for the Council -







(i) to establish the existence
of a pharmacy in the vicinity of the premises from where the sale or
dispensing of scheduled substances is intended to be carried out;







(ii) that it is not in the
public interest for patients to receive medicine from a medical
practitioner where there is a pharmacy in the vicinity;







(iii) that it is sound
practice for a different health professional to dispense medicine
from the one who prescribed it;







(iv) that pharmacists are
better qualified to dispense medicine than medical practitioners;,
and







(v) that when the prescriber
becomes the dispenser the rational use of medicine may be
compromised.







To this can be added the
further statement that dispensing of medicine by medical
practitioners may cause a pharmacy to face financial ruin.







[86] Mr Budlender submitted
that whether there was a pharmacy in the vicinity of a medical
practice was only one of the criteria to be considered by the Council
in deciding whether to grant a licence to a medical practitioner or
not and that those other criteria may overshadow the criteria of a
pharmacy in the vicinity.







[87] Although our own NDP does
not, unlike that of the Republic of South Africa, state emphatically
that medical practitioners shall not be granted the right to dispense
medicine in the vicinity of pharmacies; it required that persons,
other than pharmacists, would require a licence to dispense medicine.







[88] However, it seems to me
that regulation 34(3) speaks for itself. The criteria set out therein
are what the Council must consider before granting a licence to a
medical practitioner. One such criterion is that the Council must
establish, before granting a licence to a medical practitioner,
whether there is a pharmacy in the vicinity of the medical
practitioner’s practice. The provisions, similar to our
sub-regs. (c), (d) and (e), were found by the Constitutional Court to
form a discreet cluster which were designed to provide criteria for
implementing, what the Court called, a discarded policy. Far from
providing separate criteria to ameliorate the effect of reg.
34(3)(a), they serve to facilitate its implementation. I also agree
that if these criteria were to serve any other purpose they would not
have appeared in a regulation which contains factors intended to
influence a decision whether or not to grant a licence. (See para.
[114].) In considering whether to grant a licence or not the Council
is obliged to consider these criteria and cannot ignore them and once
it has found that there is a pharmacy in the vicinity of the practice
of an applicant medical practitioner it will have to give effect to
reg. 34(3)(a). If this were not the purpose of reg. 34(3) then it is
difficult to find any purpose why it was included in a regulation
where guidance is given to the Council whether to grant a licence or
not. This must further be seen against the background of the
Minister’s justification of Reg. 34(a), (c), (d) and (e) as was
pointed out by Mr Heathcote. A further pointer in this direction was
the action of the Registrar who refused applications for licences on
this very ground. I am mindful of the fact that it was not for the
Registrar to grant or not to grant licences but the way in which he
dealt with those applications is significant. After all as Executive
Officer of the Council his actions can be seen as a reflection of the
policy of the Council. Neither the Minister nor the Registrar himself
attempted to repudiate this action other than to agree that the
Registrar was not empowered to consider the applications.







[89] However, Mr Budlender
submitted that the situation in Namibia was different from that in
South Africa. Counsel based this submission on the existence of sec.
31(3) in the Medicines Act whereby the Council is empowered to issue
a licence to a medical practitioner when it was in the public need
and interest to grant such a licence. Council pointed out that no
such provision appears in the South African Act with the result that
the Minister was, in that instance, not empowered to make regulation
18(5), the equivalent of our reg. 34(3). Council was confident that
if a similar provision, like our sec. 31(3), was part of the South
African Act that regulation 18(5) would have passed muster and would
have been valid.







[90] I do not agree with
counsel. In my opinion the words “in the public need and
interest,’ as further amplified by its definition, do not
empower the Minister to protect pharmacists from competition with
medical practitioners. What is in the public need and interest may
differ from one instance to another. In cases such as
Clinical
Centre (Pty) Ltd v Holdgates Motor Co (Pty) Ltd,
1948(4)
SA 480 (WLD) and
Leicester
Properties (Pty) Ltd v Farran,
1976(1)
SA 492 (DCLD) mention was made, of the uncertain meaning of the
phrase and that the phrase “in the public interest” does
not always “permit of a clear and comprehensive definition”
as was stated in the
Leicester
Properties

case p 494H. At p 495A, of the same case, Miller, J, (as he then was)
said:







I respectfully agree with Herbstein,
J, that the Court must take ‘a broad commonsense view of the
position as a whole’ and that it must be considered whether
‘the public would be better served if the applicant were to be
allowed to proceed with its scheme, than by a continuation of the
existing state of affairs.’”







[91] In my opinion the words
“in the public interest” are not significantly changed by
adding the word “need”. Nor was this achieved by the
definition of the words “in the public need and interest”
in sec. 1 of the Medicines Act. In my opinion the meaning of the
words “in the public need and interest” must first be
determined in relation to the context in which it appears in a
statute because in that context it could be limited to a specific
section of the public or the public of a particular area or could
apply in general and secondly regard must be had to the subject
matter which, in terms of the statute, it relates to. This is
illustrated in instances where the subject matter may have a
debilitating effect on the public, such as intoxicating liquor. In
that instance the words “public interest” were
interpreted to have a limiting effect in order to protect the public
from the effects of liquor. (See,
inter
alia Simpson v Lewin,

1956(4) SA 486 (R) and
Riach
v Liqour Licencing Board Rhodesia,
1969(1)
SA 342.)







[92] It seems to me that it is
immediately clear that the public need and interest to receive
medicine is very much different from the public interest to have
access to intoxicating liquor. Where in the first instance a
restrictive interpretation was placed on the words “public
interest” the dispensing of medicine does not require such
restrictive interpretation. The purpose for the dispensing of
medicine is to heal or to bring relief to people who are ill or in
pain and in need of treatment for their illnesses. There exists no
need to limit access to medicine to pharmacists to the exclusion of
medical practitioners, and there is in my opinion also no reason why
people should not have a free choice whether to obtain their medicine
from a medical practitioner or a pharmacy. The general statements by
the Minister, referred to herein before, (see para. 89), is in my
opinion too unspecific and vague to allow for an interpretation which
would restrict dispensing of medicine to pharmacists in order to
protect them from competition by medical practitioners. Mr Budlender
submitted that pharmacists are better qualified to dispense medicine.
I accept that that is so but for that reason they can dispense and
compound all medicines contained in the various schedules of the
Medicines Act whereas medical practitioners can only dispense
medicine up to the 4th Schedule. Nothing was put before the Court
that they were not well qualified to do what they were permitted to
do for the past 40 years or more.







[93] The meaning of the words
“in the public need and interest” together with its
definition, set out in sec. 1 of the Medicines Act, does not allow
for an interpretation whereby a drastic change of policy was
introduced by the Minister through regulation 34(a)(c)(d) and (e).
This drastic change is not discernible from the provisions of the
Medicines Act and must be set aside.







[94] In the result I have come
to the conclusion that the Minister was not empowered by the
Medicines Act to introduce, by way of regulation, a drastic change of
policy and regulation 34(3)(a), (c), (d) and (e) must be declared
ultra vires
the powers
of the Minister. As was pointed out in the
Affordable
Medicines
-case,
supra, these
regulations form a cluster to facilitate the implementation of this
invalid policy. Their excision from the regulations will not hamper
the implementation of the other regulations regarding the application
for licences by medical practitioners to dispense medicine and will
allow medical practitioners to continue to so apply.







[95] Mr Budlender also
submitted that the review proceedings were not commenced within a
reasonable time and that the respondents should have attacked the
provisions of the Act and not the regulation. The short answer to
these submissions is that it was not discernible from the provisions
of the Act what the Minister intended to do. In my opinion this only
became clear when the Registrar refused applications based on the
regulations. There was therefore also no need to attack the
provisions of the Medicines Act because it was regulation 34(a), (c),
(d) and (e) which caused the problem and not the Act.







[96] The conclusion to which I
have come renders it unnecessary to consider the various
constitutional points raised by the respondents in connection with
regulation 34(3). (See in this regard
Kauesa
v Minister of Home Affairs and Others,
1995
NR 175 (SC); (1996(4) SA 965.)







The second appeal



[97] The second appeal
concerns the amendment to the 3
rd
order issued by the Court
a
quo.
In this
regard the Court suspended the operation of sec 46(3) of the
Medicines Act whereby a moratorium was granted, inter alia to medical
practitioners, to apply for licences to dispense medicine. The
operation of the section was suspended until new regulations were
promulgated afresh by the Minister. However it was realized that
those practitioners who did not avail themselves of the three months
period in the first place were now not able to dispense medicine
until the three months period again started to run when the new
regulations were promulgated. The respondents then applied for an
amended order which was granted and the effect of which was to allow
medical practitioners who did not avail themselves of the three
months period provided for in sec 46(3) to continue to dispense
medicine. Mr Budlender submitted that this order amounts to an
amendment of the Medicines Act which falls outside the powers of the
Court and the Court was consequently not competent to make such an
order. Mr Heathcote argued that in the light of the Constitutional
findings by the Court
a
quo
and
because the Court wanted to protect the rights of medical
practitioners during the transitional period when there were no
regulations, it had no option but to mould a right under Art. 25(2).







[98] I agree with Mr
Budlender. The constitutionality of sec. 46(3) of the Medicines Act
was not challenged by the respondents. Even if the purpose thereof
was to protect the rights of practitioners that opportunity was given
to them to regularize their position and to apply timeously for a
licence and, which, in the light of my finding above, they can
continue to do albeit without the protection of the moratorium.
What the Court’s order amounts to is to amend the provisions of
the Medicines Act to allow, notwithstanding that sec. 46(3) is
constitutional and not being challenged, practitioners to dispense
medicine contrary to the provisions of the Medicines Act.



[99] The purpose of sec 46(3)
is in my opinion clear. It affords medical practitioners, who were
not in terms of the 1965 Act required to be licenced to dispense
medicine, an opportunity to regularise their position by applying for
such licence and to allow them to continue to dispense medicine until
finalization of their applications, which included appeal procedure
in terms of the Medicines Act, provided that they so applied within
the period of three months laid down by the Act. This is a
transitional provision which was not intended to go beyond the three
months laid down and was a once-off provision which would have served
its purpose at the lapse of the three months period. It was never
intended to extend the period of three months nor did it afford any
medical practitioner a right to insist on further extension thereof.
It applied equally to all medical practitioners and there is no
complaint that the period of three months was too short or was not
properly publicized. It seems to me that this was an instance where
the first respondent, the body looking after the interests of the
medical profession, should have alerted its members to this very
important provision. If they had done so then
caedit
questio.
If
they have not then the Act is not to be blamed.







[100] The order of the Court a
quo
not only
suspended the application of sec 46(3) but amended the Medicines Act
to allow for an indeterminate period within which medical
practitioners could apply for licences after lapse of the three month
period provided for by the Act and still enjoy the protection of the
moratorium. In my opinion even the Minister did not have this power
and could only extend or suspend this period on the say so of
Parliament. I therefore agree that the Court
a
quo
was not
competent to make this order. The function of a Court is to interpret
the law and not to make it. None of the exceptions where a Court
could read words into a law or ignore certain words are applicable in
this instance because the purpose and effect of the section is clear
and there is no need to read in words or ignore words in order to
give it meaning. The literal meaning of the section also does not
lead to a glaring absurdity or gives rise to a meaning contrary to
what Parliament intended. (See in this regard
Engels
v Allied Chemical Manufacturers and Another,
1993(4)
SA 45 (Nm) and the cases cited therein.) It is the order of the Court
a quo
which is not reflecting the intention of Parliament as I have tried
to show herein before.







[101] In the result the second
appeal must succeed and the order by the Court
a
quo
must be
set aside.







Costs



[102] Concerning the costs of
these appeals I am of the opinion that the appellants were
substantially successful. They not only had to fend off various
objections, some serious and some not so serious, but they also
succeeded in re-instating the bulk of the regulations with the
exception of reg. 34(3) (a), (c), (d), and (e). The appellants were
also successful in their appeal against the order suspending and
extending the effect of sec 46(3) of the Medicines Act. However, as
far as the proceedings in the Court
a
quo
were
concerned the respondents had to come to Court to set aside the
abortive decisions taken by the third appellant and to declare
regulation 34(3)(a),(c),(d) and (e)
ultra
vires
the
powers of the Minister. Under the circumstances it seems to me fair
to order the appellants to pay half the costs of the respondents, in
that instance the applicants in the Court
a
quo.
I am
also satisfied that this was a case where it was competent to appoint
two instructed counsel to represent the parties.







[103] In the result the
following orders are made:







The main appeal




  1. The appeal succeeds to the
    extent set out hereunder, with costs including the costs occasioned
    by two instructed counsel and one instructing counsel.









  1. The order of the Court
    a quo
    is
    set aside and the following order is substituted therefore:








2.1 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 is hereby
declared unlawful and
ultra
vires
the
powers of the Minister in terms of sec. 44(2) of the said Act and it
is hereby set aside.







2.2 All the third respondents’
decisions on applications for licences made by medical practitioners
are hereby declared to have been unlawful and

ultra vires
and
not in compliance with sec. 31(3) as read with sec. 34 of the
Medicines Act 2003 and are hereby set aside.







2.3 The respondents are
ordered to pay half the costs of the applicants such costs to include
the costs occasioned by the appointment of two instructed counsel and
one instructing counsel.







2.4 All other relief claimed
by the applicants in their Notice of Motion is dismissed.







The second Appeal



The appeal succeeds with costs
such costs to include the costs occasioned by the appointment of two
instructed counsel, and one instructing counsel and the order of the
Court
a quo
is set aside
and the following order is substituted therefore, namely:







The application by the
applicants, as amended, is dismissed with costs such costs to include
the costs of two instructed and one instructing counsel.











____________________



STRYDOM AJA











I agree.











____________________



MAINGA JA







I agree.











____________________



LANGA AJA






































Counsel
on behalf of the appellants:



Mr
G Budlender SC



Assisted
by:



Mr
N Marcus



Instructed
by:



Government
Attorneys











Counsel
on behalf of the respondents:



Mr
R Heathcote



Assisted
by:



Ms
H Schneider



Instructed
by:



F.
Erasmus & Partners