E-drug: Constitutional Court scraps medicine act
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Constitutional Court scraps medicine act
February 25 2000 at 01:31PM
A Constitutional Court decision on Friday removed uncertainty about
the control of drugs - a decision that will affect druglords who have
tried to exploit loopholes created by an act promulgated last year.
The decision was also important as it proved that the Constitutional
Court could control public power.
The court upheld a decison by the full bench of the Transvaal High
Court to set aside a medical act promulgated by Nelson Mandela, the
former president, during his term of office last year.
The Transvaal High Court set aside Mandela's decison to bring the
South African Medicines and Medical Devices Regulatory Authority
(Sammdra) Act 1998 into force on April 30 last year.
Mandela and other applicants - including Nkosazana Dlamini-Zuma,
then the minister of health, and the Pharmaceutical Manufacturers
Association of SA - requested the High Court review.
They had realised that control over dangerous medicines would be lost
between the promulgation of the act and the announcement of the
new schedules. The result could be highly damaging to the public.
Passing judgment on Friday, Justice Arthur Chaskalson said: "The
applicants alleged that through an error made in good faith, the act
had been brought into operation before the necessary regulatory
infrastructure had been put in place.
"As a consequence the entire regulatory structure had been rendered
unworkable."
He said the act required "a comprehensive regulatory infrastructure,
including the determination of schedules regulating the manufacture,
sale and possession of substances controlled by the act".
The purpose of the act had been to govern the registration and control
of medicines for human and animal use, and to replace previous
legislation dealing with these matters.
According to Chaskalson, this case was important as it dealt with
issues related to the role of the courts in controlling public power.
The court had found it could control public power if that power had
been used in an arbitrary manner - as the court believed had been the
case in the promulgation of Sammdra.
Act 101 of 1965 was reinstated in its entireity.
The decision to set aside Mandela's promulgation is unprecedented in
the 120-year constitutional history of South Africa. - Sapa
Dr. Wilbert Bannenberg, public health consultant
Snailmail: P.O.Box 456, Irene 0062, South Africa
Email: WilbertBannenberg@compuserve.com (private),
bannew@hltrsa.pwv.gov.za (work)
Tel: +27-12-3120374/5 (work), +27-12-6672092 (home),
+27-82-5756249
(mobile/cell)
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