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Minister of Health v New Clicks: in re Application for Declaratory Relief

Minister of Health & another v New Clicks SA (Pty) Ltd & others: in re Application for Declaratory Relief[1][2] is an important case in South African law, with significance especially in the areas of civil procedure and constitutional law.

Minister of Health v New Clicks: in re Application for Declaratory Relief
CourtConstitutional Court
Full case nameMinister of Health & another v New Clicks SA (Pty) Ltd & others
Argued15 March 2005 (2005-03-15)
Decided30 September 2005 (2005-09-30)
Citation(s)[2006] JOL 17488 (CC)
Court membership
Judges sittingChaskalson CJ, Langa DCJ, Madala J, Mokgoro J, Moseneke J, Ngcobo J, O'Regan J, Sachs J, Skweyiya J, Van der Westhuizen J, Yacoob J
Case opinions
Decision byChaskalson CJ
Keywords
Constitutional Law, Direct access, Invalidity of regulations, Application to suspend, Decision of Supreme Court of Appeal, Better placed to decide suspension, Application dismissed

Facts edit

The Supreme Court of Appeal (SCA) had set aside regulations relating to a transparent pricing system for medicines and scheduled substances. The Minister of Health, Manto Tshabalala-Msimang sought leave to appeal against that decision to the Constitutional Court. As a result of the application, both parties published conflicting statements about its effect. Members of the Department of Health made various remarks in the media to the effect that the filing of the application for leave to appeal had the effect of suspending the order of the SCA. Furthermore, the regulations were valid; stakeholders were expected to comply with them. Representatives of the pharmaceutical industry, the respondents, retaliated with a press statement to the effect that the mere lodging of an application for leave to appeal does not suspend the order of the SCA.

As a result of the conflicting statements, the Minister launched this application for declaratory relief to the effect that the SCA order had been automatically suspended by the application for leave to appeal. Together with their answering affidavit the respondents lodged a conditional counter-application. The thrust of their opposition was that the question of declaratory relief was not incidental to the main relief sought (that is, leave to appeal), and that the application should properly be considered as direct access.

Judgment edit

The court held that the application was in substance an application for direct access. The court had stressed on more than one occasion that applications for direct access should be granted only in exceptional circumstances. In effect the Minister was asking for an order to suspend the declaration of invalidity. This is an order that should be made, as the Constitution contemplates in section 172(1)(b), by the court making the declaration of invalidity. In this case, the order could have been made by the SCA. It was best placed to determine what was just and equitable in the circumstances.

The application for direct access was therefore dismissed.

See also edit

References edit

  • Minister of Health & another v New Clicks SA (Pty) Ltd & others [2006] JOL 17488 (CC).

Notes edit

  1. ^ [2006] JOL 17488 (CC).
  2. ^ Case No. CCT 59/04.

minister, health, clicks, application, declaratory, relief, this, article, about, south, african, constitutional, court, case, declaratory, relief, south, african, constitutional, court, case, administrative, action, minister, health, clicks, this, article, ne. This article is about the South African Constitutional Court case on declaratory relief For the South African Constitutional Court case on administrative action see Minister of Health v New Clicks This article needs additional citations for verification Please help improve this article by adding citations to reliable sources Unsourced material may be challenged and removed Find sources Minister of Health v New Clicks in re Application for Declaratory Relief news newspapers books scholar JSTOR February 2021 Learn how and when to remove this template message Minister of Health amp another v New Clicks SA Pty Ltd amp others in re Application for Declaratory Relief 1 2 is an important case in South African law with significance especially in the areas of civil procedure and constitutional law Minister of Health v New Clicks in re Application for Declaratory ReliefCourtConstitutional CourtFull case nameMinister of Health amp another v New Clicks SA Pty Ltd amp othersArgued15 March 2005 2005 03 15 Decided30 September 2005 2005 09 30 Citation s 2006 JOL 17488 CC Court membershipJudges sittingChaskalson CJ Langa DCJ Madala J Mokgoro J Moseneke J Ngcobo J O Regan J Sachs J Skweyiya J Van der Westhuizen J Yacoob JCase opinionsDecision byChaskalson CJKeywordsConstitutional Law Direct access Invalidity of regulations Application to suspend Decision of Supreme Court of Appeal Better placed to decide suspension Application dismissed Contents 1 Facts 2 Judgment 3 See also 4 References 5 NotesFacts editThe Supreme Court of Appeal SCA had set aside regulations relating to a transparent pricing system for medicines and scheduled substances The Minister of Health Manto Tshabalala Msimang sought leave to appeal against that decision to the Constitutional Court As a result of the application both parties published conflicting statements about its effect Members of the Department of Health made various remarks in the media to the effect that the filing of the application for leave to appeal had the effect of suspending the order of the SCA Furthermore the regulations were valid stakeholders were expected to comply with them Representatives of the pharmaceutical industry the respondents retaliated with a press statement to the effect that the mere lodging of an application for leave to appeal does not suspend the order of the SCA As a result of the conflicting statements the Minister launched this application for declaratory relief to the effect that the SCA order had been automatically suspended by the application for leave to appeal Together with their answering affidavit the respondents lodged a conditional counter application The thrust of their opposition was that the question of declaratory relief was not incidental to the main relief sought that is leave to appeal and that the application should properly be considered as direct access Judgment editThe court held that the application was in substance an application for direct access The court had stressed on more than one occasion that applications for direct access should be granted only in exceptional circumstances In effect the Minister was asking for an order to suspend the declaration of invalidity This is an order that should be made as the Constitution contemplates in section 172 1 b by the court making the declaration of invalidity In this case the order could have been made by the SCA It was best placed to determine what was just and equitable in the circumstances The application for direct access was therefore dismissed See also editSouth African civil procedure South African constitutional lawReferences editMinister of Health amp another v New Clicks SA Pty Ltd amp others 2006 JOL 17488 CC Notes edit 2006 JOL 17488 CC Case No CCT 59 04 Retrieved from https en wikipedia org w index php title Minister of Health v New Clicks in re Application for Declaratory Relief amp oldid 1165644497, wikipedia, wiki, book, books, library,

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