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IN THE HIGH COURT OF NAMIBIA CASE NO: A 199/09

In the matter between:

THE MEDICAL ASSOCIATION OF NAMIBIA LIMITED DR PC PRETORIUS

FIRST APPLICANT SECOND APPLICANT

and

THE MINSTER OF HEALTH AND SOCIAL SERVICES MEDICINES REGULATORY COUNCIL THE REGISTRAR OF MEDICINES THE MEDICAL BOARD OF NAMIBIA THE ATTORNEY GENERAL THE PHARMACY COUNCIL OF NAMIBIA

FIRST RESPONDENT SECOND RESPONDENT THIRD RESPONDENT FOURTH RESPONDENT FIFTH RESPONDENT SIXTH RESPONDENT

CORAM: GEIER, AJ

Heard: 5 August 2010

Delivered: 8 September 2010

___________________________________________________________________

JUDGMENT:

GEIER, AJ.: [1] This matter is a sequel to a review application brought by the applicants herein as a result of which the Court set aside the regulations promulgated in terms of the Medicines and Related Substance Control Act, Act No. 13 of 2003 as published on 25 July 2008 in toto.

[2] The Court also granted a number of further orders, one which has now become the subject matter of this application brought in terms of Rule 44 (1) (b) of the Rules of High Court and in terms of which the Applicants now seek a variation of a part of that order as originally granted.

[3] This application also has a second component, namely the Applicant’s also seek to have the varied part of the order not suspended through the noting of an appeal, which the respondents have lodged in the interim against the whole judgment of this Court as granted on the 28^th of June 2010.

[4] The Respondents have opposed this application on the merits and have also raised certain in limine objections.

THE PROCEDURE EMPLOYED

[5] The present application was initially brought as an urgent application in terms of the provisions of Rule 6 (12) of the Rules of High Court. In the main body of the founding papers the applicant then addressed the aspect of urgency as well as the requirement of ‘no substantial redress at the hearing in due course’.

[6] The Respondents in turn took the ‘standard’ point that the application was not urgent and was liable to be dismissed on that ground alone.

[7] At the hearing of this matter the Court raised with the parties the question that there was authority for the view that the applications in terms of Rules 49 (11) and Rule 44 (1) (b) were interlocutory in nature and accordingly were not governed by Rule 6(12).

[8] Counsel for both parties accepted that the present application was indeed interlocutory in nature, that such applications where therefore essentially governed by the provisions of Rule 6 (11) of the Rules of High Court and that the matter for that reason alone also served properly before the Court.

[9] The legal practitioner of the Respondents thereupon also abandoned the in limine objection pertaining to urgency.

[10] In this regard the learned authors of ‘Erasmus - Superior Court Practice’ in their commentary on Rule 49 (11) appearing at page B1-370A - Revision Service 35, 2010 - state:

“An application in terms of this sub-rule, in so far as it may be urgent, is not hit by sub-rule 6 (12). It is an interlocutory application and one, which under sub-rule 6 (11), may be brought on notice supported by such affidavits as the case may require and set down at a time assigned by the Registrar or as directed by a judge.”

[11] In the footnote 2 reference is made to the case of Airy v Cross-Border Road Transport Agency 2001, (1) SA 737 (T) at 741 F-H were Tuchten AJ stated:

“It was argued on behalf of the respondents that I should decline to hear the Rule 49 (11) application as, it was submitted, the matter is not urgent as contemplated by Rule 6 (12). I do not think that the Rule 49 (11) application is hit by Rule 6 (12). It is an interlocutory application and thus one which under Rule 6 (11) ‘may be brought on notice supported by such affidavits as the case may require and set down at a time assigned by the Registrar or as directed by a Judge.’ In any event the matter is urgent because the applicants are suffering the prejudice I shall describe when I deal with the merits of the application.”

[12] While I agree that an application brought in terms of Rule 49 (11) is interlocutory in nature, after all it has all the attributes of an interlocutory application, ie. it relates to a matter incidental to the main dispute, makes an interim arrangement in regard to the subject of the main dispute despite the fact that the main dispute has still to be canvassed again before an appeal tribunal and is thus an aspect of, and has a connection with the main application¹, I cannot agree that a ‘Rule 6(11) application’ can never be ‘hit by the provisions of Rule 6(12)’ as it is not inconceivable that there will never be instances were an interlocutory application will not have to be brought on an urgent basis.

[13] In Namibia regard must also be had to High Court Practice Direction 26 (1) as issued by the Judge President on 2 March 2009, which provides:

“(1) Except where the Rules of Court otherwise provide, there shall be not less than five days between the date of service, or delivery of notice, of an interlocutory application and the date of set down.

(2) (a) An opposed interlocutory application, ... is (are) heard by the duty Judge at 10h00 on Tuesday: ... ”

2. …

(3) (a) Where any of the applications referred to in subparagraph (2), other than an urgent application, becomes opposed, the duty Judge presiding in the Motion Court must let such matter stand down to the end of the Motion Court roll …”

(b) … (c) …

(d) “Notwithstanding anything to the contrary contained in subparagraphs (a) and (b), the duty Judge may, in his or her discretion, hear the application on any other court day.”

[14] It appears firstly that Rule 6 (11), which essentially governs interlocutory applications, is silent on how many days notice there have to be between the date of service and the date of set down.

[15] That rule is also silent what day the Registrar should assign, in the normal course, for the set down of an interlocutory application.

[16] Accordingly it is only Practice Direction 26(1), which directs a litigant to bring an interlocutory application on not less than 5 days notice, (except were the rules otherwise provide).

[17] By that same token the Registrar is directed to assign a date of set down similarly on not less that 5 days notice. Should such interlocutory application then become opposed, it will be set down for hearing by the duty judge on a Tuesday.

[18] Practice Direction 26(3)(d) however allows the duty judge “notwithstanding anything to the contrary contained in subparagraphs (a) and (b), in his or her discretion, to hear the application on any other court day.”

[19] Reference to the referred to subparagraph (a) however shows that subparagraphs (a) and (b), and therefore the entire subparagraph 26(3), relate to interlocutory applications ‘other that urgent applications’. This interpretation is underscored by the further cross-reference to paragraph 26(2) contained in sub-paragraph 26(3)(a), and which refers in turn to such ‘opposed interlocutory applications’.

[20] Surely, in such circumstances, a litigant, who is required to bring an urgent interlocutory application, can only bring such urgent interlocutory application with regard to the provisions of Rule 6(12), even if the requirements of Rule 6(12), in the normal course, relate to applications brought in terms of Rule 6(5).²

[21] As in such circumstances ‘the rules would otherwise provide’, the founding papers to such application would then need to address the requirements set by Rule 6(12) and also the need to depart from the ordinary requirements set by Practice Directive 26, which in turn would enable the Registrar to assign an immediate date for the hearing of such matter and the Court would be able to assess, not only whether or not the requirements of Rule 6(12) have been met, warranting the departure from the rules and service provided for in the Rules of Court, but also the departure from the requirements set in the ordinary course by Practice Directive 26.

[22] I can see no reason why in such instances an applicant, bringing an urgent interlocutory application, should not address the requirements of Rule 6 (12), and whether in such circumstances, were the Court in any event is given a wide reign and has the power to depart from the rules, forms and service, such wide reign can never include also a departure from the requirements set by Rule 6(11) and the applicable Practice Directives.

[23] Accordingly and when the applicants herein brought this interlocutory application in terms of Rule 6(12), in which they had addressed the requirements of Rule 6(12)(b), seeking ‘condonation for the applicants’ non-compliance with the Rules of Court’, and even more so after the required ‘five- days- notice’ requirement had been met, due to the postponement of this matter from 2 August to 5 August 2010, the application having been served on Respondent’s on 27 July 2010 already, and after a full exchange of affidavits, this matter always served properly before the Court.

THE FIRST IN LIMINE POINT : THE APPLICANT’S LACK OF AUTHORITY

[24] From the answering affidavits filed of record it appeared that the respondents had simply not admitted that second applicant was authorised to bring the application on behalf of first applicant.

[25] Although applicants in their replying papers had already expressly pointed out, and correctly so, that the respondents denial of the second applicants authority was not effective in the premises, as the further application which applicants had now brought was interlocutory in nature and accordingly was merely incidental to the main application where the respondents had not deemed it fit to challenge the second applicant’s authority to bring the main application for review also on behalf of the first applicant, the legal practitioner of the respondents’ nevertheless persisted with this point.

[26] It must be said however that the Respondents had denied this authority on the papers filed of record in the main application, but this point was not pursued during argument then.

[27] In the course of argument now before this Court also no reference was made on behalf of respondents, to a ‘round robin’ resolution of the Board of Directors of the first applicant, taken on the 5^th of June 2009, and which had been filed of record as part of the main application.

[28] It appeared from the terms of such resolution that the second applicant was not only expressly authorised:

“ … to sign all the necessary documents to bring the (main) application on behalf of the Medical Association of Namibia Ltd and to instruct attorneys Francois Erasmus and Partners to represent the Medical Association of Namibia Ltd in the High Court of Namibia,

but also and furthermore, should it become necessary,

to take all steps necessary to lodge and prosecute an Appeal to the Supreme Court of Namibia and to do all things necessary to bring the said application to its final end and determination.”

[29] A similar objection was recently dealt with by the Supreme Court where it was stated:

“[35] A further point raised by Dr. Henning was the authority, or lack of authority, of the first respondent to act on behalf of the second respondent. This is firstly based on the allegation by the first respondent that he was ‘duly authorised to depose to this affidavit, also on behalf of my wife’. Counsel referred to the South African case of Marvanic Development (Pty) Ltd and Another v Minister of Safety and Security and Another 2007 (3) SA 615 (SCA) where the court found that it was not proven nor alleged that the deponent to the affidavit was authorised to act on behalf of either appellants. See also Ganes and Another v Telecom Namibia Ltd 2004 (3) SA 615 (SCA) ([2004] 2 All SA 609) where the majority of the court concluded that authority to depose was meaningless and what should have been alleged was authority to institute the action and to prosecute it. See also Duntrust Pty Ltd v Sedlacek t/a GM Refrigeration 2005 NR 147 (HC)”³

…

[30] From the applicants founding and replying papers filed of record in this case it appears immediately that the second applicant therein did allege that he has ‘been duly authorised to bring this (the interlocutory) application’ not only in his personal capacity but also on behalf of the first applicant. The requirement pertaining to the necessary allegations, as set by the abovementioned case law, was therefore met.

[31] These allegations must however still be tested against the referred to resolution in terms of which second applicant was only expressly authorised “ … to sign all the necessary documents to bring the (main) application on behalf of the Medical Association of Namibia Ltd … “ and “ … to take all steps necessary to lodge and prosecute an Appeal ... and “ … and to do all things necessary to bring the said (main) application to its final end and determination …”.

[32] One will therefore also have to consider the ambit of the power conferred by this resolution in order to determine whether or not same only authorised the second applicant to bring the main application and to only take all steps necessary to lodge and prosecute an Appeal or whether such resolution also authorised the bringing of this interlocutory application.

[33] The answer of this question lies in the in conferment of the general additional powers as granted by the resolution in question in terms of which the second applicant was also empowered “ … to do all things necessary to bring the said application to its final end and determination. “

[34] The application referred to in the resolution is obviously the ‘main’ application for review brought by applicants and accordingly it will now have to be determined more particularly whether or not such general powers, “ … to do all things necessary to bring the said (main) application to its final end and determination … “, also authorised the bringing of this interlocutory application.

[35] In this regard it is instructive to have regard to what has been stated in respect of the general powers conferred by way of Power of Attorney.

[36] In this regard it has been held:

"The power to sue or defend, (and by that same token a power to note
an appeal), must either be expressly conferred or be necessarily incidental to the agent's mandate in the sense that resort to legal proceedings (or to an appeal) is a necessary and usual means of executing it with effect.”

“If a power confers certain specific authority in connection with an
action (here in connection with an appeal) and, as is often the case, concludes with the general words, such as 'and generally for effecting the purpose aforesaid to do or cause to be done whatsoever shall be requisite', such general words must be read, not as extending the specific authority granted by the power, but as limiting the authority to matters falling within or incidental to the authority as set out in the power.”⁴

[37] If one then also takes into account that the application by the applicants herein is both brought in terms of Rules 44 (1) (b) and 49 (11) of the Rules of Court, and that such application is therefore interlocutory in nature, it must be concluded, given the nature of interlocutory proceedings, that this (interlocutory) application is clearly incidental to the (main) review application, which (interlocutory) application was launched during the progress of such litigation, which proceedings (the main application for review) are still pending an appeal, which has in the interim been noted.

[38] If one then restrictively interprets⁵ the general power conferred on second applicant in terms of the resolution passed by the first applicant’s board of directors on 5 June 2009, and if one reads such general words, not as extending the specific authority granted by the power, but as limiting the authority to matters falling within or being incidental to the main authority as set out in the power, it must be concluded that the bringing of this interlocutory application fell squarely within the purview of - and was sufficiently incidental to the bringing of the main application for review, and were second applicant had expressly been authorised“ … to do all things necessary to bring the said main application to its final end and determination … “, which was such a matter.

[39] The first in limine point can accordingly not succeed.

THE DEFENCE OF “UNCLEAN HANDS”

[40] This defence was originally not pertinently raised on the papers and seems to have been an afterthought particularly if one has regard to the express grounds on which the respondents were seeking to oppose this application and which were listed in paragraph 4 of the answering affidavits as being :

1. The application is not urgent and stands to be dismissed on this ground alone;

2. The order in paragraph 125(f) of the judgment is not ambiguous and no variation is required;

3. This Court cannot suspend a time period that has already passed;

4. In any event the order proposed by applicants is fraught with difficulties and should not be granted.

[41] It is therefore not surprising that the high- watermark of all the allegations made in the answering affidavits possibly relevant to this defence are contained in paragraph 39 of the answering affidavit were first respondent states :

“ … What is alarming is the fact that first applicant’s members readily violate the Medicines Act, if we are to understand their “continued enjoyment of vested rights” to be an indication that they have not stopped dispensing as they were required to do by law.”

[42] On the basis of a supposition, a hypothesis, and a possible understanding (of which there were possibly obviously more than one) therefore and by now brazenly implicating all the first applicants’ members indiscriminately across the board without naming a single perpetrator engaged in such criminal activity, or without supplying any shred of evidence of any single act of criminal conduct on the part of any one of first applicants members, the legal practitioner, acting on behalf of the respondents, at the hearing of this matter, and without notice therefore, and by way of heads of argument, which were handed up to the Court at the time, now “in limine … submitted that the application (is) was not urgent and Applicants should not be heard until they have purged their criminal conduct.”

Under the heading “Applicants are breaking the law” it was then submitted in these heads that:

“Medical practitioners who failed to apply in time for a licence did not stop dispensing scheduled medicines, as of from 24 October 2008 have been committing a serious offence. Section 29 provides that a person who is dispensing scheduled medicines can only do so in terms of a licence. Since medical practitioners, who failed to apply within 3 months of the commencement of the Medicines Act for a license, do not enjoy the cover provided by Section 46 (4) they had to stop dispensing.”

Applicants cannot use the fact that they have been breaking the law and are faced with criminal prosecution as a ground to justify urgency. In fact this case should be dismissed on the basis that Applicants do not approach this Court with ‘clean hands’. This Court should refuse Applicants until they comply with Section 29 of the Medicines Act.”

[43] These submission are then based in turn on the allegations contained in the founding papers in where the applicants allege:

‘The Applicants have tried their level best to reach a compromise agreement with the legal representatives of the Respondents. They have failed, and from the letter received from the Government Attorney it is clear that the latter will proceed with criminal charges against those medical practitioners who continue to dispense schedule medicine, regardless the fact that they are merely thereby exercising their constitutional rights, which the Honourable Court stated in no uncertain terms, they are entitled to do.’”

[44] Respondents further relied on the Associated Newspapers of Zimbabwe (Pvt) Ltd vs Minister for Information and Publicity in the President’s Office and Others, a Zimbabwean Supreme Court decision where it was stated that:

“Thus the principle that a citizen who disputes the validity of a law must obey it first and argue afterwards is founded on sound authority and practical common sense. The applicant’s contention that it is not bound by a law it considers unconstitutional is simply untenable. A situation where citizens are bound by only those laws they consider constitutional is simply untenable. A situation where citizens are bound by only those laws they consider constitutional is a recipe for chaos and a total breakdown of the rule of law.” ⁶

[45] If one has regard to the Associated Newspapers of Zimbabwe (Pvt) Ltd case it appears that in that case the applicants there had admitted their refusal to obey the law to which they were openly consciensciously objecting⁷

[46] This is clearly not so in this instance and accordingly the Associated Newspapers of Zimbabwe (Pvt) Ltd case is distinguishable on the facts and cannot be of assistance to the respondents. In any event that case would, at the most, have constituted persuasive authority.

[47] This Court is on the other hand obviously bound to follow the leading Namibian Supreme Court authority on this point which the legal representative of the respondents importantly failed to consider and rely on, or refer the Court to, despite being under an obligation to do so in terms of Practice Directives of this Court.⁸

[48] The doctrine of ‘unclean hands’ had just recently been considered by the Namibian Supreme Court, (case SA 18/2009) in a judgement delivered on 15 July 2010, in the as yet unreported matter of the Minister of Mines and Energy and Another v Black Range Mining (Pty) Ltd⁹ where Strydom AJA set out the position as follows:

“[46] All counsel were in agreement that the doctrine (of’ unclean hands’) would apply in circumstances where there was some or other dishonesty on the part of the person who claimed protection for his rights. They were also in agreement that primarily the doctrine found its application in the field of unlawful competition¹⁰ where an applicant sought to interdict a competitor for unlawful conduct in circumstances where the applicant himself was trading dishonestly and nevertheless sought protection from the Court which would then allow him to continue his dishonest trading. (See in this regard Tullen industries v de Sousa Costa (Pty) Ltd & Others, 1976 (4) SA 218 (TPD) at 221 E-H and Mqoqi v City of Cape Town & Another, 2006 (4) SA 355 (CPD) at para [140].)¹¹

[50] Although the remarks made by v.d. Heever.J, in the Schuster case¹², supra, was in connection with the enforcement of a contractual right and the present case deals with the protection of a right, the principle applied is the same, namely, that a Court does not deny a person access thereto in respect of the enforcement of his rights, or the protection thereof, if not contaminated by some or other act of dishonesty or other impediment as referred to by v.d. Heever, J. To do otherwlse will run counter to the principle that the Court will not close its doors to a litigant except In exceptional circumstances such as was, inter alia, mentioned by the learned Judge. To do so in unjustifiable circumstances will also run counter to Art. 12 of our Constitution where that that right is guaranteed.”

[49] If one then has regard to the sole passage relied upon by the respondents it appears that it does not disclose nor prove any dishonest or mala fide conduct.

[50] It appears further that the applicants properly seek the protection of their constitutional rights through the mechanisms provided for by law and although, in the relied upon passage, the applicants try to explain their predicament should first applicants members continue to dispense schedule medicines pending the outcome of the appeal, this is a far cry from actually being found to be ‘trading dishonestly’ (of which there is no proof in neither the main application nor in this one) and in spite of which the applicants nevertheless seek the protection from the Court which would allow them to continue in their ‘dishonest trading’.

[51] In this regard it continues to be of relevance that certain medical practitioners of Namibia, who had been authorised to compound or dispense and sell medicine without a licence, prior to the coming into operation of the Medicines Act 2003, were lawfully practising their profession in such manner before the commencement of the Medicines Act 2003. Taking cogniscance of these vested rights the legislature had deemed it fit to enact section 46 of the Medicines Act 2003 Act, (containing the three- month transitional period), in order to protect such vested rights and to give an opportunity to those medical practitioners, who had been compounding, dispensing and selling medicines prior to the commencement of the new act, (which vested rights had now been limited by the new dispensation of the Medicines Act 2003), to follow a fair procedure when applying for the requisite licences in the exercise of the now limited rights. In such manner a mechanism had now been provided for in the act to ensure that such medical practitioners could continue to practise their profession as envisaged in Article 21(1){j} of the Constitution of the Republic of Namibia.

[52] The enforcement of such rights, pending the outcome of an appeal, particularly were the regulatory infrastructure for the making of such applications and for the related appeal structure had been set aside, and which now formed the subject matter of an appeal itself, with the possibility that the decision of the court a quo be confirmed, bringing with it the additional uncertainty of how long it will take to put new regulations in place, surely does not amount, by any stretch of the imagination, to an attempt, to seek from the Court protection to enable Namibia’s medical practitioners to practise ‘dishonestly’.

[53] Neither can it be said that there is any impediment, or that there are any exceptional circumstances, which would entitle the Court to close its doors to the applicants. To do so in the circumstances of this matter and in the absence of any concrete proof of wrongdoing would obviously also ‘run counter to Article 12 of our Constitution where these rights of the applicants are guaranteed’.

[54] As I am unable to conclude in these circumstances that the enforcement of the rights, which the Applicants seek to protect herein, are contaminated in any way or manner by dishonesty, fraud, or male fide’s this defence falls to be rejected.

THE APPLICATION IN TERMS OF RULE 44 (1) (b)

[55] In support of this part of the application the Applicants stated the following:

“16. Prior to the purported implementation of the regulations purportedly made in terms of section 44 of the Medicines and Related Substances Control act, No 13 of 2003 (hereinafter “the 2003 Act”), all medical practitioners in Namibia were entitled to dispense medicine as part and parcel of their practices as medical practitioners. In terms of section 29 of the 2003 Act, medical practitioners may not dispense scheduled medicines without a licence being granted to them as envisaged in section 31(3) of the Act.

17. The 2003 Act, in section 46 thereof, makes provision for a transition period during which medical practitioners could apply for dispensing licences.

18. The Honourable Court agreed with the submission of the applicants that the object of section 46 of the 2003 Act is to protect the vested rights of those medical practitioners who had in the past dispensed and sold medicines to

“...give an opportunity to those medical practitioners, with vested rights (which vested rights had now been limited by the new dispensation of the Medicines Act 2003, to follow a fair procedure when applying for the requisite licences in the exercise of the now limited rights, the mechanism that had now been provided for in the act to ensure that such medical practitioners can continue to practice their profession as envisaged in Article 21(1)(j) of the Constitution of the Republic of Namibia.”

[See para 121 of the judgment]

19. That the vested constitutional rights of medical practitioners have been infringed by the new dispensation under the 2003 Act, was also found by this Honourable Court in para 119 of its judgment, where it is stated –

“It is also clear from the above that I have concluded that certain constitutional rights of the Applicants have been denied or were violated.”

20. From the above paragraph and from the judgment read as a whole, it is submitted that it was the intention of the Honourable Court to project the members of the first applicant’s vested constitutional rights and to make an order which ‘is necessary and appropriate to ensure the applicants the enjoyment of the rights and freedoms conferred on them under the provisions of the Constitution.

21. The Honourable Court also found that –

“... the extension of the section 46(3) three month transitional period is necessary and appropriate in the circumstances of this matter, to ensure to the applicants the enjoyment of the abovementioned rights and freedoms conferred on them under the provisions of this Constitution.”

22. If one reads this clause together with order number (f), it is clear that the learned judge intended that the three months transitional period referred to in section 46(3) of the 2003 Act, will not commence to run until such time as the second respondent has been properly convened and the first respondent has promulgated regulations after consultation with the second respondent.

23. However, order number (f) appears to be ambiguous, in that it can also mean that it is not only the 3 months period referred to in section 46(3) which is suspended, but in fact the entire section 46(3).”

[56] On the strength of these excerpts quoted from the underlying judgment it was submitted further that it was throughout the true intention of the Court to protect the vested constitutional rights of the members of the first applicant, which should also be reflected in the varied order (f).

[57] It was also submitted that the intention of the Court, as expressed in its judgement, was to allow medical practitioners to continue to practise their profession (as envisaged in the Constitution), until such time that new regulations have been caused to come into operation, such continuation to be on the same basis and in the same manner as prior to the purported implementation of the regulations, which were declared null and void by the Court. That basis and the manner of their practices included the dispensing, scheduling and selling of medicine without a licence.

[58] It was also pointed out on behalf of applicants that the judgment that was handed down by the Court in the main application was now the subject of an appeal, which remained pending, that the noting of such appeal had suspended the execution/operation of the orders made by the Court in the main application, which also included the order which has now become the subject matter of the applied for variation and which presently still reads as follows:

“ f) The operation of the three months transitional period mentioned in Section 46 (3) of the Medicines Act is hereby suspended until such time that the First Respondent has caused new regulations to be made in terms of Section 44 of the Medicines Act, 2003.”

and that the effect thereof in the premises is quite obvious as a number of medical practitioners who are members of the first applicant failed to apply to the second respondent for a dispensing licence within the original three month period (which expired at the end of October 2008). Those medical practitioners now find themselves in the exact same position in which they were prior to the launching of this application. This means that, pending the outcome and finalisation of the appeal proceedings, they are not allowed to ‘continue to practise their professions as envisaged in Article 21(1)(j) of the Constitution. ’It was submitted further that this was anomalous to the obvious and true intention of Court, which stated clearly in its judgment that it intended to make an appropriated order to ensure the applicants the continuous enjoyment of their vested Constitutional rights.

[59] The gravamen of the argument ran thus :

“4. If the court’s judgment is read as a whole, it is abundantly clear that the Honourable Justice Geier expressed himself in no uncertain terms in his well-reasoned judgment on the following issues which arose in the main application –

4.1 That the members of the first applicant (which includes the second Applicant) have certain vested Constitutional rights, more specifically those conferred in terms of article 21(l)(j);

4.2 That it was the intention of the legislator and the 2003 Act itself to afford the applicants protection of their vested rights, in that Section 46(3) makes provision for a so-called transitional period in which the applicants are entitled to continue exercising their vested rights as before, provided they make application in terms of duly promulgated regulations;

4.3 Because there are no duly promulgated regulations, the scheme of Section 46(3) of the 2003 Act has failed;

4.4 Therefore the Court was entitled to make any order which is necessary and appropriate to protect vested rights until such time that regulations are duly promulgated;

4.5 The court accordingly, reasoned and intended that a necessary and appropriate order was the extension of the section 46(3) three month transitional period in order to ensure the applicant’s the enjoyment of the rights and freedoms conferred to them by the Constitution until such time that they are able to, in terms of lawful and constitutionally sound regulations, apply for dispensing licences.

5. Unfortunately, by suspending the whole of the provisions of section 46(3) of the 2003 Act, an opposite result may have been reached, i.e. that vested rights are not protected. Hence this application.”

[60] The main argument of the Respondents on the other hand was as follows:

“The aim of the application was to seek an order that would allow members of first applicant, who failed to apply in time, to take up dispensing again from the date of the Court order, if successful, for a period of three months, before applying for a licence. Another objective was to have all license applications of first applicant’s members considered, without the alleged ‘unconstitutional criteria contained In the Regulations.

After hearing arguments on 17 May 2010 this Court set aside the Regulations and the decision of third respondent. Importantly for the instant application, the Court also suspended the operation of s 46(3) of the Medicines Act 2003 until such time that first respondent causes new Regulations to be made in terms of s 44 of the Medicines Act. The Court further ordered the three month in s 46(3) to run afresh, from the date that first respondent causes new Regulations to come into operation.

The Court in its judgment observed that a ‘regulatory lacuna’ had ensued, as a result of the setting aside of the Regulations. This meant that no applications for a license and no appeals with regard thereto could be considered. The Court was faced with the question whether the period set out in s 46 could commence to run from date of judgment as requested by applicants. In answering this question the Court posed the following question: Could it use its “constitutional powers” in order to allow medical practitioners, who previously dispensed and sold medicines the interim protection of s 46(3) to continue dispensing, provided that they apply for the required licenses within a period of three months, from the date of the coming into operation or the new Regulations?

The Court considered whether to grant the relief sought by applicants and concluded: “As it is unknown how long it will take to comply with the provisions of sections 44(1) and (2) of the Medicines Act 2003 in this regard it will also not make sense to grant the order, as sought, declaring that the three month transitional period shall commence to run from the date of this court’s order.” The Court however observed that, the extension of the ‘section 46(3) three month transitional period’ is however necessary in order to ensure applicants’ enjoyment of the rights and freedoms conferred by the Constitution.

The remedy fashioned by the Court was to freeze, as it were, the provisions of section 46(3) and to put it into operation again upon the coming into operation of the new Regulations. The three months would again start to run from the date that new Regulations come into operation. The orders made by the Court would, in its view, ensure that:

1. Medical practitioners with vested rights would, once again be able to dispense without a license for a protective period of three months and;

2. Medical practitioners would be able to lodge the necessary applications for a license once the new Regulations come into force;

3. Medical practitioners who on account of the expiry of the three month period were obliged to stop dispensing, would still be legally prohibited from dispensing, until such time that the three months period recommences to run again when the new Regulations are passed

I submit that the orders made by the Court on 28 June 2010 clearly express these intentions and there is no ambiguity, as suggested by applicants. The interpretation that we have given of the Court’s judgment and order is the only reasonable one as it ensures that other provisions of the Act, such as s 46(4); s 29 and s 31 are not violated. The interpretation given to the ‘varied order’ proposed by applicants would result in an infringement on those sections, without them having been set aside.”

[61] These submissions will have to be decided against the principles held to be applicable to the interpretation of judgments and which question was also considered by the Shivute CJ in the unreported Supreme Court case SA 1/2005 of Dawn Caroline Handl v Ernst Handl, delivered on 31 March 2008, where the learned Chief Justice stated:

“[16] It is a well established rule of law that the principles involved in the interpretation of a judgment or order are essentially the same as those applicable to the construing of documents.¹³ As it was further pointed out in Firestone South Africa (Pty) Ltd v Gentiruco AG case:¹⁴

‘[T]he court’s intention is to be ascertained primarily from the language of the judgment or order as construed according to the usual, well-known rules. Thus, as in the case of a document, the judgement or order and the court’s reasons for giving it must be read as a whole in order to ascertain its intention. If, on such a reading, the meaning of the judgement or order is clear and unambiguous, no extrinsic fact or evidence is admissible to contradict, vary, qualify, or supplement it. Indeed, it was common cause that in such a case not even the court that gave the judgment or order can be asked to state what its subjective intention was in giving it. Of course, different considerations apply when, not the construction, but the correction of a judgment or order is sought by way of an appeal against it or otherwise. But if any uncertainty in meaning does emerge, the extrinsic circumstances surrounding or leading up to the court’s granting the judgment or order may be investigated and regarded in order to clarify it; for example, if the meaning of a judgment or order granted on an appeal is uncertain, the judgment or order of the court a quo and its reasons therefore, can be used to elucidate it. If, despite that, the uncertainty still persists, other relevant extrinsic facts or evidence are admissible to resolve it. [Reference to authorities omitted].”

[62] Accordingly, and in the application of this test, the point of departure, also in this instance, will be to consider the language and the court reasons used in those portions of the judgment which are relevant to the part of the order which is sought to be rectified in order to ascertain from a reading thereof whether or not they are clear and unambiguous or not and whether same requires clarification.

[63] The relevant passages are as follows:

“[119] It is also clear from the above that I have concluded that certain constitutional rights of the Applicant’s have been denied or were violated.

[120] In the required further determination in this regard, namely as to whether or not a particular form of relief is ‘necessary and appropriate to ensure the applicants the enjoyment of the rights and freedoms conferred on them under the provisions of this Constitution’, I take into account that the Medicines Act 2003, in section 46(3) provides for a transitional period, within which medical practitioners, who immediately before the commencement of the Medicines Act 2003, were prescribing and selling certain medicines, could continue to do so for a three month period, beginning from the date of the commencement of this act.

[121] Given the requirements of Article 22 of the Constitution¹⁵ I also agree with the submissions that the object of section 46 of the Medicines Act 2003 Act, is to protect the vested rights of those medical practitioners who had in the past dispensed and sold medicines and to give an opportunity to those medical practitioners, with vested rights, (which vested rights had now been limited by the new dispensation of the Medicines Act 2003), to follow a fair procedure when applying for the requisite licences in the exercise of the now limited rights, the mechanism that had now been provided for in the act to ensure that such medical practitioners can continue to practise their profession as envisaged in Article 21 (1)(j) of the Constitution of the Republic of Namibia.

[122] No such fair procedure can however be followed until such time that new regulations to the Medicines Act 2003 have been put in place.

[123] As it is unknown how long how it will take to comply with the provisions of sections 44(1) and (2) of the Medicines Act 2003 in this regard it will also not make sense to grant the order, as sought, declaring that the three month transitional period shall commence to run from the date of this court’s order.

[124] I do however find that the extension of the ‘section 46(3) three month transitional period’ is ‘necessary and appropriate, in the circumstances of this matter, to ensure to the applicants the enjoyment of the abovementioned rights and freedoms conferred on them under the provisions of this Constitution’.” (my underlining)

[64] It appears upon an analysis of these quoted passages, expressed in clear and unambiguous language, that :

1. The Court found that the members of the first applicant (which includes the second applicant) have certain vested Constitutional rights, (regarding the prescription, dispensing and selling of medicines) more specifically also those conferred in terms of article 21(l)(j);

2. That it was the intention of the legislator, and the object of that part of the Act (as expressed in the 2003 Medicines Act through sections 46(3) and (4), where provision is made for a so-called transitional period through which the applicants remained entitled to continue to exercise their vested rights as before, (although now limited, and keeping in mind the provisions of Article 22 of the Constitution) provided they make application in terms of duly promulgated regulations within the specified period of time), to afford the applicants the continued protection of their vested, but now duly limited, rights;

3. As no duly promulgated regulations would be in place, the scheme of section 46(3) and (4) of the 2003 Act could not effectively operate;

4. As this situation had been caused as a result of the infringement of certain constitutional rights, thus triggering the Court’s powers in terms of Article 25(3) of the Constitution, the Court became entitled to make any order which was necessary and appropriate to protect vested rights until such time that new regulations would be duly promulgated;

5. The court accordingly, reasoned and intended that, in the circumstances of this matter, it was necessary and appropriate to order the extension of the three month transitional period provided for in sections 46(3) (and 46(4)) in order to ensure to the applicant’s the continued enjoyment of the rights and freedoms conferred on them by the Constitution, (paragraph [124]), until such time that lawful and constitutionally sound regulations, for the application for dispensing licences would be in place again, in terms of which such rights could then, once again, be lawfully limited.

[65] This I find this was the court’s intention as ascertained primarily from the clear and unambiguous language of the judgment and from a reading of the court’s reasons, read as a whole.

[66] By suspending the whole of the provisions of section 46(3) of the Medicines Act 2003, an opposite result was indeed achieved, i.e. that the vested rights of the applicants would not be protected in the interim and accordingly the Court’s order, as granted in f), is liable to variation as prayed for.

[67] One issue however remains as the legal practitioner on behalf of respondents also submitted that the Court cannot suspend a time period that had already passed.¹⁶ It was submitted further that the ability to dispense scheduled substances without a licence by medical practitioners ended on 24 October 2008. The three month transitional period has irrevocably passed and to suspend the three month period would have no effect what so ever as the provisions of Section 46 (4), Section 29 and 31 would still be applicable which would prevent the affected members of first applicant from dispensing scheduled substances without licences. These sections would be contravened if this Court were to grant the relief asked for by applicants.

[68] Given the governing principles to relief sought in terms of Rule 44(1)(b) as laid down in the Handl v Handl judgment and the other authorities referred to therein I cannot take this argument into account in answering the question whether or not the Court’s order should be amended or varied. As indicated hereinabove the only relevant consideration relevant to this part of the application is the interpretation of the judgement ‘ ... according to the usual, well-known rules of construction applicable to the construing of documents .. ‘ as referred to by the learned Chief Justice.

[69] Even if the submission made on behalf of respondents were to be correct that the Court cannot suspend a time period that has already irrevocably passed and that the suspension of the three month period will have no effect what so ever, given the provisions of Sections 46 (4), Section 29 and 31, I have already previously decided this issue otherwise in the main application and cannot revisit it here as I have become functus officio in that regard. This remains a possible issue for the Appeal Court.

THE APPLICATION IN TERMS OF RULE 49 (11)

[70] The Applicants have also applied for an order, that order f), as varied not be suspended through the noting of the appeal by the Respondents herein and that such order, as varied, remain in full force and effect pending the outcome of such appeal.

[71] The applicable legal position in this regard has been authoritatively set out in the matter of South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3) SA 534 AD where Corbett AJ (as he then was) stated:

“Whatever the true position may have been in the Dutch Courts, and more particularly the Court of Holland (as to which see Ruby’s Cash Store (Pty.) Ltd. v Estate Marks and Another, 1961 (2) S.A. 118 (T) at pp. 120-3), it is today the accepted common law rule of practice in our Courts that generally the execution of a judgment is automatically suspended upon the noting of an appeal, with the result that, pending the appeal, the judgment cannot be carried out and no effect can be given thereto, except with the leave of the Court which granted the judgment. To obtain such leave the party in whose favour the judgment was given must make special application. (See generally Olifants Tin “B” Syndicate v De Jager, 1912 A.D. 377 at p. 481; Reid and Another v. Godart and Another, 1938 A.D. 511 at p 513; Gentiruco A.G. v. Firestone S.A. (Pty.) Ltd., 1972 (1) S.A. 589 (A.D.) at p. 667; Standard Bank of S.A. Ltd. v. Stama (Pty.) Ltd., 1975 (1) S.A. 730 (A.D.) at p. 746.) The purpose of this rule as to the suspension of a judgment on the noting of an appeal is to prevent irreparable damage from being done to the intending appellant, either by levy under a writ of execution of the judgment in any other manner appropriate to the nature of the judgment appealed from (Reid’s case, supra at p. 513). The Court to which application for leave to execute is made has a wide general discretion to grant or refuse leave and, if leave be granted, to determine the conditions upon which the right to execute shall be exercised (see Voet, 49.7.3; Ruby’s Cash Store (Pty.) Ltd. V. Estate Marks and Another, supra at p. 127). This discretion is part and parcel of the inherent jurisdiction which the Court has to control its own judgments (cf. Fismer v. Thornton, 1929 A.D. 17 at p. 19).

In exercising this discretion the Court should, in my view, determine what is just and equitable in all the circumstances, and, in doing so, would normally have regard, inter alia, to the following factors:

1. the potentiality of irreparable harm or prejudice being sustained by the appellant on appeal (respondent in the application) if leave to execute were to be granted;

2. the potentiality of irreparable harm or prejudice being sustained by the respondent on appeal (applicant in the application) if leave to execute were to be refused;

3. the prospects of success on appeal, including more particularly the question as to whether the appeal is frivolous or vexatious or has been noted not with the bona fide intention of seeking to reverse the judgment but for some indirect purpose, e.g.. to gain time or harass the other party; and

4. where there is the potentiality of irreparable harm or prejudice to both appellant and respondent, the balance of hardship or convenience, as the case may be.

(See in this connection Ruby’s case, supra at pp. 127-8; also Rood v. Wallach, 1904 T.S. 257 at p. 259-; Weber v. Spira, 1912 T.P.D 331 at pp. 333-4; Rand Daily Mails Ltd. v. Johnston, 1928 W.L.D. 85; Frankel v. Pirie, 1936 E.D.L. 106 at pp. 114-6; Leask v. French and Others, 1949 (4) S.A. 887 (C) at pp. 892-4; Ismail v. Keshavjee, 1957 (1) S.A. 684 (T) at pp. 688-9; Du Plessis v. Van der Merwe, 1960 (2) S.A. 319 (O).)” ¹⁷

The potentiality of irreparable harm or prejudice to respondents :

[72] Respondent’s attitude in this regard was expressed as follows :

“The devastating consequences the order of this Court would have had on the public and the health sector in general, if it had not been suspended by the notice of appeal were obvious: Right after the judgment was handed down the legal position was as follows:

1. No provisions regulating the labelling of medicines, intended for both human and animal consumption existed;

2. No provisions regulating the import and export of medicines and scheduled substances existed;

3. No provisions regulating the prescription of medicines and scheduled substances existed;

4. No provisions stipulating the division of medicines into various categories for purposes of registration existed;

5. No provisions regulating the destruction and disposal of medicines and scheduled substances existed.”

[73] Applicants on the other hand indicated that they had no objection if all the regulations (other than those made with reference to section 46(3) and (4) of the 2003 Act) are to be regarded as fully effective pending the outcome of the appeal.

[74] In such premises it becomes clear that the bulk of the respondents’ listed concerns will not be affected, or at least be materially affected, by the granting of the order now sought in terms of Rule 49(11), as the gross of the regulations relating to the above listed aspects would remain in place, pending the outcome of the appeal.

[75] Accordingly the so-called ‘devastating consequences of the order of this Court on the public and the health sector in general’, remain suspended and the granting of the sought Rule 49(11) relief on the limited aspect only, (allowing certain medical practitioners to practise their professions as before, for an interim period only), surely cannot cause the respondent’s irreparable harm or prejudice.

The potentiality of irreparable harm or prejudice being sustained by the applicants

[76] The refusal of the Rule 49(11) relief on the other hand could in the interim result in medical practitioners, who previously sold and dispensed medicines, and who would continue to do so, to be again exposed to criminal prosecution and make them liable on conviction to a fine not exceeding N$ 40 000.00 or to imprisonment for a period not exceeding 10 years or to both such a fine and imprisonment. That this concern is real appears from the Government Attorneys letter addressed to applicants’ legal practitioner of record on 16 July 2010 and were the Government Attorney, in no uncertain terms, advised : “ Finally, we wish to point out that any medical practitioner who sells scheduled medicines contrary to the provisions of the Act will be liable to criminal prosecution.” The potentiality of irreparable harm caused to medical practitioners who would thus possibly be exposed to such criminal prosecution would obviously be immense.

[77] On the other hand there is the mere temporary inconvenience of the lifting of the suspension of one part of the Court’s order pending the appeal. In this regard the balance of hardship would also clearly favour the granting of the Rule 49(11) relief sought in this regard.

The prospects of success on appeal, including the question as to whether the appeal is frivolous or vexatious or has been noted not with the bona fide intention of seeking to reverse the judgment but for some indirect purpose,

[78] Applicants submitted on this score that the Respondents’ prospects of success in the Supreme Court are weak in view of the findings relating to the members of first applicant’s vested fundamental rights and freedoms, which demand protection.

[79] On the other hand the Respondents deny this aspect without supplying any grounds for such opinion. They merely state that it would ‘not be necessary nor appropriate to address’ “the many misdirections of the Court in these proceedings.”

[80] Contrary to this averment it is however clear from both the common law as well as from what was stated by Corbett JA, in the South Cape Corporation judgment that it was always incumbent and indeed ‘necessary and appropriate’ for the respondents to have addressed this factor.

[81] Be that as it may, the court, in any event, disagrees with the Respondents unqualified opinion rendered in this regard given the many material, ultra vires reviewable acts listed in the main judgement of this court, which ultimately led to the in toto setting aside of the regulations made in terms of the Medicines Act 2003.

[82] The findings of the Court in the main application also seem to be of no significance to the respondents at all, as the second respondent has, in spite of a reasoned judgment, which might even be upheld on appeal, and undeterred by the warning expressed in paragraph [122] of the judgement, “ ... in the mean time considered applications for licences and appeals with regard to some of the applications that have been refused (and) are pending. This is indeed indicative of the respondents’ motives to press ahead regardless of the consequences.

The Constitutional Factor

[83] Sight should finally not be lost of the most important factor of all, being the impact of the supreme law of Namibia on this matter and that the granting of Rule 49(11) relief, would afford the applicants the continued enjoyment of their constitutional rights as provided for in Article 21(1)(j), pending the outcome of the appeal, without exposing them to criminal prosecution.

[84] The granting of the sought Rule 49(11) relief would also prevent the possibility that such medical practitioners vested constitutional rights would be violated in the interim, which, for obvious reasons, is a situation that should be avoided in a constitutional dispensation and were the Court should guard against the possibility of this occurring. In any event, the sooner new regulations are promulgated the sooner the intended scheme of the Medicines Act 2003 can fall back into place.

[85] In view of the above enumerated factors it must be concluded that this would be a fit and proper instance where the Court should exercise its discretion in favour of granting this part of the application as this would also be just and equitable in the circumstances of this case.

[86] Accordingly it is ordered.

1. That the order numbered f), which forms part of the judgment handed down by this Court on 28 June 2010 is hereby varied to read as follows:

“The operation of the three- month transitional period referred to in Sections 46 (3) and (4) of the Medicines Act 2003 is hereby suspended retrospectively as from 25 July 2008 until such time that the First Respondent has caused new regulations to be made in terms of Section 44 of the Medicines Act 2003.”

2. That the operation of the hereby varied order f) is not suspended by the appeal noted on 28 June 2010 by the respondents herein and is ordered to remain in full force and effect pending the outcome thereof.

3. That the first, second and fifth respondents are jointly and severally ordered, the one paying the other to be absolved, to pay the applicants costs, such costs to include the cost of two instructed and one instructing counsel.

_____________________

GEIER, AJ

ON BEHALF OF THE APPELLANT : Adv. R Heathcote SC

Adv H. Schneider

Instructed by: Francois Erasmus & Partners

ON BEHALF OF THE 1^st ,2^nd , & 5^th RESPONDENTS: Mr N. Markus

Nixon Markus Public Law Office

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