Submission on an appropriate dispensing fee as envisaged by section 22G of the Medicines and Related Substances Act, 1965

In an advertisement placed in the Sunday Times (dated 23 October 2005 and entitled “Call for Submissions”), the Pricing Committee invited “interested parties to provide input on an appropriate dispensing fee as envisaged in terms of section 22G of the Medicines and Related Substances Act, Act No. 101 of 1965” (the Medicines Act). In particular, the advertisement called for interested parties to “provide input on all issues that are relevant to the determination of an appropriate dispensing fee.”

This joint AIDS Law Project/Treatment Action Campaign submission does not consider the matters raised in the document entitled “Issues to be addressed in submissions to the Pricing Committee”, as these lie outside our areas of expertise. Instead, our submission is limited to a consideration of key legal issues raised in the Constitutional Court’s decision of 30 September 2005 in Minister of Health v NewClicks South Africa (Pty) Ltd, being structured into three main parts:

  • First, it summarises the three key opinions of the majority regarding theunreasonableness of the dispensing fee. At least insofar as the fixing of the fee is concerned, all of these opinions are based on the finding that theprovisions of the Promotion of Administrative Justice Act, 3 of 2000 (PAJA) are applicable.
  • Second, it explores the implications of these three decisions, particularlyinsofar as the deliberations and recommendations of the Pricing Committee in respect of a revised dispensing fee are concerned.
  • Third, it makes short recommendations regarding the process that we believe the Pricing Committee and Minister of Health should follow indeveloping, adopting and publishing a revised dispensing fee.

Appropriate Dispensing Fee – 2005