Saturday 15 June

On 15 November 2011, the North Gauteng High Court in Pretoria ruled in favour of the Medicines Control Council (MCC) and others in a matter concerning Adcock Ingram’s resistance to the MCC’s decision to cancel the registration of medicines containing dextropropoxyphene (DPP).   The written judgment came down this year.  While the ruling from the bench has been in effect since November 2011, the written judgment provides interesting insight into the importance of the ruling and the troubling conduct of the State Attorney, which led to the necessity of this challenge in the High Court.

The MCC made the decision to cancel registration of medicines containing DPP in April 2011.  The MCC came to the conclusion that the risks posed by such medicines outweigh their benefits.  However, after the MCC’s decision, Adcock Ingram sought an order that entitled it to sell these dangerous medicines pending the administrative appeal against the MCC’s decision.

The State Attorney, purporting to act on behalf of the applicants, entered into a settlement agreement with the respondents, despite the fact that the State Attorney had not been authorised to do so.  Indeed, the State Attorney had been given explicit instructions not to settle the matter.  The settlement agreement purported to allow Adcock Ingram to continue to sell medicines containing DPP, despite the serious health risks they pose.

Judge Bertelsmann set aside the settlement agreement.  Thus, medicines containing DPP cannot be sold in South Africa.  The judgment rightly places the health and safety of the public over the pharmaceutical company’s profits.

Judge Bertelsmann went on to express his dismay at the conduct of the State Attorney.  He acknowledged that, under normal circumstances, Adcock Ingram would be required to pay the MCC’s legal fees.  He declined to do so in this case because:

“ … the court must in some manner express its dismay at the fact that the State Attorney and those instructed by him allowed this settlement agreement to be concluded, thereby causing the chain of unfortunate events that ended in this court today. 

This is not the place to expand upon this issue, other than to record that it is a most unfortunate occurrence that one hopes will never occur again.

After all, the State Attorney is the custodian of public funds and is responsible for the representation of all our government institutions and organs of state.

And they would be the first to agree that in this case, the professional standard they aspire to has not been met.”

A full version of the judgment can be found here:MEDICINES CONTROL COUNCIL & OTHERS // ADCOCK INGRAM LTD & ANOTHER (CASE NUMBER: 57976/2011)

The full press release of the case can be found here.