THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

REPORTABLE
Case No: 197/2014

In the matter between:

MEDIRITE (PTY) LIMITED

Appellant

and

SOUTH AFRICAN PHARMACY COUNCIL                       First Respondent
THE MINISTER OF HEALTH

Second Respondent

Neutral citation: Medirite v South African Pharmacy Council (197/2014)
[2015] ZASCA 27 (20 March 2015)

Coram:
Mpati P, Maya, Leach, Pillay and Zondi JJA

Heard:
16 February 2015

Delivered: 20 March 2015

Summary:  Administrative law – amendment to general rules of
pharmaceutical practice neither rational nor reasonable – amendment set aside
on review.

________________________________________________________________

ORDER
________________________________________________________________

On appeal from:  Gauteng Division, Pretoria (Mabuse J sitting as court of first
instance):
1 The appeal succeeds with costs, such costs to include the costs of two counsel.
2 The order of the court a quo is set aside and is substituted with the following:
„(a)  The first respondent‟s amendment of s 1.2.2 of Annexure A to the Rules
Relating to Good Pharmacy Practice, published in Government Gazette No
35095 on 2 March 2012 under Board Notice 35/2012, insofar as it introduced
subsecs (b), (c) and (d) to s 1.2.2.1, is set aside.
(b) The first respondent is to pay the applicant‟s costs, including the costs of
two counsel.‟
________________________________________________________________
JUDGMENT
________________________________________________________________

Leach JA (Mpati P, Maya, Pillay and Zondi JJA concurring)

[1] For obvious reasons of public interest, the pharmaceutical industry is
heavily regulated. Amongst other controls the first respondent, the South
African Pharmacy Council, a juristic person established under s 2 of the
Pharmacy Act 53 of 1974 (the Act), is empowered under s 35A(b)(ii) of that
Act to make rules relating to „good pharmacy practice‟ that are binding upon all
persons licensed to provide pharmacy services.1 On 17 December 2004, the first

1 Regulation 20(1) of the „Regulations Relating to the Practice of Pharmacy, GN R1158, GG 21754, 20
November 2000; regulation 7(1) of the „Ownership and Licensing of Pharmacies, GN R553, GG 24770, 25
April 2003; regulation 18(8)(b) of the „Regulations Relating to the Period and Manner of Appeal Against
Decisions of the Medicine Control Council, GN R906, GG 14826, 28 May 1993‟.

respondent published rules relating to good pharmacy practice (the GPP Rules).2
An amendment to those rules, published by the first respondent on 2 March
2012,3 lies at the heart of the present dispute. As more fully set out below, the
appellant was aggrieved by certain provisions introduced by the amendment and
sought to have them reviewed and set aside by the high court, citing the first
appellant and the Minister of Health as respondents in its application.  No relief
was sought against the Minister who was joined solely as a potentially
interested party but who has played no part in the proceedings, either in the high
court or in this appeal. In any event, the appellant‟s application was dismissed
on 20 December 2013. The appeal to this court is with leave of the court a quo.
[2] Pharmacies situated within the precincts of other business premises such
as supermarkets and hospitals, but run as separate businesses, have become
fairly commonplace in this country as they are elsewhere in the modern world.
Since 2003 the appellant, a wholly owned subsidiary of Shoprite Checkers (Pty)
Ltd, operating under the brand name of Medirite, has conducted separate
pharmacy businesses within Shoprite, Checkers and Checkers Hyper
supermarkets. Capitalising on the free flow of foot traffic between the
supermarket in which it is situated and the pharmacy itself, its business model
proved so successful that when the present proceedings were instituted in the
court a quo, the appellant was operating 129 licensed pharmacies in this way
and planned to expand that number considerably within a few years.
[3] Typically, the appellant‟s pharmacies are organised as follows:
(a)
The pharmacy itself consists of a dispensary in which scheduled
medicines are kept and stored out of public reach, an office or consultation
room, a waiting area for patients or customers, and a service counter between
the dispensary and the shop floor.

2 Rules Relating to Good Pharmacy Practice, GN R129, GG 27112, 17 December 2004.
3 Rules Relating to Good Pharmacy Practice, GN R35, GG 35095, 2 March 2012.

(b)
Members of the public deal with the pharmacist across the service
counter, with the patient being provided with the necessary degree of privacy
and confidentiality by partitioning that create a booth-like structure. The counter
is directly accessible from the supermarket floor but the dispensary behind it
may be accessed solely through a door between it and the office or a private
consultation room.
(c)
The space between the counter and the dispensary is fitted with a
retractable and lockable vertical shutter that is closed and locked whenever the
pharmacy is not open for business. In this way no-one other than the responsible
pharmacist, who retains the keys, has access to the scheduled medicines stored
in the pharmacy.
(d)
Situated immediately adjacent to, but in front of the service counter, are
both the waiting area (usually near the door that leads to the office and
dispensary, and furnished with chairs) and the so-called „front shop‟ which is
not part of the licensed pharmacy premises. (I should mention that the owner of
a pharmacy is obliged to hold a license issued by the Director-General of the
Department of Health for the premises where the pharmacy business is
conducted.)4 The front shop is stocked with health and beauty products,
experience having shown that there are valuable synergies to be exploited
between the provision of pharmacy services and the sale of these products.
(e)
The stock offered for sale in the front shop also includes certain so-called
„schedule 0‟ medicines, such as headache tablets. Unlike other scheduled
medicines, these may be sold by any retailer, including supermarkets, spaza
shops (tuckshops) or liquor stores, and therefore do not have to be processed
and paid for at the pharmacy counter. However, as certain schedule 0 medicines
are often included in doctors‟ prescriptions, a range of these are also stocked
within the dispensary for convenience in order to be dispensed together with
other prescription medicines.

4 Reg 8 of the Regulations Relating to the Ownership and Licensing of Pharmacies, supra, fn 1.

[4] As at May 2011, s 1.2.2(b) of Annexure A to the GPP Rules provided that
„the pharmacy premises must be clearly demarcated and identified from the
premises of any other business or practice‟. However, on 27 May 2011 the first
respondent published for comment a draft amendment thereto that envisaged not
only revising the wording of that rule (but not its import) but the introduction of
additional requirements as to the method of demarcation of pharmacy premises,
including the construction of a wall.  Alarmed by this, the appellant submitted
detailed written representations to the first respondent on 25 July 2011 in an
attempt to persuade it not to effect the proposed amendment. The appellant also
met with the registrar of the first respondent on 29 September 2011 to voice its
concerns. These representations had no effect and, on 2 March 2012, the first
respondent published the amendment.
[5] The amendment introduced a new s 1.2.2.1 that in its entirety reads as
follows:
„(a)
The pharmacy premises must be clearly identified and demarcated from the premises
of any other business or practice.
(b)
The demarcation must be permanent, solid and closed-off at all times, which
demarcation may be inter alia brick and mortar, aluminium, steel, glass, dry wall or wood
partition.
(c)
The demarcation must be from floor to the ceiling height and must enclose all areas
attached to the pharmacy viz: the waiting area, the clinic, the semi-private area and the
private area.
(d)
The pharmacy must have a single point of entry and a single point of exit in
compliance with the Occupation Health and Safety Act 85 of 1993 (OHSA).
(e)
In order to comply with the requirement of accessibility to pharmaceutical services, a
pharmacist must have an unfettered 24 hour access to the pharmacy.‟
[6] The appellant has calculated that in order for members of the public not
to feel physically restricted and to enjoy a sense of confidentiality when
consulting with the pharmacist, the proposed wall should be about four metres

from the service counter. As the length of a pharmacy is typically about eight
metres, the wall will create a „box‟ jutting out and enclosing an area in excess of
30 square metres of floor space in front of the counter. Not only will this entail
substantial construction expenditure (the appellant estimates the cost of building
a wall meeting these requirements at approximately R200 000) but the presence
of such a wall will in all likelihood have a profound negative impact on the
supermarket business model, interfering as it must with the free flow of
customers between the host supermarket and the pharmacy. The further
requirement that the wall must extend from floor to ceiling is in itself
problematic, not only as many of the host supermarkets are in buildings that
have either extremely high ceilings or, in many cases, no ceilings at all, but the
erection of a wall of this nature may adversely impact on the lighting and
ventilation design of the buildings in which the pharmacies are situated.
[7] Consequently, on 22 March 2012, relying upon s 5 of the Promotion of
Administrative Justice Act 3 of 2000 (PAJA), the appellant asked the first
respondent to provide its reasons for passing the amendment. In its reply of 26
April 2012, the first respondent stressed the need to ensure that the profession
provides excellence for the benefit of those they serve, and went on to say:
„(I)t is imperative to ensure that the premises defined as a “pharmacy” is clearly demarcated
which demarcation needs to be clearly identified and permanent. This has proved to be
problematic where a pharmacy is situated within another business, and has in practice given
rise to the colloquial, yet arbitrary, “white line” concept to demarcate the area registered as
the pharmacy. This is evident in pharmacies situated within healthcare facilities or group
practices, institutional pharmacies which have a section directly accessible by members of the
public and pharmacies situated within an ordinary retail environment eg “supermarket
model”.
The absence of a permanent demarcation of the pharmacy premises has led to a lack of
definitive jurisdiction for the Council and in some circumstances definitive jurisdiction
vis a vis other statutory health councils in the application of Ethical Rules. In addition the
“white line” can be moved without notice and may at the extreme even vary from day to day.

It is common cause that owners/responsible pharmacists and the Office of the Registrar are
aware of the demarcation of the pharmacy premises due to the fact that floor plans have to be
provided for purposes of pharmacy licenses and the recording of such pharmacies. However,
when a pharmacy is situated within another business and in the absence of a permanent
demarcation these premises lines/boundaries/borders are unknown to 3rd parties, in particular
the members of the public, other healthcare professionals and Council‟s inspectors (should
they not have access to or be in possession of floor plans).
At the highest level, the lack of a permanent, visible, therefore known demarcation brings
into question where does the pharmacy begin and end and thus where do the rules and laws
begin and end in terms of pharmacies and pharmaceutical services. In addition the Council
identified specific areas of concern in regulating the pharmacy in the absence of a permanent
business demarcation:
(a)
Confidentiality issues, in terms of record keeping and potential access to patient
records;
(b)
Access to scheduled substances;
(c)
Stock control;
(d)
Access to the pharmacy but unregistered/unauthorized; and
(e)
In contrast to point (d) above, the lack of access to the pharmacy when the main
business is closed or inaccessible.
Based on the abovementioned details the Council identified the need to simplify the
minimum standards pertaining to the demarcation, accessibility of a pharmacy situated within
construction of a permanent “structure” must incorporate the entire pharmacy.‟
[8] On receiving these reasons, the appellant attempted to persuade the first
respondent to withdraw the amendment. When its efforts were unsuccessful, the
appellant decided to challenge the amendment and launched review proceedings
in the court a quo. As appears from its reasons of 26 April 2012, and
repetitively repeated in its answering affidavits, the first respondent‟s primary
concern in effecting the amendment appears to have been to ensure that
pharmacy premises are clearly identifiable and demarcated from the host
businesses in which they are situated. Certain of its expressed reasons for that
view are somewhat difficult to appreciate, but nothing turns on this as the

appellant accepted that it is necessary for pharmacies to be both identifiable and
clearly demarcated from the supermarkets in which they are to be found. The
appellant‟s challenge on review related solely to the provisions of subsecs (b),
(c) and (d) of s 1.2.2.1 introduced by the amendment ie the requirements
relating to a permanent wall extending from floor to ceiling with restricted
points of entry and exit. As already mentioned, its challenge was dismissed by
the court a quo and is now before this court on appeal.
[9] It is necessary to record at the outset that both sides were agreed,
correctly, that the first respondent‟s amendment of the GPP Rules constituted
administrative action taken by an administrator as envisaged by PAJA. Section
33(1) of the Constitution requires such administrative action to be „lawful,
reasonable and procedurally fair‟ and PAJA is designed to ensure the
achievement of that end. It provides that administrative action may be set aside,
inter alia, if irrelevant considerations were taken into account or relevant
considerations were not considered,5 if it was not rationally connected to either
the information before the administrator6 or the reasons given for it by the
administrator,7 or if it was an action that no reasonable decision-maker could
take.8 The requirement of rationality is to ensure that the action is not arbitrary
or capricious and that there is a rational connection to the facts and the
information available to the administrator taking the decision and the decision
itself.9
[10] Whether an action may be impugned on any of these grounds involves a
fact driven inquiry having regard, inter alia, to the information available to the
administrator, the considerations relied on, the ends that were sought to be

5 Section 6(2)(e)(iii).
6 Section 6(2)(f)(cc).
7 Section 6(2)(f)(ii)(dd).
8 Section 6(2)(h). See further Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs 2004 (4) SA 490
(CC) para 44.
9 SA Predator Breeders Association v Minister of Environmental Affairs and Tourism [2011] 2 All SA 529
(SCA) para 28.

achieved and the effect the proposed action would have upon interested parties.
But in considering the lawfulness of the action sought to be impugned, it is
important for a court to remember that it is engaged in a review and not an
appeal, and that it is not for it to usurp the administrator‟s function.
Accordingly, as long as the administrative action is rational or reasonable it
cannot be impugned, even if it is not an action the court would have taken. But
of course questions such as reasonableness and rationality involve the making
of a value judgment that cannot be tested in isolation, so to speak, without
considering the so-called „merits‟ of the action and why it was taken.10
[11] A consideration of the merits of the decision in the present case is
bedevilled by a singular lack of information as to why the first respondent
decided that a wall meeting the prescribed requirements was necessary. As
already mentioned, the GPP Rules prior to the introduction of the amendment
also required pharmacy premises to be „clearly demarcated and identified from
the premises of any other business or practice‟, and the first respondent had
never complained that any of the appellant‟s pharmacies breached this rule
despite having regularly inspected them. The inference is that the appellant‟s
premises were in fact clearly demarcated and identifiable. Nor for that matter is
there any suggestion that any complaint, of any nature whatsoever, had been
made arising out of the adoption of any similar business model by other
pharmacy owners. Significantly, when the draft amendments were published for
purposes of comment, it was done without any motivation as to why the existing
rule had been inadequate or why it had been felt necessary to effect changes
thereto.
[12] Nor does the first respondent‟s motivation in effecting changes to the
existing rule appear from the documents it furnished under Uniform rule 53 in
response to the institution of review proceedings. What does appear from those

10 See eg, C Hoexter Administrative Law in South Africa (2ed) (2012) at 351-352.

documents is that, in April 2008, the first respondent had established a task
team to develop a discussion paper in regard to various aspects of
pharmaceutical practice. Thereafter the first respondent‟s registrar wrote to
various foreign pharmaceutical regulators, inquiring about their respective
requirements relating to pharmacies in supermarkets. The first respondent‟s
records show no response to any of these enquiries. All one knows is that in the
minutes of a teleconference of the task team conducted on 25 June 2009 it was
noted that corporate pharmacies should be advised to have „a white line
demarcation separating the pharmacy from the rest of the business‟(the „white
line model‟ is a system which uses markings on the floor of the premises to
indicate the boundary between the pharmacy and the host business), and that
members of the task team were to „engage with a few corporate pharmacies
regarding the white line model‟. These minutes must be construed as an
indication that the task team favoured the introduction of such a method of
demarcation. Significantly, they make no mention of a permanent enclosure.
[13]   The first respondent alleged in its answering affidavits that during the
teleconference there had in fact been a vigorous debate about the efficacy of the
„white line model‟ as it was regarded as being problematic. It also alleged that
the white line model „has rarely been properly observed‟ and suggested that the
line might be moved on a daily basis, something that with its limited resources
it could not police. However, not only did the first respondent give no details of
this ever having happened, but even if one accepts that there was a perception
that this could occur, there is no mention in the minutes of any discussion
concerning the necessity of providing a box-like enclosure of the nature of that
ultimately prescribed by the amendment.
[14] So why did the first respondent introduce subsecs (b), (c) and (d)
requiring a permanent wall extending from floor to ceiling, with restricted
access, in order to demarcate and identify a pharmacy‟s premises? The answer

to this question is shrouded in mystery. As already mentioned, the main issue
the first respondent addressed in resisting the review was the necessity to
adequately demarcate and identify the premises of a pharmacy, but nowhere in
the papers did it explicitly set out its reason why it felt that it was necessary to
build a wall of this nature in order to achieve this end. The closest it has ever
come to an explanation is the suggestion in its reasons of 26 April 2012 that it
had identified the need „to simplify the minimum standards pertaining to the
demarcation‟ of a pharmacy. This is quite simply no reason at all. Whilst there
can be no doubt that the prescribed wall would certainly achieve the end of
demarcating and identifying the premises of a pharmacy, it can hardly be
suggested that it is the simplest solution to achieve that end.
[15] The fundamental difficulty facing the first respondent is, thus, that it has
neither explained what considerations it took into account nor provided any
motivation for its introduction of a rule requiring a wall envisaged in the
introduced subsecs, the building of which is likely to impinge heavily upon the
appellant‟s business model. Had it had any facts justifying the need for such a
wall, it can be presumed they would have been forthcoming. As they were not,
the matter must be decided on the basis that there were none.
[16] In these circumstances, accepting that there was no information before
the first respondent or factual foundation that demonstrated any existing
mischief that needed to be addressed by way of a wall of the nature specified,
the decision to oblige pharmacy owners to build such a wall was arbitrary and
irrational in the sense that it lacked any logical justification.
[17] Faced with this difficulty, counsel for the first respondent argued that
once it was accepted that it was rational and reasonable to require a demarcation
of the pharmacy premises, it was not for a court to question the means by which
it decided to achieve this end – namely, by erecting the wall in compliance with

the subsecs. However, although the first respondent was empowered by s 4 of
the Act to generally „do all such things as the council deems necessary or
expedient to achieve the objects of this Act‟, it does not have carte blanche to do
just as it likes. Instead its discretion is fettered by the obligation to exercise its
administrative powers lawfully.  Sub-sections (b), (c) and (d) relating to the
nature and extent of the envisaged wall were made by it in purporting to
exercise those powers, and it is its action in doing so that may be challenged on
review.  Accordingly, even if a demarcation is justifiable, the administrative
action amending the GPP Rules to introduce the requirement of a wall of the
nature envisaged is liable to be set aside under PAJA if it was not properly
taken. And as that decision lacked rationality for the reasons already given, it
does not withstand scrutiny under PAJA.
[18] Of further importance is the first respondent‟s failure to indicate why it
felt that a less onerous demarcation would not have sufficed. Although it is not
for a court to determine on these papers what would have been an adequate
albeit less restrictive method of demarcation, it takes little imagination to
envisage various ways in which the premises of a pharmacy in a supermarket or
other business premises could easily be clearly identified and demarcated at
little cost and without causing significant interference with the free flow of
customer traffic between the two businesses.
[19]   The first respondent argued that the onerous practical implications the
appellant would bear in giving effect to the amendment were irrelevant as the
amendment was not specifically targeted at the appellant but at all pharmacies
located in other businesses, and that persons who do business in a highly
regulated field must proceed on the basis that, from time to time, the regulatory
landscape will change. It further argued that although the appellant had made
much of the adverse implications of the floor-to-ceiling model, it would have
been amenable to considering a workable alternative that was less invasive.

[20]   Of course persons doing business in a regulated profession cannot expect
that the regulations under which they operate will remain static. But that is no
reason for the consequences of any proposed changes in the regulations upon
those affected to be regarded as irrelevant and not to be taken into account
before they are implemented. As already mentioned, s 6(2)(h) of PAJA requires
an administrative decision to be reasonable in the light of the circumstances of
each particular case. As O‟Regan J stressed in her seminal judgment in Bato
Star Fishing,11 factors relevant to the determination of whether a decision is
reasonable or not will include the reasons given for the decision (which as I
have stressed are singularly lacking in this case) as well as „the nature of the
competing interests involved and the impact of the decision on the lives and
well-being of those affected‟.12 It has been stated that „proportionality is a
constitutional watchword‟13 and as was observed by Plasket J in Ehrlich,14
quoting with approval the views of Prof Jowell, unreasonable administrative
action includes „those that are oppressive in the sense that they “have an
unnecessarily onerous impact on affected persons or where the means employed
(albeit for lawful ends) are excessive or disproportionate in their result”‟.15
[21] Accordingly, in seeking to achieve a clear demarcation between
pharmacy and supermarket, the first respondent was obliged to weigh up the
effect of its rules on those affected thereby, particularly as the implementation
of the new subsecs was likely to have a substantial adverse effect on the basic
business model being used not only by the appellant but by other pharmacy
owners using the supermarket model countrywide.

11 Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs 2004 (4) SA 490 (CC).
12 Paragraph 45.
13 City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd 2011 (4) SA 337
(SCA).
14 Ehrlich v Minister of Correctional Services 2009 (2) SA 373 (E).
15 Para 42 quoting, J Jowell „Judicial Review of the Substance of Official Decisions‟ (1993) 13 Acta Juridica
117 at 120.

[22] Moreover, implicit in the recognition that the first respondent was
amenable to a less invasive alternative than the wall it had prescribed, is an
acknowledgement that the floor-to-ceiling wall was not necessary in order to
achieve the objective to ensure a clear demarcation between the pharmacy and
the host business. This is a telling concession. By seemingly ignoring any other
option the first respondent failed to consider less drastic but surely available
means to accomplish the desired result of a clear demarcation. A floor-to-ceiling
wall would indeed be an absolute demarcation, but without the first respondent
providing any reason for requiring such a wall, the adverse consequences to the
supermarket business model and the costs flowing therefrom appear to have
been wholly disproportional to the end it sought to achieve. Instead it used „a
sledgehammer to . . . crack a nut‟.16  As the first respondent has failed to attempt
to justify the use of a sledgehammer, its action must be regarded as
unreasonable.
[23] Consequently, the first respondent‟s administrative action in making the
subsecs in question ought to have been set aside as having been both irrational
and unreasonable. For these reasons alone the court a quo erred in concluding
otherwise, and its order cannot stand. This renders it unnecessary to consider the
various further issues debated in this court.
[24] The following order will therefore be made:
1 The appeal succeeds with costs, such costs to include the costs of two counsel.
2 The order of the court a quo is set aside and is substituted with the following:
„(a)  The first respondent‟s amendment of s 1.2.2 of Annexure A to the Rules
Relating to Good Pharmacy Practice, published in Government Gazette No
35095 on 2 March 2012 under Board Notice 35/2012, insofar as it introduced
subsecs (b), (c) and (d) to s 1.2.2.1, is set aside.

16 A somewhat hackneyed but graphic idiom used, inter alia, in S v Manamela 2000 (3) SA 1 (CC) para 34.

(b) The first respondent is to pay the applicant‟s costs, including the costs of
two counsel.‟

_______________________
L E Leach
Judge of Appeal

Appearances:

For the Appellant:

J J Gauntlett SC (with him M W Janisch)

Instructed by:

Werksmans

C/o Van der Merwe Du Toit Inc, Pretoria

Phatshoane Henney, Bloemfontein

For the Respondent:

A P H Cockrell SC (with him A B Friedman)

Instructed by:

Potgieter-Marais Attorneys, Pretoria

J L Jordaan Attorneys, Bloemfontein
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:  The Registrar, Supreme Court of Appeal
Date:   20 March 2015
Status:  Immediate

Please note that the media summary is intended for the benefit of the media and does not
form part of the judgment of the Supreme Court of Appeal

Neutral citation:
Medirite v South African Pharmacy Council (197/2014) [2015]
ZASCA 27 (20 March 2015)

Pharmacies situated within the precincts of other business premises but run as separate
businesses have become commonplace in this country. Since 2002, the appellant, operating
under the brand name of Medirite, has conducted separate pharmacy businesses within
Shoprite, Checkers and Checkers Hyper supermarkets.

The pharmaceutical industry is heavily regulated and all persons that are licensed to provide
pharmacy services are obliged to conduct themselves in accordance with rules relating to
good pharmacy practice prescribed by the first respondent, the South African Pharmacy
Council. On 2 March 2012, the Council published an amendment to the good pharmacy
practice rules which required pharmacies conducted in other businesses to clearly identify
and demarcate their premises from any other business or practice by building a permanent,
solid and closed-off wall extending from floor to ceiling, enclosing all areas of the pharmacy,
and having a single point of entry and a single point of exit. Aggrieved by this amendment,
the appellant applied to the high court for an order reviewing and setting aside the
amendment. Its application was dismissed and the appellant duly appealed to the Supreme
Court of Appeal.

It was common cause that the publication of the amendment had constituted an
administrative action under the provisions of the Promotion of Administrative Justice Act 3
of 2000 and that the Council’s decision in that regard was thus reviewable under that Act.
The Council in opposing the review had failed to show that there was any information before
it that demonstrated any existing mischief that needed to be addressed by way of a wall of the
nature specified in the amendment or what considerations it took into account and why it had
been felt necessary to introduce such a wall. The Council had also failed to indicate why it
felt that a less onerous demarcation would not have sufficed in order for the pharmacy
premises to be clearly identified. The Supreme Court of Appeal today held that the first

respondent’s action in publishing the amendment containing the requirements for such a wall
had been both irrational and unreasonable, and that it had used a sledgehammer to crack a
nut. It therefore allowed the appeal and set aside the offending provisions of the amendment
of its rules relating to good pharmacy practice published on 2 March 2012.

---ends---