Sello and Another v South African Pharmacy Council (073747/2024) [2025] ZAGPPHC 821 (25 August 2025)

Case Note

Sello v South African Pharmacy Council (Case No 073747/2024) [2025] ZAGPPHC ___ (25 August 2025)

Reportability

Although the rubric to the judgment originally marked the matter as “not reportable”, the decision contains an important restatement of the relationship between the Promotion of Administrative Justice Act 3 of 2000 (PAJA) and the common-law review jurisdiction of the High Court. It emphasises that, following Constitutional Court authority, PAJA constitutes the primary pathway for challenging administrative action and that litigants who seek to rely on common-law review grounds must do so within the PAJA framework or convincingly justify a separate route.

A second feature giving the judgment precedential value is its treatment of delay under section 9 of PAJA. The court reiterated that an application for condonation is indispensable when the 180-day time-bar has expired; failure to seek such extension is fatal, regardless of the perceived merits.

Finally, the ruling offers guidance on the entitlement of a statutory regulator to engage two counsel, including senior counsel, and recover those costs on the higher “scale C” when defending reviews that threaten its regulatory mandate. This cost aspect has broader significance for professional councils and other Chapter 9 or statutory bodies.

Cases Cited

Pharmaceutical Manufacturers Association of South Africa and Another: In re Ex parte President of the Republic of South Africa and Others 2000 (2) SA 674 (CC)
Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others 2004 (4) SA 490 (CC)
Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Council and Others 1999 (1) SA 374 (CC)
Asia Construction (Pty) Ltd v Buffalo City Metropolitan Municipality 2017 (6) SA 360 (SCA)
Opposition to Urban Tolling Alliance v South African National Roads Agency Ltd 2013 (4) All SA 639 (SCA)

Legislation Cited

Constitution of the Republic of South Africa, 1996
Pharmacy Act 53 of 1974
Promotion of Administrative Justice Act 3 of 2000

Rules of Court Cited

Uniform Rules of Court, Rule 53

HEADNOTE

Summary

The applicants, two pharmacists and co-owners of Lakefield Pharmacy, sought to review and set aside the decision of the South African Pharmacy Council (SAPC) to institute disciplinary proceedings against them. They contended that the Council’s Committee of Preliminary Investigation (CPI) acted unlawfully by referring the matter to a Committee of Formal Inquiry (CFI) without giving them a prior opportunity to respond to complaints and inspection reports.

The High Court (Millar J) held that the impugned decision constitutes “administrative action” under PAJA, that the review was lodged well outside the 180-day period prescribed by section 7(1), and that the applicants had not applied for condonation as required by section 9. Without such application, the court was barred from considering the merits.

Consequently, the application was dismissed with costs, including the costs of two counsel on the higher “scale C”.

Key Issues

Whether the decision of the SAPC to institute disciplinary proceedings constitutes administrative action reviewable under PAJA.

Whether the applicants, having launched the review more than 180 days after the decision, could be heard in the absence of an application for condonation in terms of section 9 of PAJA.

Whether the SAPC’s alleged failure to afford the applicants an opportunity to make representations before referral to the CFI rendered the proceedings procedurally unfair.

Held

The court held that the decision was indeed administrative action subject to PAJA. Because the review was instituted outside the statutory 180-day period and no condonation was sought, the application was fatally defective. The court therefore refused to entertain the merits and dismissed the application. Costs were awarded against the applicants, including the costs of two counsel on scale C.

THE FACTS

Lakefield Pharmacy received an “A” grading after a routine monitoring inspection on 19 May 2021. Subsequent complaints prompted a disciplinary inspection on 17 March 2022 by Mr Bayever on behalf of the SAPC. The inspection aimed to determine whether the pharmacy was operating without a pharmacist, whether unqualified persons were dispensing medicine, and to conduct a full monitoring inspection.

Mr Bayever’s report alleged obstruction by the applicants and raised concerns about professional misconduct. The SAPC’s CPI initially placed the matter in abeyance but later commissioned a joint inspection on 19 May 2022 by Ms Karsten (SAPC) and Ms Seabi (SAHPRA). Their findings downgraded the pharmacy to a “C” grade and detailed multiple regulatory contraventions.

On 25 May 2022 the registrar informed the applicants of twelve provisional charges and invited written representations within 21 days. The applicants remained silent until their attorney’s letter of 9 August 2022, disputing the inspection’s accuracy and indicating an intention to defend any charges. On 20 July 2022 the CPI resolved to refer the matter to a CFI. Formal disciplinary hearings commenced on 12 July 2023, were postponed to allow for a review challenge, and the first review application was later withdrawn. The present review was launched on 10 July 2024.

THE ISSUES

The principal issue before the High Court was procedural: whether it could entertain a review of the CPI’s referral decision despite the application having been lodged outside PAJA’s 180-day window and without a condonation application.

Substantively, the applicants alleged a breach of their constitutional right to procedurally fair administrative action under section 33 of the Constitution, arguing that they should have been granted the opportunity to comment on the complaints and inspection reports before any formal referral.

A further issue concerned costs: whether it was reasonable for the SAPC to brief two counsel and, if successful, to recover those costs on the higher tariff.

ANALYSIS

First, the court examined the nature of the impugned decision and found it incontrovertibly to be administrative action falling within PAJA’s purview. Reference was made to Bato Star Fishing and Pharmaceutical Manufacturers, both of which confirm that post-constitutional administrative law is governed by PAJA as the primary statute, with common-law principles absorbed into its framework.

Secondly, Millar J considered the time-bar. Section 7(1) of PAJA obliges an aggrieved party to institute review proceedings within 180 days of becoming aware of the action. The applicants launched their review nearly two years after the CPI decision of 20 July 2022. Citing Asia Construction and Opposition to Urban Tolling Alliance, the court reiterated that a reviewing court must deal with delay first; without condonation the merits are non-justiciable.

Thirdly, with respect to the applicants’ attempt to characterise their challenge as a common-law review under Rule 53, the court deemed the argument unsustainable. The applicants themselves pleaded PAJA in their supplementary founding affidavit and relied on its terminology. Even if they had relied on common law, the Constitutional Court in Pharmaceutical Manufacturers makes clear that there is now “one system of law grounded in the Constitution” and that PAJA governs public-law reviews.

REMEDY

Having found the review defective for want of condonation, the court dismissed the application in toto. It ordered the applicants jointly and severally to pay the SAPC’s costs on the party-and-party scale, expressly including the costs of two counsel (one senior and one junior) taxed on scale C. The court accepted that the engagement of senior counsel was a reasonable precaution given the possible impact of an adverse judgment on the Council’s regulatory functions.

LEGAL PRINCIPLES

Administrative action undertaken by statutory professional councils is subject to PAJA; litigants cannot evade the statute by invoking common-law review grounds.

A court must consider delay under section 7(1) and section 9 of PAJA before addressing the merits. Absence of an application for condonation is in itself dispositive.

The constitutional right to procedural fairness does not override statutory time-limits; it must be vindicated within the procedural confines of PAJA.

Where the mandate of a statutory regulator is at risk, it may reasonably brief two counsel and, if successful, recover those costs on a higher tariff.