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

45 Reportability
Administrative Law
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Brief Summary

In the case of Sello v South African Pharmacy Council, the High Court of South Africa (Gauteng Division, Pretoria) dismissed the applicants' request to review and set aside the decision of the South African Pharmacy Council (the respondent) to initiate disciplinary proceedings against them. The applicants, pharmacists Abram Ditonkana Sello and Potego Sello, contended that the disciplinary process was irregular and violated their right to procedural fairness. They argued that they were not given an opportunity to respond to the complaints or the findings of the inspections conducted at their pharmacy, Lakefield Pharmacy, which had initially received an A grading but was later downgraded to a C grade following a disciplinary inspection. The court found that the applicants had not established sufficient grounds for the review application, noting that the disciplinary inquiry had not yet concluded and no findings had been made against them. The court emphasized that the applicants' claims regarding procedural unfairness were premature, as they had not yet faced any formal charges or outcomes from the ongoing inquiry. Consequently, the application was dismissed, and the applicants were ordered to pay the respondent's costs, including those for engaging two counsel, one of whom was a senior counsel.

Comprehensive Summary

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.

1
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
D ELETE WH ICH EV E R IS N OT AP PLICA BLE
(1) RE PORTAB LE:~O
(2) OF INTEREST TO OTHER JUDGES : ~NO
(3) REVISED
DATE: 25 A ugust 2025
SIGNATURE :
In the matter between:
SELLO , ABRAM DITONKANA
SELLO , POTEGO
And
SOUTH AFRICAN PHARMACY COUNCIL
Coram : MillarJ
Case No . 073747/2024
FIRST APPLICANT
SECOND APPLICAN T
RESPONDENT

Heard on:
Delivered:
It is Ordered:
19 August 2025
25 August 2025 -This judgment was handed down electronically by
circulation to the parties' representatives by email, by being uploaded
to the CaseLines system of the GD and by release to SAFLII. The
date and time for hand-down is deemed to be 12HOO on 25 August
2025.
ORDER
[1] The application is dismissed.
2
[2] The applicants are ordered to pay the respondent's costs as between party and
party which costs are to include the costs consequent upon the engagement of
two counsel, one of whom is a senior. Such costs are to be on scale C .
JUDGMENT
MILLAR J
[1] The applicants are pharmacists. The respondent is their professional controlling
body. On 10 July 2024, the present application was launched. In it, the applicants
seek orders:

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[1.1] Reviewing and setting aside the decision of the respondent to institute
disciplinary proceedings against the applicants.
[1.2~ That the disciplinary proceedings against the applicants are commenced
in 2023 are irregular and must not proceed any further.
[1.3] For costs of the application.
[2] On 19 May 2021, a monitoring inspection was conducted at Lakefield Pharmacy,
the pharmacy of the applicants. This resulted in an A grading being granted to
that pharmacy. Usually, such inspections are conducted and when a grading is
awarded, it is valid for a period of 3 years from that date.
[3] On 17 March 2022, a disciplinary inspection was conducted at the pharmacy.
This was conducted by Mr. David Bayever of the respondent. It was prompted
by complaints that had been received relating to what was said to be
unprofessional conduct at the pharmacy. The purpose of the investigation was
threefold:
[3.1] Firstly, to "investigate whether the pharmacy is conducted without a
pharmacist".
[3.2] Secondly, "to investigate whether the pharmacy is conducted by an
unregistered and unqualified person."
[3.3] Thirdly, to "conduct a full monitoring inspection."

4
[4] Mr. Bayever prepared a report relating to his inspection and recorded that,
"Augustine P Se/lo phoned Abram Se/lo (his father) and after a lengthy discussion AP
Se/lo told me that the instruction stands that I was to remove myself from the premises
and not to continue with the inspection as instructed by the Responsible Pharmacist
Abram Se/lo".
[5] Following on Mr. Bayever's report, the Committee of Preliminary Investigation
(CPI) of the respondent, met on 5 May 2022 to discuss the matter. A discussion
of various charges was placed on the agenda, and it was resolved that the matter
be held in abeyance until the next meeting of the CPI.
[6] On 19 May 2022, a joint disciplinary inspection was conducted by Ms Karsten of
the respondent and Ms Seabi of the South African Health Products Regulatory
Authority (SAHPRA) . In consequence of this joint inspection, the grading of the
Lakefield Pharmacy was changed to C grade. A detailed report was prepared by
Ms Karstens setting out her findings and this was submitted to the respondent.
[7] On 25 May 2022, the registrar of the respondent, wrote to the applicants and
detailed the nature of the complaints and findings arising out of the disciplinary
inspection conducted by Ms Karsten and afforded them 21 days to respond in
writing to the letter. No response was received. within the 21 days.
[8] On 20 July 2022, the CPI met and after having considered the complaints against
the applicants, resolved that these be referred to a Committee of Formal Inquiry
(CFI). It is this committee that conducts the disciplinary inquiries.
[9] On 9 August 2022, the applicants' attorney addressed a letter to the respondent
in which he indicated that he had been handed the respondent's letter of 25 May

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2022 together with the annexures to it. In the letter, the attorney recorded that
"In respect of the contents of the inspection report as well as the memorandum by Ms
Karsten, our client (sic) vehemently deny that the contents are factually correct. Had Mr.
P Se/lo been invited to comment on the contents of the report shortly after Ms Karsten
conducted the inspection, Mr. Se/lo would have given substantive comments which
would have been recorded to demonstrate why the inspection report is not in order. "The
letter went on to record that "our client will defend any charges on the basis of the
flawed report".
[1 OJ Almost 10 months later, the respondent replied to the applicants' attorney. In the
reply, the applicants were informed that it was the respondent's intention to set
the matter down for hearing. The applicants were informed that it was anticipated
that the hearing would be towards the end of June. On 6 June 2023, notice to
attend a formal inquiry before the CPI on 12 July 2023 was sent to the applicants.
The notice set out 12 charges.
[11] On 12 July 2023, the applicants attended the hearing. After the case for the
respondent was closed, the hearing was postponed without a date. On 5 O ctober
2023, notice was given for the continuation of the hearing on 28 November 2023.
The hearing resumed an at that hearing, the applicants applied to stay the
proceedings to afford them an opportunity to serve an application for review .
[12] The application was granted conditionally on the basis that the review application
be served within 1 week failing which the hearing would resume on 13 December
2023. A review application was subsequently served, and the hearing did not
proceed on 13 December 2023. However, thereafter on 23 January 2024, the
review application that had been delivered was withdrawn. Thereafter, on 10 July
2024 the present review application was launched.
(13] The crux of the complaint by the applicants is that while initial disciplinary

(13] The crux of the complaint by the applicants is that while initial disciplinary
inspection of Mr. Bayever had apparently been precipitated by two complaints,

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the applicants were not afforded an opportunity to answer those complaints or
the report of Mr. Bayever. Similarly, they had not been afforded an opportunity
to address the findings of Ms Karsten. Another cause of concern for the
applicants was that at the hearing, only Ms Karsten had been called by the
respondent and neither the two complainants nor Mr. Bayever.
[14] It was argued by the applicants that the failure to give them an opportunity to
address the complaints before a decision had been taken by CPI to refer them to
a formal disciplinary inquiry was an egregious subversion of their right to
procedural fairness before their statutory regulator. In other words, they ought to
have been given an opportunity to explain before being called upon to attend the
disciplinary enquiry on 12 July 2023.
[15] It is not in dispute that the disciplinary enquiry has not been concluded or that no
finding has been against the applicants. Despite this, the applicants seek to
review and set aside the decision of the CPI and consequently, if this order is
granted, vitiate the pending proceedings.
[16] It was argued on behalf of the applicants, that the present review application was
not brought in terms of the Promotion of Administrative Justice Act1 (PAJA) but
that it had been brought in terms of the common law read together with Rule 53
of the Uniform Rules of Court. The argument in this regard as set out in the heads
of argument and in Court, was at odds with what had been said by the applicants
in their supplementary affidavit. I deal with this below.
[17] The argument for the applicants was that their right to procedural fairness,
guaranteed in section 33 of the Constitution2 had been breached. This breach
manifested in the failure of the respondent to afford them an opportunity to
1 3 of 2000.
2 The applicants referred in this regard to Fedsure Life Insurance and Others v Greater Johannesburg
Transitional Council and Others 1999 (1) SA 1998 (CC) at para [56].

7
address and interrogate each complaint or report as and when it was received.
The failure to afford them the opportunity to do this was, so it was argued, an
affront to their right to procedural fairness.
[18] The respondent argued that the application is stillborn. The respondent
advanced several arguments as to why this was so. Pertinently, the respondent
argued that despite the volte face of the applicants in their heads of argument
and in the argument before Court, the applicants had in fact brought their
application in terms of PAJA.
[19] In the applicants' supplementary founding affidavit, the applicants assert that "The
respondent's decision too (sic) institute disciplinary proceedings against Applicants
constitutes administrative action by a juristic person performing a public function in terms
of the Pharmacy Act 53 of 1974 and the relevant Regulations." This assertion was
made under the heading "Promotion of Administrative Justice Act 3 of 2000."
[20] In their replying affidavit, the applicants assert that "The applicants reference to the
Provisions to the Promotion of Administrative Justice Act 3 of 2000 is contained in
paragraph 15 of the supplementary affidavit which paragraphs are clear on the
significance of the Act. The Provisions of the Act are relevant insofar as applicants (sic)
a right to administrative action that is lawful, reasonable and procedurally fair".
(21] It is common cause that the present application was brought outside of the 180-
day period referred to in section 9(1) of PAJA and that there has been no
application for condonation.

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[22] That PAJA is of application in the present case is my mind without question. In
this regard in Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Tourism and Others, 3 the Constitutional Court held:
"In Pharmaceutical Manufacturers Association of SA and Another: In re Ex parte
President of the Republic of South Africa and Others, the question of the
relationship between the common -law grounds of review and the Constitution was
considered by this Court. A unanimous Court held that under our new
constitutional order the control of public power is always a constitutional matter.
There are not two svstems of law regulating administrative action - the common
law and the Constitution - but onlv one system of law grounded in the Constitution.
The Courts' power to review administrative action no longer flows directlv from the
common law but from PAJA and the Constitution itself. The grundnorm of
administrative law is now to be found in the first place not in the doctrine of ultra
vires nor, in the doctrine of parliamentary sovereignty, nor in the common law itself,
but in the principles of our Constitution. The common law informs the provisions
of PAJA and the Constitution, and derives its force from the latter. The extent to
which the common law remains relevant to administrative review will have to be
developed on a case by case basis as the Courts interpret and apply the provisions
of PAJA and the Constitution." [My underlining]
[23] In Asia Construction (Pty) Ltd v Buffalo City Metropolitan Municipality,4 it was held
that before any decision could be made on the merits of a review, consideration
had to be given to an application for condonation and for the extension of the time
referred to in section 9 of PAJA.
3 2004 (4) SA 490 (CC) at para (22].
4 2017 (6) SA 360 (SCA ) at paras (10] to (13]. See also Opposition to Urban Tolling Alliance v South
African National Roads Agency Ltd (2013] 4 ALL SA 639 (SCA) at paras [41] and (43].

9
[24] In the present case, there is no application for condonation and for that reason,
the merits of the review need not be considered. The failure to apply for
condonation is fatal and for this reason the application must fail.
[25] Regarding costs, it was argued for the respondent that it was a necessary
precaution for it to have briefed two counsel, one of which is a senior. It was
argued that as a statutory regulator, the consequences of an adverse order
against it would be serious and would impact its ability to carry out its statutory
mandate. It was argued for this reason that if successful, costs should include
the costs of two counsel on scale C. I am persuaded that the engagement of more
than one counsel, one of whom was a senior was in the circumstances a
reasonable precaution.
[26] In the circumstances, I make the following order:
[26.1] The application is dismissed.
(26.2] The applicants are ordered to pay the respondent's costs as between
party and party which costs are to include the costs consequent upon
the engagement of two counsel, one of whom is a senior. Such costs
are to be on scale C.
HEARD ON:
A MILLAR
JUDGE OF THE HIGH COURT
GAUTENG -DIVISION, PRETORIA
19 AUGUST 2025

JUDGMENT DELIVERED ON :
COUNSEL FOR THE APPLICANTS:
INSTRUCTED BY:
REFERENCE :
COUNSEL FOR THE RESPONDENT :
INSTRUCTED BY:
REFERENCE:
25 AUGUST 2025
MR. LESOMO
LESOMO & ASSOCIATES INC.
MR. T LESOMO
ADV. B LEECH SC
ADV. K VAN HEERDEN
WERKSMANS INC.
MR. N KIRBY /MS . S PHAKATHI
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