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[2026] ZAGPPHC 457
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SSA Acoustics and Specialised Inspections (Pty) Ltd v South African Health Products Regulatory Authority (2026-076504) [2026] ZAGPPHC 457 (29 April 2026)
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IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
No: 2026-076504
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED.
DATE:
29/04/2026
SIGNATURE
In
the matter between:
SSA
ACOUSTICS & SPECIALISED INSPECTIONS
Applicant
(PTY)
LTD
and
SOUTH
AFRICAN HEALTH PRODUCTS
Respondent
REGULATORY
AUTHORITY
JUDGMENT
The
judgment and order are published and distributed electronically.
PA
VAN NIEKERK, J
[1]
On 2 April 2026 Retief J granted an
order calling on the Respondent to show cause, if any, on Tuesday 8
June 2026 why the interim
relief granted in terms of paragraph 11 of
that order should not be made final pending the final written
determination of the Applicant’s
renewal applications.
Paragraph 11 of the order reads:
“
11.
The Respondent is directed, pending its final written determinations
of the Applicant’s renewal applications
to,
within
12 hours
of service of this order, issue the Applicant
with an interim written authority, as envisaged in terms of
section
3A(2)
of the
Hazardous Substances Act 15 of 1973
, as amended, as a
means to facilitate interim regulatory control, in order to authorise
the Applicant, on an interim basis, to
possess, store, use, convey
and/or cause to be conveyed the Group IV hazardous substances as it
previously held under its expired
authorities, on the same terms and
conditions as those authorities, alternatively on such reasoanble
assitional conditions as the
Respondent may lawfully impose strictly
for interim regualtory control”.
[2]
Apart from the rule
nisi
as contained in paragraph 11 of the order, the following order was
also made:
“
13.
In the event that the Respondent fails to provide the written interim
authority as directed in paragraph 11
for whatever reason, the
Applicant shall, pending the outcome of the rule nisi referred to in
paragraph 12 hereof or pending the
outcome of the application if
anticipated in terms of paragraph 15 hereof or pending final written
determinations of its renewal
applications if made prior to the 8
June 2026 or prior to the date of anticipation, be entitled to
continue to possess, store,
use, convey and/or cause to be conveyed
the Group IV hazardous substances previously held under the
Applicant’s expired written
authorities, on the same terms and
conditions as previously applicable and as previously authorised by
the Respondent and, the
Respondent during this time, shall be
interdicted and restrained from:
13.1.
taking any enforcement step against the Applicant founded solely upon
the expiry of the
Applicant’s previous written authorities;
13.2.
treating the Applicant’s previous written authorities as having
lapsed for purposes
of enforcement pending the Respondent’s
final determination of the Applicant’s renewal applications;
13.3.
demanding surrender, seizure, or, cessation of custody of the
radioactive sources presently
in the Applicant’s possession;
and
13.4
interfering with, prohibiting, or impeding the Applicant’s
continued safe possession,
storage, conveyance, and use of the
relevant Group IV hazardous substances in accordance with the terms
previously applicable thereto;
14.
Pending the return day in paragraph 12, this order shall operate as
an interim order with immediate
effect.
15.
The Respondent is afforded leave, on or before the return day, to
anticipate the return day, upon no
less than 24 hours’ written
notice to the Applicant’s attorneys”.
[3]
The aforesaid order follows on averments
made by the Applicant in the founding affidavit that the Applicant
applied for the renewal
of a lapsed licence issued by Respondent in
terms of the Hazardous Substances Act 15 of 1973 (“
HSA
”).
The licence lapsed on 31 March 2026 and, at the date of the launch of
the application, the Respondent has not made final
written
determinations in respect of such renewal application. Applicant sets
out in the founding affidavit that, absent such a
licence, the
Applicant’s day-to-day activities in relation to certain
hazardous substances constitutes criminality.
[4]
In the order, Retief J found that the
powers provided to the Director General of the Respondent in terms of
section 3A(2) of the
HSA caters for applications of persons who seek
written authority to,
inter alia
,
possess and deal with Group IV hazardous substances. It was held that
such authority exists, apart from the power vested in the
Director
General to issue licences on application in terms of section 4. In
consequence, so it was held, in certain circumstances
as amplified in
the sub-section of section 3A(2) dealing with employees, the ability
to apply for written authority, supported
the Applicant’s
counsel’s contention that the Respondent possesses such
statutory power to entertain authority in certain
circumstances on
application and, in these circumstances, when directed by the Court,
must issue a written interim authority to
the Applicant pending its
own written final determinations.
[5]
Retief
J. further held that, in the unlikely event that the court was
incorrect regarding the interpretation of section 3A(2) of
HSA, then
a
lacuna
in the provisions of the HSA exists, catering for a justifiable
remedy for the Director General to assist both the Applicant and
itself. The learned judge further held that the Applicant, as a
result of such
lacuna,
is forced into a situation where it unintentionally and without
mala
fides
attracts the possibility of criminal sanction and the Respondent was
urged in the order to finalise its decision within the reasonable
time period of 60 days. In that regard Retief J further found that
the Court exercised its inherent power when it granted the order
having regard to all the present circumstances brought to its
attention and having regard to the provisions of the HSA.
[1]
[6]
On 22 April 2026 Respondent served a
“
Notice of anticipation in
terms of Rule 6(8)”
which
reads as follows
:
“
BE
PLEASED TO TAKE NOTICE that the Respondent hereby anticipates, in
terms of Rule 6(8), the return day of the rule nisi issued
on 1 April
2026 by the Honourable Madame Justice Retief, presently enrolled for
hearing on 8 June 2026
”.
[7]
The Respondent filed an answering
affidavit in support of that application which can be summarised as
follows:
[7.1]
It disputes certain factual averments to
the extent that the Respondent avers that the licence of the
Applicant lapsed because the
Applicant failed to submit the necessary
documentation in support of the application for renewal of the
licence timeously or at
all;
[7.2]
The affidavit elaborates on the
interpretation of the relevant statutory provisions and seeks to
display that the order of Retief
J is wrong and based on a
misinterpretation of HSA, resulting therein that the Respondent
cannot comply with that part of the order
which deals with interim
authority to be granted by Respondent to the Applicant.
[8]
In the opposing affidavit the Respondent
inter alia
makes the following averments:
[8.1]
That the order of Retief J was
“
escalated
”
internally and on 10 April 2026 it was decided that the rule
nisi
should be anticipated and the matter
be opposed;
[8.2]
That an opposing affidavit was prepared
and finalised on 20 February 2026.
[9]
In my view the Respondent’s
attempt to anticipate the return date and bring this application on
an urgent basis before this
Court should fail, for the following
reasons:
[9.1]
Rule 6(8) of the Uniform Rules applies
to an order that was granted
ex
parte
. The order of Retief J was not
granted
ex parte
but granted after service of the application on Respondent. From the
Respondent’s opposing affidavit it appears that a senior
employee was present when the matter was dealt with by Retief J,
virtually on CaseLines, and provided submissions on the
interpretation
of the relevant statutory provisions. In my view, the
provisions of Rule 6(8) of the Uniform Rules of Court is not
available to
Respondent
in casu
;
[9.2]
It was submitted on behalf of Applicant
that the application to anticipate the return date is in form brought
under Rule 6(8), but
in substance an application in terms of Rule
6(12)(c). I agree. It is thus incumbent on the party who invoke the
provisions of
Rule 6(12)(c) to display the required urgency.
[9.3]
There is no proper explanation in the answering affidavit why the
order which was granted on 2 April
2026, to the knowledge of an
employee of the Respondent, is anticipated only now and on the roll
of this Court during a week containing
only 3 Court days with
extremely short notice to the Applicant. In my view, insofar as any
measure of urgency exists, it was purely
self-created by the
Respondent;
[9.3]
The
substance of the issue between the parties clearly relates to an
interpretation of the provisions of the HSA. Whether or not
the
Director General has the power, based on an interpretation of HSA, to
extend the validity of a lapsed licence is an important
issue based
on an interpretation of the provisions of HSA. It is not incumbent
upon the Urgent Court to determine issues which
requires careful
consideration and potential complex legal issues, and which may have
an important legal effect, because such matters
cannot be properly
ventilated in the urgent court by virtue of the nature of urgent
court .
[2]
[10]
There is no reason why this matter
cannot be disposed of on the return date, in the normal course with
due allowance to the parties
and the Court to consider the proper
interpretation of HSA in order to arrive at a just determination of
the issues.
In
the result, the matter is struck off the roll and Respondent is
ordered to pay the wasted costs.
P A VAN NIEKERK
JUDGE OF THE GAUTENG
DIVISION,
PRETORIA
APPEARANCES
FOR APPLICANT
ADV S
Aucamp
INSTRUCTED BY
GOVENDER PATEL
DLADLA INC.
RESPONDENTS
ADV
C Chabalala
Instructed
by Koikanyang Inc.
[1]
Paragraph 8 of the order of Retief dated 2 April
2026.
[2]
Graduate
Institute of Financial Sciences (Pty) Ltd v Insurance Sector
Education and Training Authority (GJ) Case No. 134433/2023
(16
January 2024).