Media Statement from the Independent Community Pharmacy Association of South Africa:
“ICPA Triumphs Over Clicks – A Tale of David and Goliath”
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ICPA (Independent Community Pharmacy Association) is an organization which provides independently owned community pharmacies with a collective strength and a coherent voice that is heard by government, medical schemes, pharmaceutical suppliers and importantly, the consumer.
ICPA represents one of the largest pools of professionals in the healthcare sector with over 1 200 pharmacies, about 3 500 pharmacists and 20 000 supportive healthcare personnel spread across metropolitan, urban and rural South Africa.
ICPA continues to have as its purpose the protection of the integrity of pharmacy and the providing of the best quality healthcare to patients. ICPA continues with this fight as is evidenced below.
Constitutional Court Judgment 28 March 2022
Following a protracted legal battle in the Western Cape High Court and the Supreme Court of Appeal (SCA) between ICPA and the Clicks Group, ICPA on 22 September 2022 argued the case on pharmacy ownership and patient rights before the apex court.
The Pharmacy Act empowers the Minister of Health to prescribe who may own a pharmacy and the conditions under which such person may own a pharmacy. Regulation 6(d) of the Ownership Regulations is to the effect that any person who owns a community pharmacy may not also own or be the holder of any direct or indirect beneficial interest in a manufacturing pharmacy. The mischief which Regulation 6(d) intends to cure is in ICPA’s view very clear: one may not simultaneously have ownership or a beneficial interest in both a community pharmacy and a manufacturing pharmacy. The obvious purpose of the regulation was to ensure that pharmacists do not have a vested interest in the medicines which they dispense or recommend.
ICPA won in the High Court but lost 4-1 in the SCA. In the dissenting judgment by Makgoka JA in the SCA, ie not the majority judgement, it was held that
“Another danger is that if pharmacies are permitted to create their own affiliated manufacturers whom they control, directly or indirectly, they would directly be involved in setting prices and have strong incentives to keep those prices high. There is an inherent conflict of interest when a pharmacist is employed and remunerated by an entity which forms part of a group which also owns or has an interest in a manufacturing entity. The high court further pointed out, an entity having interests in both types of pharmacies would gain financially if the manufacturing pharmacy’s products are promoted by the pharmacists in the community pharmacies over other products. This could result in consumers not getting the best quality product at the best price. Products which are not strictly needed might be recommended and sold. The conflict of interest could also result in the manufacturing pharmacy favouring community pharmacies belonging to the same group above outside or independent pharmacies. This might affect the availability of products to customers.”
On 28 March 2023, the Constitutional Court through Justice Rogers, writing the judgment for the majority, agreed with ICPA. He states that:
“The preference for a more generous interpretation is fortified by the Constitution. I have already mentioned the injunction in Section 39(2) of the Bill of Rights. Section 27(1) of the Bill of Rights guarantees to everyone, amongst other things, the right to have access to healthcare services. In terms of Section 27(2), the state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right. The dispensing of medicines by community pharmacies is an important part of health care services. An interpretation which promotes more effectively the best interests of the clients of the community pharmacists should be preferred over one which gives greater scope for perverse commercial incentives. There is nothing in the spirit, purport or objects of the Bill of Rights which pulls in the other direction.”
Accordingly, the Constitutional Court held that Clicks are in contravention of sec22A of the Pharmacy Act read with Regulation 6(d) of the Ownership Regulations. ICPA were awarded their legal costs in the Constitutional Court and the Supreme Court of Appeal.
ICPA for years argued that a conflict of interest or temptation might exists within the Clicks Group as Clicks owns more than 600 pharmacies and also owns a manufacturing pharmacy, Unicorn Pharmaceuticals. The temptation for Clicks Pharmacies to actively promote their own brands at the possible expense of patient care was forefront in this argument. The Constitutional Court agrees with ICPA.
ICPA is morally mandated to keep on fighting for the best interest of pharmacy patients. ICPA will continue to lobby the necessary authorities to bring about an industry that remains driven by the desire to serve the communities wherein they trade. Pharmacy is not a business, it’s a profession guided by ethics, and it requires individuals with enduring qualities to remind the industry of the purpose which pharmacy serves. The purpose of healthcare and being the first point of call to ill patients, especially in these dire economic times.
We will now be investigating our options in respect of the sanctions that the Director General of Health may impose on Clicks. Whether that be the closing of Pharmacies or a fine, is too early to tell.
We will further report this judgment to various other statutory bodies and request that they investigate other corporately owned pharmacies who might indeed be falling foul of Pharmacy Legislation and Regulations
ICPA would also like to recognise the sterling work of its legal team, VanderSpuy Cape Town led by Charles van Breda and Yaseen Carriem, and the Advocate Team of Jeremy Muller SC, Johan de Waal SC and Alfred Cockrell SC. Hard work and late nights have paid off and paved a new dawn for pharmacy.
ICPA, once upon a time a David, now a giant in its own right.
About ICPA
ICPA (Independent Community Pharmacy Association) is an organization which provides independent community pharmacies with a collective strength and a coherent voice that is heard by government, medical schemes, pharmaceutical suppliers and importantly, the consumer.
ICPA represents one of the largest pools of professionals in the healthcare sector with over 1 200 pharmacies, about 3 500 pharmacists and 20 000 supportive healthcare personnel spread across metropolitan, urban and rural South Africa.
The objective of ICPA is to assist and support its members in securing a sustainable and successful future as independent, owner-managed pharmacies.
In addition to this, the ICPA strives to foster an understanding of the role that independent pharmacies can (and do) play in delivering important healthcare services to the communities that they serve. All ICPA members are committed to high-quality pharmacist care and to the restoration and maintenance of the health and well-being of the consumer – the lifeblood of all pharmacies.
