<P> The Constitutional Court held that the purpose of section 172 (2) (a) was to ensure that the Constitutional Court, as the highest court in constitutional matters, controls declarations of constitutional invalidity made against the highest organs of state . This purpose would be defeated, the court found, if the issue in casu, concerning the legality of the President's conduct (a matter of considerable importance), were characterised as not falling within section 172 (2) (a); that would be to remove it from the controlling power of the Constitutional Court . The section was, therefore, to be given a wide meaning as far as the President's conduct was concerned . </P> <P> The matter arose when the Transvaal High Court was requested to review and set aside the President's decision to bring the South African Medicines and Medical Devices Regulatory Authority Act 1998 into operation on 30 April 1999 . The purpose of the Act was to govern the registration and control of medicines for human and animal use, and to replace previous legislation dealing with these matters . The Act sought to control the flow of medicines on the market by classifying medicines into specific categories . In order to be effective, the Act required a comprehensive regulatory infrastructure, including the determination of schedules regulating the manufacture, sale and possession of substances controlled by the Act . The applicants (the President and others) alleged that, through an error made in good faith, the Act had been brought into operation before the necessary regulatory infrastructure had been put in place, and that, as a consequence, the entire regulatory structure had been rendered unworkable . The result would be highly damaging to the public in that control over dangerous medicines would be lost before the new schedules were in place . </P> <P> The matter was referred to the Constitutional Court by the High Court for confirmation of its order declaring the decision of the President to bring the Act into force null and void . The Constitutional Court, in a unanimous decision delivered by Chaskalson P, confirmed the order of the Transvaal High Court, but gave reasons that were different from those of the High Court . Two issues had to be decided by the Court . The first was whether or not the High Court's order, setting aside the President's decision, was a finding of "constitutional invalidity" that required confirmation by the Constitutional Court under section 172 (2) of the Constitution . If so, the second issue was whether the President's decision to bring the Act into force was constitutionally valid or not . </P> <P> Commenting on whether the High Court's order was a finding of "constitutional invalidity," the Court emphasised that the control of public power by the courts through judicial review is, and always has been, a constitutional matter . This is so irrespective of whether the principles are set out in a written Constitution or contained in the common law . </P>

Pharmaceutical manufactures in re the ex parte application of the president 2000 (2) sa 674 (cc)