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In December the Supreme Court of Appeal ordered that the newly introduced medicine pricing regulations be "declared invalid and of no force and effect".
The order came after an appeal by a group of pharmacists who had failed in their Cape High Court bid to have the regulations, introduced last year, overturned on the grounds that the health minister had acted beyond her powers in drawing them up.
The regulations limit pharmacists' dispensing fees to R26 an item, ban discounting and set prices at a "single exit price."
Intended to make medicine cheaper and its pricing more transparent, the regulations have been rejected by many pharmacists who say the low dispensing fee will put them out of business and does not cover their overheads.
The matter has been in court several times with regulations being suspended and re-enacted and then finally declared invalid, creating confusion among the public who have been forced to pay "administration" fees on top of dispensing fees and levies before being given their medication.
In a further twist, the department of health claims that the regulations are actually still in force, in spite of the SCA order, because there is a date set for the Constitutional Court to take the matter further.
The department warned all in the pharmaceutical chain that "the pricing regulations are effective as set under the Medicines and Related Substances Act. Therefore all stakeholders are expected to abide by the regulations until the Constitutional Court makes a final decision".
Department spokesman Solly Mabotha said this conclusion was based on the advice of a team of state attorneys "and it doesn't get much better than that".
However, lawyers Webber Wentzel Bowens, say the opposite and are supported by the United South African Pharmacies (USAP) which believe that the possibility of suspending the SCA's decision only arises after the Constitutional Court actually hears the parties' arguments for or against leave to appeal.
When asked for clarity on which law should be in force, Judge Fritz Brand, one of the SCA judges who made the order told Sapa: "The position is not absolutely clear."
Rhodes University law lecturer Rosaan Kruger told Sapa that Rule 49(11) of the Uniform Court Rules regulates the procedures of the high court.
She said that without direction, the courts could revert to common law, in which case they would probably suspend the order until it is decided whether leave to appeal should be granted.
Meanwhile, consumers are faced with a confusing set of pricing regimes.
Clicks, who were part of the bid to have the regulations cancelled, have decided now to apply the very regulations they opposed.
