The Supreme Court of Appeal has reaffirmed that the making of regulations by a Minister acting in terms of a statute constitutes administrative action within the meaning of the Promotion of Administrative Justice Act, 2000.  This means that such regulations can be challenged if they are outside the powers of the Minister under the enabling legislation (ultra vires), or if they are irrational or unreasonable in relation to their purpose.

In order to make a so-called abstract challenge by someone not immediately affected by unlawful administrative action, it is necessary to show that the applicant has the legal standing to challenge the validity of the provisions and, secondly, the applicant must show that the provisions are constitutionally unsound or invalid merely on the face of the regulations.

In this case the court found that regulations published under the Medicines and Related Substances Act, 1965 were unlawful to the extent that they applied to complementary medicines and health supplements that are not medicines or scheduled substances regulated under the enabling act.  The interesting findings in that regard will be dealt with in a separate blog.

The Minister of Health and SAHPRA v The Alliance of Natural Health Products (South Africa) [2022] ZASCA 49 (11 April 2022)