The applicant has been conducting
business as a Wholesale Dealer in medicines and pharmaceutical products since
2002. Such business is conducted by virtue of a Wholesale Dealer's Permit
issued by the respondent and is valid for a period of 1 year. Accordingly, the applicant
is enjoined to renew that permit annually before it expires. The applicant's
last permit, No.02193, expired on 31 March 2009 without the applicant
submitting an application for its renewal.
By letter dated 30 April 2009,
the respondent notified the applicant of the expiry of the Wholesale Dealer's Permit.
The applicant responded by letter of 6 May 2009 apologising for failure to
renew its permit and seeking an indulgence to submit a renewal application and
pay the requisite fee out of time. By letter dated 13 May 2009, the respondent
acceded to the request and gave the respondent until 31 May 2009 to submit the
application. That letter reads, in part, as follows:
''RE: AUTHORISATION TO PAY RENEWAL FEES BY 31ST
MAY 2009
We refer to the representations
you made to the Authority in your letter dated 6 May 2009 with respect to the
extension of the deadline for payment of renewal fees for wholesale dealer's
permits.
The matter was tabled at a
meeting of the Legal Committee held on the 13th May 2009. The
Committee considered it unacceptable that you waited until the Authority had
written to you regarding the lapsing of your permit before you came forward
with your representations.
The Committee, however, noted the
compelling reasons you put forward i.e that there would be no prejudice to the
Authority should the full renewal fees be paid in full by the 31st
May 2009. The committee therefore agreed to extend the period of renewal of
your permit to 31st May 2009, on condition that the full renewal fee
of US$1,750= subject to the payment of the renewal fees in full by that date
(sic). Thereafter, the Authority will not entertain any further discussion on
this matter.''…,.
There is need to dispose of the
implications of that letter before going further. There is no provision in both
the Medicines and Allied Substances Control Act [Chapter 15:03] and the Drugs
and Allied Substances Control (General) Regulations S.I.150 of 1991 which
empower the Authority to extend the renewal date of an expired permit. The
purported extension was therefore a legal nullity from which nothing flowed.
Be that as it may, the applicant
failed to submit an application for renewal - even after the extension. Instead, the applicant busied itself with
forging a Wholesale Dealer's Permit and trading using the forged permit. Its
luck ran out in October 2009 when an inspection was carried out at its premises
and it was discovered that the applicant had supplied medicines using that
forged permit. The applicant then quickly deposited the renewal fee of US$1,750=
into the respondent's account and submitted an application for renewal in Form
D.C 7 dated 26 October 2009 attached to a letter of the same date in which it
argued that it had failed to meet the 31 May 2009 deadline because the
notification of the extension was only sent by email on 29 May 2009.
It is pertinent to note that this
was the first communication the applicant sent to the respondent since the
letter of 13 May 2009 giving the extension of time. Also, it was the first time
that a formal renewal application was made since the permit expired on 31 March
2009. The respondent did not entertain the application and requested applicant's
banking details in order to refund the money paid by the applicant unsolicited.
Section 3(1) of the Administrative Justice Act
[Chapter 10:28] provides:
''An administrative authority
which has the responsibility or power to take any administrative action which
may affect the rights, interests or legitimate expectations of any person shall
-
(a) Act lawfully, reasonably and in a fair manner; and
(b) Act within the relevant
period specified by law, or, if there is no such specified period, within a
reasonable period after being requested to take action by the person concerned;
and
(c) Where it has taken the
action, supply written reasons therefore within the relevant period specified
by law, or, if there is no such specified period, within a reasonable period
after being requested to supply reasons by the person concerned.''
Section 4 of the Administrative
Justice Act [Chapter 10:28] allows any person who is aggrieved by the failure
of an administrative authority to comply with section 3 of the Administrative
Justice Act [Chapter 10:28] to apply to this Court.
Counsel for the applicant
submitted that the respondent has failed to make a decision on the application
for a permit since the application was made in May 2009. She went on to submit
that the applicant had a legitimate expectation that a permit will be issued
and accordingly it is entitled to the relief provided for in section 4 of the
Administrative Justice Act [Chapter 10:28]. When it was drawn to her attention
that no application was made at all until October 2009, she took the view that
the representations made by the applicant, in the form of letters, should be
taken as an application. In her view, the applicant should be issued with a
permit. She relied on the case of N & B Ventures (Pvt) Ltd t/a Nesbitt
Castle Hotel v Minister of Home Affairs & Another 2005 (1) ZLR 27 (H) in
which CHEDA J ordered the release of liquor which had been forfeited to the State
for trading without a licence because the licensing authority had taken two (2)
years to renew a liquor licence.
In my view, that case is clearly
distinguishable from the present in that the applicant had submitted a formal
application for renewal but the liquor licensing Board had taken two (2) years
to renew the licence. In this case, no application for renewal of the permit
was made at all until the permit expired.
To say that representations made by the applicant in May 2009 amounted
to an application is simply disingenuous and cannot be taken seriously.
In terms of the Medicines and
Allied Substances Control Act [Chapter15:03], and the Regulations, an
application for a renewal of a permit can only be made before the expiration of
the permit. Section 60 of the Medicines and Allied Substances Control Act
[Chapter15:03] reads:
“(1) A licence issued in terms of
this part shall, unless cancelled or suspended, be valid for such period as may
be prescribed and may be renewed before its expiry.
(2) An application for the
renewal of a licence shall be made in such form and manner and within such
period as may be prescribed and shall be accompanied by such fee as may be
prescribed.''
The spirit of those provisions is also captured in the
Regulations, S.I.150 of 1991 as amended.
A Wholesale Dealer's Permit is issued in terms of
section 23 of the Regulations, S.I.150 of 1991.
Section 24 of the Regulations, S.I.150 of 1991, provides:
''Any permit issued in terms of section 23 or renewed
in terms of section 29 shall be valid for a period of one year from the date of
its issue or renewal as the case may be.''
Section 29 of the Regulations, S.I.150 of 1991, reads;
''(1) A permit issued in terms of section 23 may be
renewed before its expiry.
(2) Any person who wishes to renew his permit issued
in terms of section 23 shall make an application to the Registrar in triplicate
in Form D.C. 7.''
It is apparent that an
application for renewal of a permit can only be made in Form D.C.7 accompanied
by the prescribed fee. No such application was made by the applicant before its
permit expired on 31 March 2009. The communication between the parties which
came after that did not constitute an application for renewal which the respondent
was required to consider.
A permit cannot be renewed after
it has expired. Can it therefore be said that the applicant had a legitimate
expectation that its permit would be renewed in May 2009 or in October 2009
when it submitted Form D.C.7 with the renewal fee?
The law does not protect every
expectation it only protects a ''legitimate'' one. National Director of Public
Prosecutions v Phillips 2002 (4) SA
60 (W).
It was stated in Administrator v Traub 1989 (4) SA 731
(A)…, that:
''Legitimate or reasonable
expectations may arise either from an express promise given on behalf of a
public authority or from the existence of a regular practice which the claimant
can reasonably expect to continue.''
In Health Professions Council v Mcgown 1994 (2) ZLR
329 (S)…, GUBBAY CJ stated:
''In short, the legitimate
expectation doctrine, as enunciated in Traub,
simply extended the principle of natural justice beyond the established concept
that a person was not entitled to a hearing unless he could show that some
existing right of his had been infringed by the quasi-judicial body (see at 761
D-F). Fairness is the overriding factor in deciding whether a person may claim
a legitimate entitlement to be heard. (See 758 G-759 A).''
The applicant had been renewing
its Wholesale Dealer's Permit from 2002 in accordance with the provisions of
both the Regulations, S.I.150 of 1991, and the Medicines and Allied Substances
Control Act [Chapter15:03]. At no time was he allowed to renew the permit after
it had expired or without submitting Form D.C.7. Therefore, there was no
general promise that renewal would be made out of time. Even the specific
promise to renew the permit if the application was made before 31 May 2009,
which I have declared a nullity, was not complied with.
There was really nothing the respondent
was expected or required to do. For that reason the remedy provided for in
section 4 of the Administrative Justice Act [Chapter 10:28] as read with section
3 of the Administrative Justice Act [Chapter 10:28] is not available to the applicant.
Accordingly,
the application is dismissed with costs.
