The
background facts, which are largely common cause in this matter, are as
follows:
On
12 July 2010, the appellant applied to the respondent, in terms of the
Medicines and Allied Substances Control (Gloves) Regulations S.I.1 of 2006. The
appellant sought regulatory approval of Muller and Vale Latex examination
gloves, Batch Number 003050001000, which the appellant intended to distribute
in Zimbabwe for medical purposes. The gloves were subjected to tests and
failed. The respondent directed the appellant to destroy the entire batch save
for 1,980 boxes that had already been authorized by the respondent to be
supplied to Harare Hospital. The appellant wrote to the respondent seeking
permission to return the gloves to the manufacturer and obtain a replacement
batch. The respondent declined to grant permission but re-affirmed its decision
to direct that the gloves be destroyed.
The
appellant appealed against the directive to the Administrative Court. The
Administrative Court dismissed the appeal wherefore the appellant has appealed
to this Court.
The
only issue which arises for determination during this appeal is whether or not
the finding by the court a quo that the respondent had the power to order
destruction of the gloves was a correct finding.
The
court a quo, having found that once the respondent had formed the opinion that
it was not in the public interest that the gloves be availed to the public, it
(the respondent) was entitled to prohibit the sale, supply or delivery of the
gloves to any person for any reason whatsoever. The court a quo held that the
respondent was accordingly empowered to order destruction of the gloves on the
basis that such destruction was 'reasonably incidental' to the respondent's
power to ensure 'that the gloves are not available to the public for any
reason'.
The
relevant section of the Medicines and Allied Substances Control (Gloves)
Regulations S.I.1 of 2006, is section 12. Section 12 of the Medicines and
Allied Substances Control (Gloves) Regulations S.I.1 of 2006 provides as
follows:
“Where
the authority is of the opinion that the withdrawal of any batch of gloves is
necessary for the protection of the public, the Authority may require any
person to withdraw such batch of gloves in accordance with the procedure as
determined by the Authority.”
A
reading of this provision reveals that it was never the intention of the
legislature to confer upon the respondent the power to order destruction….,. The
Medicines and Allied Substances Control (Gloves) Regulations S.I.1 of 2006
simply empower the respondent to prescribe a procedure for the withdrawal of
the gloves from the market for the protection of the public. The court a quo
misinterpreted the provision by holding that the power to destroy faulty gloves
could be inferred from the Regulations.
The
power to order destruction ought not to be lightly inferred from the Medicines
and Allied Substances Control (Gloves) Regulations S.I.1 of 2006. This
principle was affirmed by BEADLE CJ in Van Heerden v Queen's Hotel (Pty) Ltd
1973 (2) SA 14 (RAD)…, where he said:
“Courts
are extremely loath to read into an Act words which are not there. They will
only do so, when not to do so, will lead to an absurdity so glaring, that it
could never have been contemplated by the legislature.”
Had the
legislature intended such a drastic measure it would have said so expressly in
either the Act or the Regulations. It is clear from similar provisions of other
enactments that, where the legislature intends to confer the power to destroy
articles, it has expressly said so. For example section 12(1) of the Foods and
Foods Standard Act [Chapter 15:04] authorizes, unless good cause is shown, the
destruction of food found to be prohibited for sale or manufacture for sale.
Section 27(4) of the Public Health Act [Chapter 15:09] authorizes a local
authority to destroy any article that cannot be disinfected for the purpose of
preventing the spreading or eradication of any infectious disease.
It
is apparent that where the legislature has deemed that the goods or articles,
as the case maybe, should be destroyed, the legislature has expressly provided
for such power. Furthermore, the legislature has also laid down a form of
judicial control where the party whose products are to be destroyed, is
approached by the authorities, to show cause why the goods may not be
destroyed. This approach is in keeping with principles of fairness and natural justice.
It
was held In re: Munhumeso & Ors 1994 ZLR 49 (SC):
“That
derogations from rights and freedoms which have been conferred should be given
a strict and narrow, rather than a wide, construction. Rights and freedoms are
not to be diluted or diminished unless necessity or intractability of language
dictates otherwise.”
For
the court a quo to hold that destruction is 'reasonably incidental' to the
respondent's power to ensure 'that the gloves are not available to the public
for any reason' was a misdirection. This Court is of the view that the power to
order destruction cannot reasonably be inferred in casu.
A
proper construction of the purpose and scope of the powers conferred upon the
respondent shows that the Regulations do not support an inference in favour of
a power authorizing destruction of the gloves. It sets out a procedure for the
withdrawal of the gloves from the market of medical consumers. It is clear from
the language used that the purpose of this provision is to provide measures to
regulate and preserve the existence of the gloves and not their destruction.
In
the circumstances, it follows that the order of the court a quo cannot stand.
Accordingly, it is ordered as follows:
1.
The appeal is allowed with costs.
2.
The order of the court a quo is set aside and the following substituted:
“(i)
The appeal be and is hereby allowed with costs.
(ii)
The respondent's directive to the appellant, dated 6 September 2010, that it
destroys Muller Vale Latex Examination Gloves, Batch Number 003050001000 (the
Gloves), be and is hereby declared to be unlawful and is hereby set aside.”
