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23 S. Afr. J. on Hum. Rts. [i] (2007)

handle is hein.journals/soafjhr23 and id is 1 raw text is: SOUTH AFRICAN JOURNAL ON HUMAN RIGHTS VOLUME 23 PART 1 2007 CONTENTS Page PHARMACEUTICAL PRICE REGULATION Kerry Williams I Pharmaceutical price regulation is highly politicised, both globally and in South Africa. As a result misinformation and rhetoric is common. Regulators (whose duty it is to represent the public interest) face difficult policy decisions and are subject to pressure from all stakeholders. Despite these challenges, complex economic and legal solutions may be employed to ensure the accessibility of affordable medicines in the developing world. The nature of the pharmaceutical industry gives rise to unique economic problems which may be resolved through Ramsey optimal pricing (also referred to as differential pricing) which allows pharmaceutical manufacturers to price according to the price sensitivity of consumers, thereby ensuring that poorer consumers can afford essential medicines. This must be done within the legal flexibilities of the TRIPS Agreement. This article examines the theory of differential pricing, how it is constrained by TRIPS and how it is beginning to be implemented by way of international agreements and through specific policy choices made by national regulators. Examples from Europe and South Africa are considered and criticised. The European tiered pricing regulation offers the possibility of accessible and affordable medicines in the developing world but is vastly underutilised. South African law and policy makers ought to consider the principles of differential pricing in greater detail so that it may be worked into the current regulatory framework. In the interim, there is some potential in the possibility of granting compulsory licences. ON THE CONSTITUTIONALITY OF SINGLE-MEDIUM PUBLIC SCHOOLS Brahm Fleisch and Stuart Woolman 34 The Constitution of the Republic of South Africa, 1996 allows the creation of independent educational institutions and permits such institutions to enforce admissions policies that discriminate between learners who wish to participate in the affairs of a given linguistic and cultural community and those who do not wish to participate in or advance that community's vision of the good life. When it comes to public schools, however, the state's tolerance for discriminatory language policies of any kind is extremely limited and rightly inclines in favour of the language preferences of learners from historically disadvantaged communities. A proper reading of s 29(2) of the Constitution supports the following propositions. First, all learners have the right - where practicable - to receive an education in their preferred language of instruction. Second, where a sizeable cohort of learners does not have ready access to a public school that offers them adequate instruction in their preferred medium of instruction, neither the School Governing Body nor the principal of a single-medium school can exclude such a cohort of learners by means of an admissions policy that seeks to privilege a particular language. Third, although s 29(2) recognises that single-medium schools are an acceptable form of public schools, the Constitution's commitment to equity and historical redress means that the right of all learners to a basic education in their preferred language of instruction at public schools will generally trump any individual school's pre-existing preference for linguistic homogeneity. Only where sufficient resources exist to ensure that the cohort of South African learners in question will receive an adequate, and for all intents equal, education in their preferred language of instruction at another public school will the state be obliged to accommodate a single-medium school's desire to remain linguistically homogeneous. A FRESH LOOK AT LIMITATIONS: UNPACKING SECTION 36 Kevin lies 68 The wording of the general limitations clause in s 36 of the Constitution of the Republic of South Africa, 1996 differs from that used in its predecessor, the interim Constitution.

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