Update on the South African court case PMA vs SA government (2)
---------------------------------------------------------------
In this update:
* SABC news - March 6
Protesters demand Glaxo-Wellcome withdraws support for case against
government
http://www.sabcnews.com/SABCnews/south_africa/health/0,1009,11931,00.html
* SABC news - March 6
Napwa members arrested after protest over cheaper Aids drugs
http://www.sabcnews.com/SABCnews/Article/print_whole_story/0,1093,11947,00.html
* E-Drug - March 6
Press Release - TAC enters court
http://www.healthnet.org/programs/e-drug-hma/e-drug.200103/msg00042.html
* SABC news - March 6
High court grants Aids campaign group special status
http://www.sabcnews.com/SABCnews/Article/print_whole_story/0,1093,11949,00.html
* The Guardian - March 7
Pretoria pressures drug giants
http://www.healthnet.org/afronets/afronets-hma/afro-nets.200103/msg00033.html
--
Opinion (for reprints see below):
Yesterday the fate of the court case in Pretoria of the South African
pharmaceutical association (PMA) versus the South African government
appeared to be sealed:
(i) the WTO, WHO, EU and US had given their approval that South Af-
rica's act is conforming with the TRIPS,
(ii) the PMA had acknowledged in court that under the South African
common law the act would be legal,
(iii) at most the outcome of the judgement would be a rephrasing of
what defines an unaffordable medicine,
(iv) and formally the case could be simply dismissed since the South
African Head of government hasn't yet signed the act!
One could have only hoped that the pharmaceuticals would have either
withdrawn from the case hoping to appear as "grands seigneurs" and
secure some extra points on their stokes, and that Pres. Mbeki would
have signed the act next week. That would have been the end of a very
sad story having denied during 4 years the right to medicine to South
African HIV victims and caused confusion on the African continent on
which approach to adopt towards patented AIDS-drugs.
But the case has taken a radically different course. The Treatment
Action Campaign (TAC) has been invited to join the court case. The
case will resume from 18 to 26 April, 2001, to give time to the PMA
to prepare itself.
The strength and the opportunities of a corresponding SWOT are known.
What remain fuzzy are the weaknesses and the threats of this new
turn.
The opportunity of this new situation is to show how HIV/AIDS victims
can play an active, positive and solemn role in dealing with the is-
sues related to the diseases.
The strength is the commanding and impressive work that the TAC,
COSATU, MSF, Oxfam, Consumer Project on Technology and other organi-
sations have done to raise awareness. Their actions honour us citi-
zens from all countries.
But a court is a court. And let us not rejoice too rapidly, we must
save for later those "pata pata" dances of victory as the way-out may
become somewhat longer. Let us inspect the weaknesses and threats.
- First the current stock exchange context should be kept in mind.
Western consumers are turning away from the Internet, the European
ICT is opposing the introduction of ePatents (patenting of software
and algorithms), China is developing a PC-operating system based on
Linux licensed under GNU (the free operating system that challenges
Windows-2000); this affects the technology market which has been
overquoted. Many dotcoms are closing and even large corporations such
as the German Telekom are hit by this bubble implosion.
Investors are therefore looking for a reliable index of the stock
market. Currently the Pharma/Chemistry stocks are considered to react
consistently and are praised. This is placing an extra focus on the
pharmaceutical stocks and thus generating more reluctance to examine
the "emotional" issues of AIDS-drugs related to the Pharma/Chemistry
market.
No one could blame a company to protect its assets; that is fair.
Thus on trade grounds it is difficult to blame the pharma industry to
have delayed the introduction of generic drugs in South Africa (and
by proxy in the whole African continent). Yet it is this very delay
that is so emotional: with 10% infected in South Africa, time is run-
ning and in order to quench the epidemic every day is counting.
By joining the court, the TAC could be presented by the PMA as the
cause for extra delays (and I am not saying that they do, of course
not, please keep in mind that this is a SWOT).
German and French pharmaceuticals who yesterday could have thought
"Time to go!" have yet a reason to stay as their investors want them
to be represented in court as watch-dogs and to further defend their
interests.
- The discourse of activists is by essence emotional. And many of
them have been highly critical of the South African President Mbeki
earlier. The PMA could turn to the TAC ask them about their opinion
on Mbeki. This is likely to influence a ruling in favour of the phar-
maceuticals, who have been describing the South African government as
playing a cat and mouse game by avoiding to set-up an agreement out-
side of court.
- Do remember that the consulting firms who advise pharmaceuticals
tend to overstaff their "R&I" (research and information) over profes-
sionals (per-diem consultants) in emerging economies (e.g. Africa,
Asia-Pacific); but their data isn't available to the public which
constitutes an extra handicap, doesn't it? Unless the TAC represented
in court, urgently request a "pro bono" consultation from a global
consultancy... thus further taking the risk of being regarded as the
cause for delaying the court judgement.
- Regarding research, despite its impressive work on TRIPS and bro-
kering a deal with CIPLA, Medecins sans Frontieres (MSF) has been ig-
noring the criticisms of the pharmaceuticals about future research
investments. I recall my "patent fair use" equation (see chapter 5 of
the "Prodigal genius" by John J. O'Neill, ed. Ives Wasburn, Inc, New
York 1944):
mergers + patent exception + research = Tesla vs. Westinghouse
But in court what will TAC answer re. research funds? Are they pre-
pared? Did they consult with all the senior chemistry professors of
Africa? What do they make of the Uganda President's proposal to in-
volve the OCDE in managing research funds for AIDS?
MSF as far as I can tell has no proposal on research, and the PMA
could highlight this weakness in court by asking the TAC. A judge
will listen to this argument and rule according to what has been said
*in court* or provided *to the court*. With all due respect to UNISA,
MEDUNSA, Stellenbosch, Witwatersrand, UCT, Potchefstroom, etc., the
South African government won't be able to answer much on research to
the court as research is an *inter-continental* issue not confined to
one country (I do write this with regrets since I am a strong sup-
porter of the marvellous education & research work undergone by all
the other universities of South Africa and of the African continent,
but a court case is not about giving encouragements, hellas!).
Even if the EU is no longer formally objecting the South African act,
do keep in mind that the EU does not want public research but re-
search partnership between industry and public laboratories. If the
TAC does not have a prepared argument on research, then the judge
*must* rule in favour of the pharmaceuticals who are *inter-
continental* research entities with partnerships with universities
world-wide. That's how justice goes...
- MSF has called for a therapy at 200 US$ per person per year. They
have shown that they can reach this goal soon (currently 350 US$).
However, will Africa, and specifically South Africa, be ready to en-
ter a generic global competition at this price level?
What will be the environmental and social costs of a generic produc-
tion at a very low price? Shanghai (China), for example, is marketing
itself as having lenient environmental laws and cheap workforce. The
result is alarming with rivers polluted, snails species disappearing,
women living within production plants under highly toxic conditions
with children, etc.
Cheap production in developing countries often means that workers
have to live away from their families to take these jobs, a situation
that is responsible for more prostitution and HIV-infections, unless
corporations start to actively promote a "want one, hire two" ap-
proach to employment.
Imports at low costs will also mean transports of chemicals by sea at
cheap rate, meaning sailors underpaid, ships under-equipped, and
eventually more sea pollution when accidents occur as they do.
If the PMA questions the TAC on these environmental and social conse-
quences of the generic production of drugs, this will also influence
the court.
- The emotional discourse would be more effective on "human rights"
grounds (at the International tribunal of the Hague) than in a court
case dealing with patents and trade.
My impression is that activists should increase the pressure on all
other related fronts.
I mentioned the bombing of a pharmaceutical plants in Africa (Sudan)
by the former US president.
Since it appears that these bombings use(d) depleted uranium (DU)
that may cause birth defects, the public should demand more independ-
ent research to explain the "Gulf syndrome" and the birth defects
among US veterans' children, and children in Iraq, Bosnia and Kosovo,
and to examine why the isotope analysis of depleted uranium debris
(isotopes 234U, 235U, 236U and 238U) reveals the unusual presence of
Uranium-236? Where does this 236U come from? Activists should ask who
will clean-up these highly toxic debris contaminated with 236U in
Kosovo, Bosnia, Iraq as it is currently quietly done in Kuwait?
The later may seem unrelated to the AIDS-drugs question, but please
keep in mind that the US invested 254 million dollars in the US-Army
in case of public unrest in Africa related to AIDS. Blocking the pos-
sibility of using aircrafts to drop DU-bombs, will force Western
countries in the event of public unrest to send ground troops, some-
thing that they are quite reluctant to do.
On the other hand, if France is afraid that the past involvement of
its chemical industry during the second World War obtains more expo-
sure with its implication for *trade* (especially given the circum-
stances of the disappearance of Bousquet, the mentor of the former
Pres. Mitterand during the Vichy government), and if Germany realises
that this AIDS-drugs issue could be perceived as an intention to deny
the right to live, then there will be concerns that a case could be
opened in the Hague against Western countries.
These aspects will help Western governments to act-up, to speak-up
and to pressure the pharmaceutical headquarters back at home.
Having said that for the sake of a SWOT, may I express my deep admi-
ration for the courageous stand of the TAC and the supporting role of
COSATU, MSF, Oxfam and the Consumer Project on Technology, and wish
them good luck in court next month 
Christian Labadie
mailto:CLabadie@t-online.de
http://nucwww.chem.sunysb.edu/prevges/sida.html
Note: the following articles are reproduced under fair use
--
Source:
http://www.sabcnews.com/SABCnews/south_africa/health/0,1009,11931,00.html
Protesters demand Glaxo-Wellcome withdraws support for case against
government
March 06, 2001, 02:45 PM
Hundreds of placard-carrying protesters congregated outside the prem-
ises of the Glaxo-Wellcome pharmaceutical company north of Midrand
today.
Protesters are demanding that a 20-strong delegation be allowed into
the building to hand over a memorandum as the company has not sent
out a representative to accept it.
At least 400 toyi-toying protesters blocked the main entrance to the
building, preventing employees inside the building from leaving.
Yesterday, 40 drug companies took the South African government to
court to fight a law that will make medicine cheaper but will
threaten their patent rights. The legal battle over whether South Af-
rica can import cut-price versions of generic treatments rather than
the more expensive brand drugs may have repercussions for millions of
people in poor countries, experts say.
Among the issues listed in the memorandum is a demand that Glaxo-
Wellcome withdraw its support from the case and bring down the price
of drugs, especially those for HIV/Aids. They complain they are un-
able to pay the exorbitant prices asked for HIV/Aids drugs.
The protest has been organised by the National Association for People
Living with Aids, a new organisation formed and based in Pretoria
with a branch in Springs, Gauteng. Their mission is to call on gov-
ernment to make drugs available to those people needing them, at
prices affordable to them.
The pharmaceutical companies on the complainants' list, among them
multinationals like Boehringer-Ingelheim, Glaxo-Wellcome and Merck
and Roche, say the act violates international law on trade and intel-
lectual property rights.
Police are maintaining a strong presence although there have so far
been no incidents.
Article printout courtesy of the South African Broadcasting Corpora-
tion.
Copyright (c) 2001 SABC.
Note: National Association of People Living With HIV and AIDS (NAPWA)
http://www.health.gov.za/hiv_aids/napwa.htm
--
Source:
http://www.sabcnews.com/SABCnews/Article/print_whole_story/0,1093,11947,00.html
Napwa members arrested after protest over cheaper Aids drugs
March 06, 2001, 06:53 PM
Police have arrested 20 members of the National Association for Peo-
ple Living with HIV/Aids (Napwa) on charges of trespassing today, af-
ter they apparently forcibly entered the premises of a pharmaceutical
company in Midrand, north of Johannesburg.
The protesters entered the premises after Glaxo Wellcome refused to
receive their memorandum which demanded the company withdraw from the
case against the government, currently being heard in the Pretoria
High Court.
Forty-one pharmaceutical companies are suing the government for vio-
lating patent rights after they introduced legislation, which will
make the drugs available at a cheaper price.
Article printout courtesy of the South African Broadcasting Corpora-
tion.
Copyright (c) 2001 SABC.
Note: National Association of People Living With HIV and AIDS (NAPWA)
http://www.health.gov.za/hiv_aids/napwa.htm
--
Source [Reproduced with thanks from E-Drugs]:
http://www.healthnet.org/programs/e-drug-hma/e-drug.200103/msg00042.html
PRESS RELEASE
ISSUED BY: COSATU, TAC, MSF, OXFAM AND CONSUMER PROJECT ON TECHNOLOGY
HIGH COURT ACCEPTS THE RIGHT OF PEOPLE WITH HIV TO BE HEARD
National and international organizations welcome the judge's deci-
sion.
PRETORIA, South Africa, 6 March 2001- National and international or-
ganizations today welcomed the South African High Court's decision to
accept evidence from the Treatment Action Campaign (TAC), which
represents people living with HIV.
Having been accepted as a 'Friend of the Court', TAC will give evi-
dence about how brand name medicines are unaffordable for millions of
people living with HIV in South Africa.
"For the first time, the pharmaceutical industry will have to justify
to South Africa and to the world why their drug prices are so high
and why their patents should be so aggressively protected, when mil-
lions of people are dying and cheaper drugs exist," said Zackie Ach-
mat, chairperson of the Treatment Action Campaign.
This follows a week of worldwide demonstrations in support of the
South African government, and calling on companies to drop the case.
Thousands of people from unions, churches, NGOs and people living
with HIV/AIDS took to the streets in Pretoria, Cape Town, and Durban.
"We thank the efforts of our members whose voices have ensured that
the courts have understood the importance of this matter," said Joyce
Phekane, Deputy President of COSATU.
International and national organizations however condemned the phar-
maceutical industry for first trying to block TAC's application, and
for then requesting a further four months to reply to the applica-
tion.
"The pharmaceutical companies have already delayed this case for
three years. Every day's delay means no affordable medicines and more
people dying," said Dr Eric Goemaere, Head of Mission for MSF's pro-
grams in South Africa.
The judge acknowledged that this case was of vital importance to peo-
ple in South Africa and around the world and only granted industry
three weeks to respond to TAC's application. The court case will re-
sume from 18 to 26 April, 2001.
TAC, COSATU, Medecins Sans Frontieres (MSF), Oxfam, and the Consumer
Project on Technology underlined they would continue to support the
South African government's position in this case.
For further information please call:
TAC - Zackie Achmat: + 27-83-467-1152;
COSATU - Siphiwe Ngcina + 27-82-821-7456;
MSF - Toby Kasper + 27-82-332-9713;
Oxfam - Matt Grainger + 27-82-445-3005;
Consumer Project on Technology - Jamie Love + 1-202-361-3040.
--
Source:
http://www.sabcnews.com/SABCnews/Article/print_whole_story/0,1093,11949,00.html
High court grants Aids campaign group special status
March 06, 2001, 07:16 PM
Bernard Ngoepe, Pretoria judiciary president, has granted the Treat-
ment Action Campaign (TAC) permission to become a "friend of the
court". This means that the TAC can present evidence on the high cost
of brand-name medicines for millions of people living with HIV/Aids.
Drugs companies have taken government to court to prevent it from im-
plementing a law that could override patent rights. The court case
has been postponed to next month.
"Comrades, I have to tell you they've granted us our application.
It's the first time the court will make drug companies explain how
they get to their prices," said Zachie Achmat, a TAC activist.
The ruling will ultimately strengthen the government's case while the
TAC's evidence supports government's objectives.
Drug companies say this ruling is prejudicial because the TAC's ap-
plication was late. The pharmaceutical companies argue that the ap-
plication raises new issues, for which they have not had time to pre-
pare. They asked that the case be postponed for four months but the
judge gave little over a month.
Ngoepe acknowledged that the ruling of this case was of vital impor-
tance to South Africa and the world. The case resumes on April 18.
The TAC says it views this ruling as a provisional victory for people
living with Aids. Many people affected by this pandemic however, are
expected to die during the one and a half month postponement.
Article printout courtesy of the South African Broadcasting Corpora-
tion.
Copyright (c) 2001 SABC
--
Source:
http://www.healthnet.org/afronets/afronets-hma/afro-nets.200103/msg00033.html
Pretoria pressures drug giants
Special report: Aids
Chris McGreal in Johannesburg and Sarah Boseley
Wednesday March 7, 2001
The Guardian
The giant pharmaceutical companies fighting to protect their drug
prices in South Africa's high court were yesterday ordered to reveal
the closely guarded secrets of their business practices, including
pricing policies.
The case brought by 39 drug companies in Pretoria to abolish a law
permitting the government to import cheap versions of their medicines
was adjourned for six weeks to give the industry time to gather its
material.
The ruling by judge Bernard Ngoepe, on the second day of the hearing,
will dismay the global industry, which has been notoriously secretive
of commercially sensitive information.
It is a major blow to the companies which already have a public rela-
tions disaster on their hands. There were demonstrations around the
world on Monday, protesting that the industry was putting profits be-
fore the lives of people dying with diseases that are treatable in
the west, such as HIV/Aids, and they appear to have lost interna-
tional political support. The German government has joined the United
States, European Union and World Trade Organisation in backing South
Africa's right to introduce the laws, and calling on the industry to
drop the lawsuit.
There are likely to be discussions behind the scenes at individual
companies over the wisdom of continuing the case, but the biggest,
GlaxoSmithKline, yesterday made it clear it felt the stakes were too
high to let it go.
"I don't think any of us [the drug companies] want to be there. It
doesn't help the industry and it doesn't help relations with the
South African government," said a spokesman in London.
"But this law is open to interpretation that the patent system could
be absolved in South Africa and that is a threat to the global patent
system." The drug firms are claiming in court that legislation per-
mitting the distribution of some imported generic drugs and other
cheaper medicines breaches their patents and South Africa's constitu-
tion.
Yesterday's court order came after the judge ruled that a group cam-
paigning for wider access to treatment for South Africa's 4m HIV-
positive people could make a submission as a friend of the court. The
Treatment Action Campaign, which has lobbied vigorously over the
price of drugs, said the decision gave a voice to the people who
stand to gain or lose most from the case. It intends to bring testi-
monials from people suffering from HIV/Aids and evidence about the
different prices set by the industry for its drugs around the world.
The drug companies, represented by the Pharmaceutical Manufacturers
Association (PMA), demanded a postponement of four months in order to
prepare a response. The judge effectively called the drug companies'
bluff. He agreed to put the hearings on hold for six weeks on condi-
tion the PMA responds point by point to the accusations in TAC's sub-
mission.
Mark Heywood of TAC said the ruling was unprecedented. "It's a very
significant victory. It's going to force them to answer questions
they have never had to answer before."
But the PMA's counsel, Fannie Cilliers, hinted that what he called
the "patent protected research industry" might prefer to keep its se-
crets, when he told the court he did not think there was enough time
to gather the necessary information from overseas.
The drug companies appear particularly concerned by questions about
their pricing policies.
The manufacturers allege that excessive mark-ups by retailers is re-
sponsible for the high cost of drugs in South Africa's private health
sector.
But the pharmaceutical firms refuse to reveal the prices they charge
chemists and other suppliers or how they compare to prices in other
developing countries and the west.
South Africa's stand has encouraged Kenya to follow suit. Yesterday,
the health minister, Sam Ongerim, said the government will introduce
legislation to permit the importation of cheaper generic drugs to
treat Aids under a clause in international patent laws allowing coun-
tries to respond to a national emergency.
"We cannot operate in a situation where we have an epidemic, a na-
tional disaster and being asked to keep on observing the interna-
tional patent law," he said.
Guardian Unlimited (c) Guardian Newspapers Limited 2001
--
Send mail for the `AFRO-NETS' conference to `afro-nets@usa.healthnet.org'.
Mail administrative requests to `majordomo@usa.healthnet.org'.
For additional assistance, send mail to: `owner-afro-nets@usa.healthnet.org'.