E-drug: South African court case (cont)
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A few updates:
1. Several international organizations and governments have said strongly
that measures such as compulsory licensing and parallel importation
of medicines are permitted under the TRIPS Agreement, but none have
taken a position on the South African legislation per se (except WHO,
which supported South Africa and then withdrew its support).
2. The PMA acknowledged in court that parallel importation is allowed
under South African common law, but still contends that the relevant
section (15C) is overly broad, allowing the Minister of Health undue
discretion. Of course, this argument is hard to make now that it has
been shown that 15C was drawn largely from a model law proposed by
the World Intellectual Property Organization.
3. It's too early to say what the judge will say. Although I firmly
believe that the government will win, there is always the possibility
that the ruling could say that some of the provisions are
unconstitutional under South African law and so require redrafting.
4. There was a question raised by the judge of whether or not the case
could even be heard given that the Act had not entered into force,
but this point will be debated when the case resumes in April.
Toby Kasper
MSF
South Africa
Toby Kasper <tobyk@mweb.co.za>
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