The Politics of National Intellectual Property Policy Design and the Provision of Health Services in South Africa

• Date: 24 May 2019
• Pages: 15-39
• Citation: (2015) IPLJ 15
• Published date: 24 May 2019
• Author: Caroline Ncube

THE POLITICS OF NATIONAL

INTELLECTUAL PROPERTY POLICY

DESIGN AND THE PROVISION OF

HEALTH SERVICES IN SOUTH

AFRICA



Professor, Depart ment of Commercial Law, University of Ca pe Town

  

The position that states take in the international sphere on health and

            



health diplomacy.1 This paper seeks to examine how th is iterative relationship

has played out in South Africa in relation to patents, pharmaceuticals and

access to medicines. It has be en shown how the main Afr ican health

          

and ubuntu’, ‘liberation ethic and demands of nationhood’ and ‘development

aid or development policy’ which are outlined in Part 2 below.2 This paper

focuses on how these narratives have found expression in national discou rse.

In particula r, it considers a recent inter change between the Minister of Health

and a pharmaceut ical company association in relation to their views on the

draft National Intellectual Proper ty (IP) Policy’s chapter on IP and public

health.3 Th is incident was quickly dubbed PharmaGate and was t he subject of

much media and social commentary. However, it has not yet been subjected

to scholarly analysis of the nature adva nced in this paper. There a re other

lenses through which to v iew PharmaGate, s uch as corporate monop olisation

   

the National Rese arch Foundation of South Af rica (NRF). Any o pinion, finding a nd conclusion

or recommend ation expressed in th is material is that of th e author and the NRF doe s not accept

any liability i n this regard.

1 ‘Global health diploma cy brings together the dis ciplines of public health, inte rnational affairs,

management, l aw and economics and focuse s on negotiations that shap e and manage the global

policy environ ment for health in health and no n-health venues. It relates in p articular to health

issues that cr oss national bo undaries , are global in na ture and req uire global ag reements to

address th em’ per I Kickbusch et a l (eds) Global Health Diplom acy Concept s, Issues, Actor s,

Instrume nts, Fora and Cases (2 013) vi.

2 Rene Loewenson e t al ‘African per spectives in global healt h diplomacy’ (2014) 1(2) Journal of

Health Diplomacy.

3 Draft Nationa l Policy on IP 2013 General Not ice 918 of 2013 Government Gazette 36816 of 4

September 2013.

15

(2015) IPLJ 15

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in the context of global capitalism. However, these are beyond the scope of

this paper, which limits itself t o the African perspectives mentioned above.

To foreground PharmaGate, it is import ant to note that the public, health

professionals, pharmaceutical companies (phar ma), civil society and

government or political actors i n South Africa have been engaged in patent

       

cases this engagement has resulted in litigation. For example, in 1998 the

Pharmaceutical Ma nufacturer s Association (PMA) and 39 internat ional

pharmaceutical companies brought an application in the high court to halt

the implementation of part of the Medici nes and Related Substances Cont rol

Amendment Act.4 This legislation ha d been enacted in 1997 to amend t he

Medicines and Related Substance s Control Act, 1965, in order to ‘ensure

the supply of more affordable medicines’ through providi ng for parallel

importation, gene ric substitution and setting up a prici ng committee amongst

other related measures. 5 The matter was set down for hearing on 5 Ma rch 2001

      6

The Treatment Action Campaign (TAC) was granted permission to join the

litigation as amicus cur iae by the court on 6 March 2001, despite opposition

from the PMA.7     

      

annual hall of shame, the Sp ecial 301 list.8 However, this matter was ult imately

settled between the pa rties and withd rawn from cour t in April 2001.9 An

agreement was also reached between the South African and US governments

that led to the removal of South Afr ica from the USTR 301 list.10 Thereafter,

the government promulgated the ne cessary parallel importation reg ulations,11

4 The Phar maceutic al Manufactur ers Associat ion & others v Th e President of th e Republic of

South Afric a & others, case no 4183/98, High Cour t of South Afr ica (Transvaal P rovincial

Divi sion).

5 Sect ions 15C, 22F and 22G of the Medicin es and Related Substa nces Control Ame ndment Act 90

of 1997.

6 For a detaile d account of these events s ee Mark Heywood ‘Debun king “Conglomo-t alk”: A case

study of the ami cus curiae as an i nstrument for advo cacy, investigation and mobi lisation’ (2001)

5(2) La w, Democracy & Developme nt 133 139–144. Also see Willia m W Fisher III & Cyrill P

Rigamonti ‘Th e South Africa A IDS controversy: A c ase study in pat ent law and policy’, available

at http://cyber.law.harva rd.edu/peo ple/tfisher/S outh%20Africa .pdf (viewed on 23 Septe mber

2015); Susan Cleary & Don Ros s ‘The 1998–2001 legal str uggle betwe en the South Af rican

government a nd the inter national pha rmaceutic al industr y: A game-theoretic analysi s’ (2002)

27 Journal of Soc ial, Political and Econ omic Studies 445; Solomon Fran k Sacco ‘A comparative

study of the imple mentation in Zimbabwe and South A frica of the internat ional law rules that

allow compulsor y licensing a nd parallel im portatio n for HIV/AIDS drugs’ (2005 ) 5 African

Human Rights LJ 10 5.

7 Heywood (n6) 146 –151.

8 Colin Darch ‘Politics, law and discou rse: Patents a nd innovation i n post-apar theid South

Africa’ in Mat thew David & Debora H albert (eds) The Sage Han dbook on Intellect ual Property

(2014) 8.

9 Heywood (n6) 156.

10 Caroline B Ncube ‘En forcing patent rights a gainst goods in tr ansit: A new threat to tr ansborder

trade in gen eric medicines’ (2009) 21 SA Merc LJ 680 6 91.

11 The Genera l Regulations, Medicin es and Related Substances Reg ulations Government Gazette

24727 GN R510 of 10 April 2003 (date of commence ment 2 May 2003).

16 South African Intellectual Property Law Journal (2015) 3

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