Washington D.C. — According to Sheila Sisulu, South African Ambassador to the United States, her government has always been willing to talk with pharmaceutical companies opposed to 1997 legislation permitting the import of inexpensive generic drugs into her country.
"We have been saying: 'Tell us what is the problem with our legislation and we're prepared to fix it.' But there is a bottom line: We need to have access to a whole range of medicines. It's not only for HIV/AIDS. Many people who have died with HIV/AIDS have died from opportunistic diseases."
According to local and international drug companies, that bottom line - access to inexpensive drugs - means the loss of their intellectual property rights; they began legal proceedings as soon as the legislation was signed into law by then-president Nelson Mandela.
The Pharmaceutical Manufacturers Association of South Africa (PMA), which actually brought the case to court, argues that the law gives the Minister of Health power to override patent rights protected by international law. This threatens future research and corporate profits, drug companies say.
But Sisulu is confident that the government is on safe ground: "We think our law is in line with World Trade Organization regulations to ensure that we respect intellectual property rights," she says. "The WTO allows for this kind of intervention." One of every 10 South Africans is HIV-positive - the kind of extreme situation in which rules may need to bend a little.
Inside and outside of South Africa there is general agreement that the case will have far-reaching effects, especially in developing nations. On Tuesday, Kenya's Minister of Health said that East African nation is making plans to import cheap generic AIDS drugs, despite strong opposition from international pharmaceutical companies.
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Of the 25 million HIV-positive people living in sub-Saharan Africa, only 25,000 Africans (0.001 per cent) receive the anti-retroviral drugs which prolong life but are extremely expensive and only generally affordable in rich nations like the United States.
The drug companies seem to be playing a delaying game, suggests Ambassador Sisulu. "In the last 3 years there has been all sorts of 'stuff' going on like 'Oh, we're postponing....' or 'we're suspending....' effectively dragging out the legal proceedings. It's meant," she says, "that we have not been able to implement the law."
"This legal challenge is a warning to other developing countries that many within the world's pharmaceutical industry will use any tactic to defend their patents, whatever the cost in human suffering," the organisations, Oxfam and Médecins Sans Frontières (MSF), said in a statement on Monday.
On Monday at the Pretoria High Court, Judge Bernard Ngoepe postponed the case yet again, until 18 April, in response to a request by lawyers for the drug firms for time to prepare a response to a non-governmental organisation (Treatment Action Campaign) whom the Judge agreed could join the case as a 'friend of the court' in support of the government.
The government will press forward with this issue as long as necessary, says Ambassador Sisulu. "We should be able to access medicines on the basis of what... we can afford, not by somebody-else determining what we should and can afford. We know how deep our pockets are, and they're not that deep."
