Johannesburg — On Wednesday morning, a landmark court case is set to resume in the South African capital, Pretoria, that could make legal history. The case pits the South African government against thirty-nine of the world's leading pharmaceutical companies. The controversial issue is patented - and frequently costly - drugs versus cheaper generic versions.
The multinational drug companies, and the Pharmaceutical Manufacturers' Association of South Africa (PMA), are taking the Pretoria government to court to fight a law that would allow the South African authorities to import or manufacture generic copies of patented, often live-saving, drugs in certain circumstances. The South African legislation would allow the government to circumvent the patents.
The case began last month but was postponed for six weeks to allow the South African Treatment Action Campaign, an AIDS' activist organisation, to address the court on the high cost of patented medicines for millions of South Africans who cannot afford them. The PMA was also given leave to gather information on international drug pricing issues .
The battle lines are drawn.
The pharmaceutical companies are crying foul, saying that they must block the South African law because they believe it effectively violates their ownership of drug patents and their intellectual property rights. The drug multinationals add that such infringement could undermine the funding of future scientific research.
The counter argument runs that developing countries, including South Africa, cannot afford the prohibitive cost of patented medication, including treatments for HIV/AIDS. Supported by AIDS' activists, the Pretoria government argues that the Medicines and Related Substances Control Amendment Act is essential for the authorities to meet their constitutional duty to provide affordable and sustainable health care to millions of South Africans.
The former South African president, Nelson Mandela, stepped into the fray at the weekend in an outspoken declaration that was sharply critical of both the authorities in Pretoria and the drug companies. He said that considering the current situation in South Africa "the government is perfectly entitled to resort to generic drugs, and it is a gross error for the companies, for the pharmaceuticals, to take the government to court".
Mandela, a Nobel peace laureate, added that "the pharmaceuticals are exploiting the situation that exists in countries like South Africa - in the developing world - because they charge exorbitant prices which are beyond the capacity of the ordinary HIV/AIDS person. That is completely wrong and must be condemned".
He also criticised the South African government for not doing enough to woo the drug companies, who own the patents on vital medicines, to negotiate affordable prices. "I want also to say that we must also take responsibility for not doing sufficient work to persuade these pharmaceuticals to change their approach", said Mandela.
Although modern AIDS' drugs were not the initial reason for the court case, they have swiftly become the central focus. International law has taken a back seat as the case, which began on 5 March, was transformed into an impassioned social debate on the question of life and death. Four years ago, when the South African government began drawing up the new drugs' law that has landed it in court, not a single mention was made of HIV or AIDS.
Government statistics now show that ten percent of South Africans are HIV positive. Only a minute percentage of those infected with the virus, or living with AIDS, can afford the appropriate drugs.
President Thabo Mbeki of South Africa has courted criticism and stirred considerable controversy because of his discourse with dissident scientists who question or refute the link between HIV and AIDS and because of his administration's policies on drug treatment. The South African government, which is being taken to court by the pharmaceutical companies, has so far refused antiretroviral drugs to pregnant women and most other people living with HIV and AIDS.
For President Mbeki, the self-styled champion of Africa and other developing continents that cannot afford the costly drugs imposed by wealthy nations, the court case could become a political debate. If the South African government should win the case, then the question remains, will Mbeki change his mind and authorise antiretroviral medication for AIDS' sufferers in his own country?
In his declaration, Mandela concluded, in what many have interpreted as a clear message to President Mbeki and his government: "There is nothing as important as dialogue in trying to resolve problems".
The former South African leader's final message to the drug companies and their adversaries, who are preparing to return to court in Pretoria, was almost a plea. "If we have a clear and connected plan to persuade the pharmaceuticals to settle, and to charge prices which are affordable to the masses of the people, I am sure that the result would be positive".
That argument is seconded by leading non-governmental organisations, including local and international AIDS' campaigners, who are putting pressure on the drug multinationals to drop their court case against the South African government. This would open the way for the production and/or importation of cheap versions of patented medication, including AIDS' drugs.
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The pharmaceutical companies have been portrayed as profiteers who are ruthlessly allowing people to die in South Africa, and elsewhere the developing world, as they quibble about money. It is an image they are keen to shed, while maintaining the position of plaintiff.
People living with HIV and AIDS in South Africa have been demonstrating outside the headquarters of the Pharmaceutical Manufacturers' Association for the past week. As the case returns to court in Pretoria on Wednesday, they will continue their protest and organise a picket outside the Supreme Court. The British charity, Oxfam, is planning a mock trial in the city. The governing African National Congress will be demonstrating in support of the authorities.
In the past six weeks, many of the global pharmaceutical giants have offered to slash the cost of their AIDS' drugs to poor countries. Humanitarian organisations, AIDS' campaigners and, notably, the South African government, say most of the proposed discounts are not enough. Activists question whether the prices being offered by the drug companies are indeed cost price, arguing that that generic manufacturers are selling their products about 50 percent cheaper.
