This is an archive of the Treatment Action Campaign's public documents from
December 1998 until October 2008. I created this website because the TAC's
website appears unmaintained and people were concerned that it
was becoming increasingly hard to find important documents.
The menu items have been slightly edited and a new stylesheet applied to the site. But none of the documents have been edited, not even for minor errors. The text appears on this site as obtained from the Internet Archive.
The period covered by the archive encompassed the campaign for HIV medicines, the civil disobedience campaigns, the Competition Commission complaints, the 2008 xenophobic violence and the PMTCT, Khayelitsha health workers and Matthias Rath court cases.
I the undersigned
ABDURRAZACK "ZACKIE" ACHMAT
hereby affirm and say :
THE PURPOSE OF THESE PROCEEDINGS
The HIV/AIDS pandemic in South Africa has been described as "an incomprehensible calamity" and "the most important challenge facing South Africa since the birth of our new democracy" and government’s fight against "this scourge" as "a top priority". It "has claimed millions of lives, inflicting pain and grief, causing fear and uncertainty, and threatening the economy". These are not the words of alarmists but are taken from a Department of Health publication in 2000 and a ministerial foreword to an earlier departmental publication.
THE WORK OF THE TAC
"2.2 The TAC will remain independent of government and the pharmaceutical industry." (ZA1)
THE TAC’S CAMPAIGN AGAINST DRUG COMPANIES FOR ACCESS TO MEDICINES
NATIONAL AND INTERNATIONAL RECOGNITION OF THE TAC AND ITS WORK
The ASA complaint
Notwithstanding the ruling of the Advertising Standards Authority the Rath Foundation and the Traditional Healers Organisation are using SANCO, with whom our client previously enjoyed a good relationship, to spread information contrary to public health interests about the efficacy of anti-retrovirals and in particular AZT.
This disinformation is coupled with defamatory allegations about the TAC.
The first Sowetan advertisement (also published in Business Day)
The second Sowetan advertisement (also published in City Vision)
The third Sowetan advertisement
The Respondents’ community disinformation and defamation campaign
First Respondent’s website
DEFAMATORY NATURE OF THE FIRST RESPONDENT’S STATEMENTS
FALSENESS OF THE CLAIMS
A PATTERN OF CONDUCT
THE BASIS AND NEED FOR AN INTERIM INTERDICT
It acts in the public interest by securing the effective enforcement of the constitutional rights that are at issue in this matter.
This affidavit is structured as follows:
First, I explain the TAC’s position on the Regulations Relating to a Transparent Pricing System for Medicines and Scheduled Substances ("the pricing regulations"), published in Government Notice R553 of Government Gazette No. 26304 dated 30 April 2004.
Second, I set out the basis of the TAC’s support of government’s attempts to regulate the price of medicines in the private sector.
Last, I describe the relevant background relating to the TAC’s involvement in legal developments relating to the pricing regulations.
TAC’s position on the pricing regulations
At the outset, I would like to stress that the TAC continues to welcome government’s efforts to increase access to medicines, an integral part of the right of access to health care services, entrenched in section 27 of the Constitution.
The TAC supports the full and proper implementation of the Medicines and Related Substances Act, 101 of 1965 ("the Medicines Act"), as amended by the Medicines and Related Substances Control Amendment Act, 90 of 1997 ("the Medicines Amendment Act, 90 of 1997") and the Medicines and Related Substances Amendment Act, 59 of 2002.
In general, the TAC supports the implementation of a pricing system that has the potential significantly to increase access to affordable medicines for all people in South Africa. In particular, the TAC recognises that a transparent pricing system is a necessary tool, in a range of regulatory tools available to the state, for ensuring that medicines are sold at affordable prices. In the TAC’s view, and as recognised in part 4 of the National Drug Policy of 1996, a transparent pricing system is essential for the state to "promote the availability of safe and effective drugs at the lowest possible cost".
As amicus curiae, however, the TAC seeks only to advance legal argument in respect of regulations 10 and 12 of the pricing regulations, that purport to give effect to section 22G(2)(b) of the Medicines Act, concerning "an appropriate dispensing fee". The TAC submits that regulations 10 and 12 infringe the rights guaranteed in section 27 of the Constitution.
I wish to stress that, save for regulations 10 and 12, the TAC supports the substance of the remaining regulations and is concerned that, if they are set aside, the result will be severely prejudicial to the public in that access to affordable medicines will be further limited. Our heads of argument, focusing on these issues, are filed together with this affidavit.
Previous TAC affidavit in this matter
On 31 May 2004, Mr Jonathan Berger, the Head of the Law & Treatment Access Unit of the ALP, was telephoned by Dr Anban Pillay, the director of Pharmaceutical Economic Evaluations in the Department of Health ("the department"). Dr Pillay requested the ALP to depose to an affidavit in support of the state’s defence of the pricing regulations in the urgent application launched by New Clicks South Africa (Pty) Ltd in the Cape High Court under case no. 4128/04.
On the same day, the ALP received an electronic copy of a letter from Dr Pillay, a copy of which is annexed hereto, marked "ZA2". In his letter, Dr Pillay wrote: "Should you agree with our point of view it would be appreciated if you could provide us with an affidavit that confirms the postponement of the Regulations would seriously affect consumers."
Mr Berger subsequently explained to Dr Pillay that it would be appropriate for the requested affidavit to be deposed to on behalf of the TAC and not the ALP. The matter was thereafter brought to the attention of the TAC and I was duly authorised to depose to an affidavit on its behalf. A copy of my affidavit ("the June affidavit") is annexed hereto, marked "ZA3". I confirm that the contents of that affidavit are true and correct. I repeat the submissions made in the June affidavit and request that they be considered as part of this affidavit.
The June affidavit, affirmed by me on 1 June 2004, was delivered by hand on the same day to Ms Behardien of the State Attorney, the respondents’ attorney of record in the matter before the Cape High Court and in this Court.
In paragraph 16 of the June affidavit I stated the following: "While the TAC submits that the relief sought by the Applicant in paragraph 2 of its Notice of Motion should not be granted, it does so on the basis that it nevertheless views regulations 10 and 12 of the pricing regulations as unconstitutional and contrary to the public interest."
I have been advised that the June affidavit does not appear in the record of the proceedings in the Cape High Court.
The importance of regulating private sector prices
By seeking to expand access to private health care services through the reduction of medicine prices, the pricing regulations have the potential to relieve the burden on the public sector. This is increasingly important in the context of an expanding HIV/AIDS epidemic that is already placing extreme pressure on a weak public health system.
According to the South African Health Review 2003/04 ("the Review"), published by the Health Systems Trust, there are only 3.1 pharmacists employed in the public sector per 100 000 people. The Review further notes than in 2003, of 10 629 registered pharmacists in South Africa, only 1222 were in the public sector. In the country as a whole, there are only 22.9 pharmacists per 100 000 people. The norm proposed by the WHO for industrialised countries is 44 pharmacists per 100 000 people. A copy of the relevant chapter of the Review will be made available at the hearing of this matter if so required.
The chronic shortage of pharmacists in the public sector is one of the key reasons why users of the public health sector are often reliant on community pharmacies to access medicines. Because of this, the sustainability and viability of community pharmacies is essential in ensuring that an already weak public health system is not further overburdened. If community pharmacies are forced to close, it is unlikely that private pharmacists will join the public sector. The net result will be an even weaker public health system and less access to pharmaceutical services.
One of the measures introduced by government to relieve the burden on the public sector is the Medical Schemes Act, 131 of 1998, which provides that persons cannot unfairly be denied medical scheme cover on the basis of a number of grounds, including race, gender and state of health. That Act also guarantees that all members and beneficiaries of medical schemes are able to access a level of care that is not less than what is provided in the public sector. This is regulated through the provision of prescribed minimum benefits ("PMBs"). One of the ways of ensuring the sustainability of medical schemes and their continued ability to fund PMBs is by exerting downward pressure on the price of medicines in the private sector.
Many users of the public health system often have no choice but to purchase medicines from community pharmacies in the private sector. In some cases, this is because the medicines they need are not available in the public sector. Some essential medicines are unavailable in state hospitals and clinics, often because of their cost.
But, even where medicines are available in the public sector, they are often available only at hospitals and not at local clinics. Because of the distance, time and cost involved in accessing these medicines, people often rely on community pharmacies and/or dispensing doctors. In other cases, low wage earners cannot afford, or are unable to take time off from work, to wait in long queues at state pharmacies located in public health facilities.
Most people who are reliant on the public health system and who need ARV medicines are not yet able to access such treatment. As a result, employer-funded workplace and not-for-profit community treatment programmes currently provide the only source of ARV access for them. For example, the TAC Treatment Project was set up in ____ to treat TAC members as well as other people in their communities who cannot afford to buy ARV medici
History of TAC’s involvement in this matter
There is a real need for this matter to be dealt with expeditiously by all parties concerned. The public interest not only requires certainty in relation to the issues before this Court, but also that everyone’s right of access to health care services is both defended and promoted.
ABDURRAZACK "ZACKIE" ACHMAT
SIGNED AND AFFIRMED BEFORE ME IN THE PRESCRIBED MANNER AT CAPE TOWN ON THIS DAY OF MARCH 2005NOVEMBER 2004, THE DEPONENT HAVING STATED THAT HE HAS CONSCIENTIOUS OBJECTIONS TO TAKING THE OATH AND THAT HE REGARDS THE AFFIRMATION AS BINDING ON HIS CONSCIENCE.
COMMISSIONER OF OATHS