The Pharmaceutical Manufacturers’ Association left the Pretoria High Court this week bloodied but unbowed in its battle against the government
Belinda Beresford
Who would have thought it would have been so brief, or so brutal? Certainly not the drug companies with their expensive lawyers, reams of legal papers and an attitude born of the reality that their combined worth is larger than that of many countries.
But then they had not counted on Pretoria’s Judge President Bernard Ngoepe. A quietly spoken man, he gave the drug manufacturers a bloody nose on the first day and appeared to have them rocking back on their heels by the middle of the second. They are by no means out, and will bounce back to fight again. But the cockiness is gone.
The case of the Pharmaceutical Manufacturers’ Association of South Africa (PMA) against the South African government has dragged on for three years. In dispute is the legality of the Medicines and Related Substances Control Amendment Act, which would allow the minister of health to take action to procure cheaper drugs for South Africa.
But over those three years the case has evolved, driven by the unstoppable force of the HIV/Aids epidemic that now affects, directly or indirectly, the whole of South Africa.
The court sat just a day and a half, but there was high drama as the PMA’s lawyer sought to bat away a shoestring activist operation, the Treatment Action Campaign (TAC). TAC had applied to become a friend of the court, giving evidence to the court on behalf of people living with HIV/Aids. The application was opposed by the PMA and the 39 companies it represents.
In his crumpled silk gown, Fanie Cilliers, described by a colleague as possibly the best advocate in the country, was leading the attack for the PMA. He was attempting to keep TAC out, arguing that the activist group had entered the fray too late, which would unfairly prejudice his clients.
He put forward more points: TAC’s sub- mission was really only a supplement to the government’s arguments, and therefore was unnecessary. The introduction of TAC could mean that the hearing could run out of time, and in any case the TAC would have a chance to be heard later, when the case went on to the Constitutional Court. Finally, he said, the PMA and other applicants would need time to answer the allegations made in the TAC submissions.
The judge was firm. Cilliers’s clients had done nothing with respect to the TAC submission. He must consult with his clients and tell the judge how long he would need to respond to TAC, if the organisation was admitted as amicus.
But, the judge mused, there was another issue. Given that the disputed laws were not in force, did that mean that he had jurisdiction? “It may well be that they are still in the kingdom of the legislature,” he pointed out.
Cilliers was ready with his arguments to show that Judge Ngoepe indeed had jurisdiction. Pending the outcome of Cilliers’s discussion with his clients, the court proceeded as if the amicus application had been accepted and settled to the main matter in hand.
As arguments went on, a peaceful air spread through the room. The excitement was replaced by the erratic behaviour of the lights, which kept plunging the court momentarily and repeatedly into darkness.
Court 2D of the Pretoria High Court was jammed. The who’s who in government health circles were there, including Minister of Health Manto Tshabalala-Msimang, her Director General, Ayanda Ntsaluba, and the head of the Medicines Control Council, Helen Rees.
The close-knit activist world of Aids was out in full force as well. The team from the Aids Law Project (ALP) sat ready to represent TAC. Zackie Achmat, the activist who was one of the banes of the previous regime, and at times must seem like the bane of this one, was wearing his bright yellow “HIV Positive” T-shirt. ALP director Mark Heywood lurked at the back of the court, clutching his head when the judge revealed that TAC’s legal papers were not properly organised. The organisation’s court papers had been given to the wrong judge, based on incorrect information that Judge Ngoepe had stepped down from the case.
The other side was predominately represented by pale males in black, or at least dark, suits. Also to the fore and in a dark suit was Mirryeena Deeb, head of the PMA and the woman who almost single-handedly has the unenviable job of explaining the association’s case to the world.
International aid organisation Mdcins sans Frontires (MSF) and Oxfam were there, as were representatives of the World Health Organisation (WHO). Several trees must have given up their lives to produce notebooks for the journalists present. And sitting among all this were the people for whom the case was being fought, ordinary South Africans who by now have a very high chance of being affected, either directly or indirectly, by the HIV/Aids epidemic.
Shortly before the court adjourned at the end of day one, Judge Ngoepe taught the assembled masses that it is contemptuous to have cellphones ringing in court. After one too many cheerful electronic chirrups, he snapped, threatening to jail the next offender.
Day two resumed with the fight over the TAC. The case was about patent laws, not about costs, which were the core of TAC’s submission, Cilliers argued. TAC had raised fresh issues, he would need time to prepare. How much time, inquired Judge Ngoepe. About two or three months, answered Cilliers. There was a nasty pause. “Out of the question,” said the judge.
Like a tennis match, the spectators watched the argument being knocked back and forth between the judge and Cilliers. The latter grew ever politer, with “my lords” coming thick and fast as the temperature of the argument grew. The judge’s voice stayed quiet and level.
After a break for tea, Cilliers announced the results of discussion with his clients: he would need a minimum of four months. There was an even nastier silence and a shrivelling look from the bench. Judge Ngoepe said he wasn’t even going to discuss it and summoned all the lawyers for a private consultation.
The electrical anarchy spread. After lunch the metal detectors were out of order, and visitors were met by plaintive requests to declare any weapons. The lifts also gave up the ghost, forcing the judge to relocate his chambers.
Judge Ngoepe returned at 2pm to give his verdict. A deadly hush descended on the court, which became positively deathwatch-like when a cellphone rang. The offender, a member of the PMA team, was forced to rise to his feet and apologise to the court, blushing under his tan. With a final glare the judge continued.
TAC was in, the case was out until April 18 and the PMA had just three weeks to reply to the TAC submissions. Any points not rebutted would be accepted as given.
With the distinct air of someone making sure that there was an opening for a review of Judge Ngoepe’s decision, Cilliers rose to say it meant his team would not be able to garner international evidence to support their argument.
I cannot give advice, said the judge, I can only provide the legal framework. He swept from court.
The TAC was jubilant, they felt the PMA would be forced to reveal cost information hitherto kept confidential. The PMA lawyers looked bloodied but unbowed, reforming to discuss strategy for the next round.