By Lehlohonolo Lehana.
The Pretoria high court has ordered the national health department to disclose details of the secret Covid-19 vaccine contracts it signed with pharmaceutical manufacturers at the height of the coronavirus pandemic.
The government signed several vaccine contracts during a period of intense global competition for scarce supplies, but has disclosed few aspects of the deals it signed with Pfizer, Johnson & Johnson, the Serum Institute of India and the international vaccine sharing mechanism, Covax.
The Minister of Health Joe Phaahla, and the department cited as respondents in the application before Pretoria High Court Judge Anthony Millar, had refused to disclose the documents following an application by Health Justice Initiative (HJI) in terms of the Promotion of Access to Information Act (PAIA).
But Judge Millar has said none of the reasons provided by the respondents stood legal scrutiny and it was self-evident that there was a public interest in the disclosure of the records.
HJI Director, Fatima Hassan, welcomed the judgement and said in a statement that the court ordered that “all COVID-19 vaccine contracts must be made public within 10 days.”
“This is a massive victory for transparency and accountability,” she said.
Hassan said the government contracts concern substantial public funds, and the contracting process has been marred by allegations that the government procured vaccines at differential, comparatively inflated prices.
She added that the “agreements may contain onerous and inequitable terms including broad indemnification clauses, export restrictions, and non-refundability clauses.”
Hassan said the judgment also sets an important precedent, especially as the government pursues the National Health Insurance scheme.
“With increasing reports of corruption within the healthcare sector, we cannot have a healthcare system shrouded in secrecy. Procurement must be held in check, as it will involve powerful multinational companies, particularly from the pharmaceutical industry,” she said.
Hassan, first applied for these documents in terms of the Promotion of Access to Information Act. These were refused by the National Health Department as was an internal appeal.
They then went to court. In terms of the law, an appeal against a deemed refusal of access to information is considered a fresh application, not a legal appeal.
“The Health Department admits to having bound itself to confidentiality clauses, which the HJI submits are at odds with its obligations under the Constitution, and which are otherwise contra bonos mores (against good morals),” Millar wrote in his judgment.
“Media reports suggest that the Department procured vaccines at differential and inflated prices (again, in breach of its obligations under the Constitution).”
The HJI further argued that the vaccine procurement agreements contain unreasonable and inequitable terms, including in relation to indemnification; prohibitions on export, on-ward sale and donation; and “non-refundability” of down-payments.
“While the circumstances under which the respondents negotiated the vaccine procurement contracts and concluded those contracts, is what may fairly be described as an emergency situation, this does not preclude their disclosure in the public interest.
Judge Millar set aside the refusal to grant access to the records and ordered the respondents to hand over the documents within ten days. He also ordered the respondents to pay the costs.