Fatima Hassan is founder and director of the Health Justice Initiative and Dr Marlise Richter is a senior researcher at the initiative.

On 2 May 2021, more than 300,000 vaccine doses triumphantly zoomed into OR Tambo International Airport. This means that South Africa now has two approved vaccines – from Pfizer/BioNTech and Johnson & Johnson – in its arsenal against the Covid-19 pandemic and should kick-start the non-study national vaccination roll-out.

In early April, the South African Health Products Regulatory Authority (Sahpra) registered the Johnson & Johnson vaccine for use in individuals 18 and older. Sahpra’s press release noted that the registration is conditional – only permitting the sale and distribution of this vaccine to and through the South African government. In turn, one of the other conditions of pharmaceutical companies in their negotiations with the government was that they be given full indemnity against any and all claims against them.

This forced the government to rapidly establish a no-fault vaccine injury scheme and fund, and to rush it through the public comment phase, now already gazetted – a practice common in many jurisdictions (central procurement and allocation) due to the global scarcity of vaccine supplies and the preference of vaccine manufacturers in this context to only negotiate with and sell to national governments, not private health providers including medical schemes or provincial governments. The reasons for this vary and include the fact that there are limited supplies to sell, but critically, as we have seen in the past few weeks, it is a demand of manufacturers.

Until the roll-out of the Pfizer/BioNTech vaccines kicks off, the only jabs that have been administered at population level are through the Sisonke study trial. It has been limited to healthcare workers and South Africa has been able to vaccinate 382,480 of them in just under three months (17 February to 9 May 2021). If we maintain this rather weak and slow pace of 4,722 vaccinations a day, it will take more than 23 years to reach 67% of the population (“population-level immunity”). We have much ground to cover in a global context of increasing variants and illness, coupled with death (at least three million have died globally).

Back in early January, after a lot of pressure from civil society and scientists, a PowerPoint presentation by the Department of Health shed some initial light on the government’s vaccine acquisition and roll-out plans. It stated that “the SA government will be the sole purchaser of the vaccines for the country. The NDOH will contract with suppliers to purchase stock and allocate to provincial health departments and the private health sector”.

At the time some groups reacted to the centralisation of government procurement with unease or indignation. Against the backdrop of State Capture, corruption and misspending of public money – and particularly egregious, the looting and mismanagement of Covid-19 emergency relief resources – it is not unexpected to encounter high levels of mistrust, even to the point of insisting on direct private procurement of vaccines and other technologies, despite several cases of private-sector pandemic gouging in 2020. Cynicism was also surely sparked by the time it took the government to secure and sign supply contracts for vaccines.

AfriForum and Solidarity were part of that cynical crowd. On 27 January 2021, they brought an urgent court challenge to the authority of the national government to be the “sole procurer of Covid-19 vaccines”. Their case was premised on the Department of Health’s PowerPoint presentation mentioned above, and they argued that the government’s strategy “violated the rights of provincial governments, individuals and the private sector to procure or distribute Covid-19 vaccines”. They asked the court to issue a declarator to the effect that anyone could procure vaccines, even non-state actors, in a pandemic (Solidarity and AfriForum argued that should the private sector be allowed to procure vaccines it could commence its own vaccination programme, without paying any attention to the global market realities – scarce supplies – nor the pressing issue of equity in allocation nor epidemiological prioritisation principles and needs, commonly called “queue-jumping”).

If given the go-ahead by a court of law, such an order would have had dire ramifications for health equity in this pandemic (and future pandemics). It would effectively have allowed people with money and medical insurance to access scarce vaccine supplies (in theory) and to allocate them without any consideration of public health equity or need, or accountability.

In effect, they argued for the current public-private healthcare divide or status quo to continue – where the rich can buy their way to health, and the poor must wait.

If given the go-ahead by a court of law, such an order would have had dire ramifications for health equity in this pandemic (and future pandemics). It would effectively have allowed people with money and medical insurance to access scarce vaccine supplies (in theory) and to allocate them without any consideration of public health equity or need, or accountability.

For the Health Justice Initiative (HJI) this was an untenable approach and we applied to be a friend of the court (amicus curiae). Our arguments centred on health equity within a global pandemic where we argued that allowing parties other than the state to procure vaccines would exacerbate the deeply troubling levels of inequality in our country. The HJI also showed that other countries were adhering to a globally recognised approach that the state was best placed to ensure that public health principles and epidemiological needs were met in the current context of severe shortages of vaccines.

We filed our application to intervene and to introduce expert evidence and a week later, AfriForum and Solidarity withdrew their case (while none of the parties objected to our being admitted to the case, AfriForum and Solidarity objected to HJI introducing expert evidence). What did our experts argue?

The three experts for HJI provided important public health evidence on these issues. Professor Leslie London showed that if provinces and private groups were allowed to select, procure, allocate and distribute vaccines outside of a national process, there would be a worrying lack of coordination, poor accountability, and an inability to ensure equity in access to vaccines. This would come at the expense of the health and survival of high-risk and vulnerable groups in our country.

Imagine the impact on the health system if 20-year-old, healthy Solidarity members with no comorbidities were able to get a vaccine before a 60-year-old frontline worker with diabetes when there is a limited pool of vaccines. Such an approach is certainly not supported by the large body of technical, scientific and ethical guidance available.

The United Nations Special Rapporteur on Health, Dr Tlaleng Mofokeng, showed how such an approach would be contrary to international human rights guidelines, while Professor Saad Omer from Yale University provided the court with best practice in the US and the World Health Organization’s prioritisation guidance and approach in this pandemic. Our experts set out why almost all other countries were following the universally accepted public health, not wealth, prioritisation principles due to the global context set out above and because in many cases regulatory and clinical data were still being reviewed.

Ironically, on withdrawing the case and not securing any relief by the court, the COO of Solidarity, Dr Dirk Hermann, triumphantly claimed at its press conference that “the government has now admitted under oath in its court documents that there is no statutory restriction on the private sector regarding the purchase of [Covid-19] vaccines. There is now legal certainty that the private sector may purchase and distribute vaccines – a huge setback for looters.”

We were puzzled. We knew that the private sector and provinces could not secure sufficient supplies of vaccines directly. Which is why even major business bodies and medical schemes had by that time already supported the national government planning process and approach of “One Country, One Plan”.

The answering affidavit submitted by the new Director-General of Health, Dr Sandile Buthelezi, confirmed the status quo – no law had been passed to prohibit the procurement by non-state actors. Instead, the bar to parallel procurement was the reality of the market: There were simply not enough vaccine supplies in the world, and pharmaceutical companies were not interested in dealing with non-state actors. Instead, pharmaceutical companies and vaccine manufacturers were, and are still, only negotiating with consortiums of governments, or mechanisms such as Covax and Avatt or individual governments for large-volume contracts. Also, because vaccine manufacturers are demanding full indemnity from liability from the state.

Indeed, months later, no law has yet been passed to explicitly prohibit parties other than the state to purchase vaccines. Sahpra’s conditions for Johnson & Johnson, however, preclude non-state distribution.

We believe this is a reasonable strategy within the global context of severe vaccine scarcity. It will help to ensure ethical, equitable and evidence-based distribution and allocation of vaccines that will reach the most vulnerable in our country first – not the “worried well” who have privilege and financial resources. This will guard against queue jumping and bolster a rational public health approach to bring South Africa much-needed population immunity. Hopefully, with greater urgency than at present. DM/MC

For more information on the legal case and for all the legal papers, see here. The HJI’s fact sheet on the case and our amicus submissions are available here.

HJI’s Vaccine Access Timeline: https://healthjusticeinitiative.org.za/vaccine-equity/vaccine-timeline/