The advocacy group Health Justice Initiative (HJI) on Tuesday asked the Pretoria High Court to compel the National Department of Health to disclose a series of documents relating to South Africa’s procurement of Covid-19 vaccines.

Director of the HJI Fatima Hassan, said the public’s constitutional right to access information about public procurement had been flouted.

To date, the content of South Africa’s procurement agreements for Covid-19 vaccines with pharmaceutical companies, including the complete details of the contracting parties, remains a secret.

“These vaccines have been procured at great cost,” Hassan said. “The actual cost has not been disclosed, although the 2021 National Budget allocated an amount of R10-billion for the purchase of Covid-19 vaccines.

“It is for this reason that in 2021 the HJI used South Africa’s access to information law, the Promotion of Access to Information Act (commonly referred to as ‘PAIA’) to request access to the vaccine procurement contracts. The government refused.   

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“There is a heightened need for transparency and accountability especially during a national disaster, where several of the usual checks and balances are limited.

“Disclosure is even more important in the health sector following serious allegations that globally, powerful pharmaceutical companies bullied countries into signing secret contracts at the time and locally, that corruption has diverted millions of rands away from Covid-19 relief measures and other health services.

“The Department of Health has argued in its legal papers it cannot make the contracts public because it is bound by confidentiality clauses that preclude disclosure and that disclosure ‘would prejudice it and the vaccine manufacturers in future engagements’.

“Essentially, our government traded secrecy for scarce supplies at the behest of very powerful vaccine manufacturers and intermediaries, who made huge profits on sales. Our government should stand up to these companies. By agreeing to these onerous Non-Disclosure Agreements (NDAs) our government is enabling secrecy that only pharma companies benefit from.”

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However, advocate Simon Phaswane, for the National Department of Health, argued that the appeal should fail on the technical ground that the pharmaceutical companies had not been added to the case.

The Department of Health has not provided reasons why it has refused access to the documentation, but Phaswane said the documentation fell under an exemption in the law as it contains confidential information.

The heads of argument for the HJI state: “[T]he extraordinary demands of the pandemic stand in stark contrast to the very ordinary demand that forms the basis of this application: a public health organisation, acting in the public interest, seeks access to documents held by an organ of state regarding its procurement processes.”

Failure to respond

The Promotion of Access to Information Act (PAIA) compels the state to produce information held by it on request unless it falls under one of the exceptions. But the HJI’s legal team argued that the state had produced no facts that would allow for this information to be treated as an exemption.

“A requester thus does not have to motivate a request; it is for the public body to motivate a refusal,” the HJI heads of argument continue.

On 19 July 2021, the HJI submitted the PAIA request to the Department of Health for two sets of records: first, vaccine procurement contracts, memoranda of understanding, and agreements concluded with any vaccine manufacturer, licensee, or supplier or with any of Janssen Pharmaceuticals/Johnson & Johnson; Aspen Pharmacare; Pfizer; Serum Institute of India; Cipla; Sinovac/Coronavac; the African Union Vaccine Access Task Team (AU AVATT); Covax (with the Global Vaccine Alliance, Gavi, or otherwise) and the Solidarity Fund.

The second set of records related to the minutes, correspondence and negotiation meeting outcomes with those parties.

On 29 July 2021, the director-general of health, Dr Sandile Buthelezi, responded to the HJI’s request to say that the department would notify the vaccine manufacturers and distributors of the request, and invite them to make representations in response. The HJI never received a response. 

The department did not respond to any of the HJI’s requests after that and did not provide a formal refusal. In terms of the law, this is deemed as a refusal.

The HJI filed an internal appeal in September 2021. The department did not respond to the HJI — either to inform it of the attitude of the vaccine suppliers or to inform it of the outcome of the internal appeal.

The law regards this too as a dismissal of the appeal. The HJI then launched its current court application.

It wrote to the pharmaceutical companies requesting that they identify the legal entities that had negotiated or concluded vaccine procurement agreements with the state, but this was ignored.

“The HJI consequently does not know which particular juristic entities have negotiated and concluded agreements with the department. That information has been purposefully withheld from it, even in the department’s answering affidavit,” advocate Isabel Goodman argued on behalf of the HJI.

This rendered the HJI unable to join the pharmaceutical companies to its PAIA appeal.

Department ‘negotiated in good faith’

In his affidavit, the deputy director-general of the National Department of Health, Dr Nicholas Crisp, stated: “I must mention that the procurement contracts were negotiated in good faith and in the best interests of the country under the prevailing circumstances.

“The department had signed the agreements, which contained confidentiality clauses regarding non-disclosure of the procurement agreements. I have mentioned in the previous paragraphs that there was intense competition between the countries to procure vaccines for their citizens.

“The vaccine manufacturers equally have negotiated in good faith and signed a non-disclosure clause in the agreements. The agreements signed with the manufacturers mentioned in the paragraph above contained confidentiality clauses. These clauses prohibit any disclosure of the procurements without the consent of other manufacturers. Any disclosure will constitute a breach of the agreement.”

Crisp said if the information was supplied it would constitute a breach of contract.

“I submit, with respect, that there is no basis to suggest that disclosure of the agreements would reveal evidence of a substantial contravention of, or failure to comply with, the law: or an imminent and serious public safety or environmental risk: and that the public interest in the disclosure of the record clearly outweighs the harm as contemplated in section 46 of PAIA.”

The department further argued that there was no adequate public interest reason to compel the disclosure of the records.

‘Weighty public interest considerations’

The HJI’s Goodman countered that the department was constitutionally obliged to act accountably and transparently, and may only procure vaccines in a fair and transparent manner.

“It cannot conclude and invoke a confidentiality clause in order to circumvent these constitutional duties. It follows, we submit, that the department is obliged to produce its vaccine procurement records (or, at the very least, the non-confidential portions thereof) in response to a PAIA request, even in the face of a confidentiality clause.

“There are weighty public interest considerations that weigh in favour of disclosure: The records sought are necessary to understand the basis and terms upon which the department has negotiated and procured Covid-19 vaccines. Those terms may continue to bind South Africa for many years to come.

“In the absence of disclosure, the HJI (and the public at large) cannot ascertain the terms on which vaccine procurement has been negotiated and concluded, and cannot challenge the validity and enforceability of the terms struck. Non-disclosure thus serves, in effect, to oust the court’s oversight over the terms of the vaccine procurement agreements, and to violate the HJI’s right of access to court.

“Moreover, reports on the conduct of pharmaceutical manufacturers elsewhere, as well as the department’s own reports to Parliament, suggest that some or all of the vaccine manufacturers/suppliers insisted that government provide them with far-reaching indemnities, and establish a vaccine injury fund, failing which vaccines would not be supplied. The public is obviously entitled to know all relevant details included in the agreements related to this, what their cost to the fiscus is, and what their implications are for people who suffer vaccine injury.

“Government cannot lawfully bind itself secretly to commitments of this kind.”

She said that large amounts of public funds were used to procure the vaccines.

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“It is a constitutional requirement that procurement, on the one hand, and public spending and future financial commitments, on the other, be open and transparent. The need for transparency and accountability is heightened during a State of Disaster, where the usual checks and balances for procurement have been relaxed,” Goodman said.

She added that under the circumstances, “The need for disclosure plainly outweighs any harm entailed by it — particularly since no such harm has in fact been identified by the department.”

However, the Department of Health’s Phaswane argued that the documents sought by the HJI fell under the exceptions provided for by the PAIA.

He added that the department had shown that the information withheld by it fell under the PAIA exemptions.

“The third parties in this matter are international companies. It is conceivable that the basis of confidentiality is to protect their future business interests. If the information sought to be protected is placed in the public domain, their business interests would be at risk.

“When dealing with coronavirus, the government could not operate in a vacuum but as part of the international community and it needed to rely on the cooperation of institutions and third parties to supply relevant information to enable the departments to perform their public duties. It is similarly justifiable for the [department] to refuse access to information.”

Judge Anthony Millar reserved judgment. DM