‘[Government is] constitutionally obliged to act in an accountable and transparent manner … It is, in my view, self-evident that there is a public interest in the disclosure of the records.”

With these words, Judge Anthony Millar ordered the National Department of Health on Thursday to provide the procurement contracts, agreements and other documents to the Health Justice Initiative within 10 days.

Up until now, the negotiations and any information around the procurement of Covid vaccines were shrouded in secrecy.

“Today, South African courts upheld the principles of transparency and accountability when our government procures health services using public funds,” said Fatima Hassan from the Health Justice Initiative.

The Health Justice Initiative brought the appeal under the Promotion of Access to Information Act (Paia).

“The [Gauteng Division of the High Court in Pretoria] ruled in our favour in our bid to compel the National Department of Health to provide access to the Covid-19 vaccine procurement contracts. 

“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. The contracts concerned substantial public funds, and the contracting process has been marred by allegations that the government procured vaccines at differential, comparatively inflated prices and that the agreements may contain onerous and inequitable terms including broad indemnification clauses, export restrictions and non-refundability clauses,” said Hassan.

“This significant moment comes as we begin to emerge from the devastation of the Covid-19 pandemic. It sets an important precedent, especially as our government pursues National Health Insurance.  

“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.”

Hassan continued: “The secrecy surrounding Covid-19 vaccine procurement at the height of the pandemic continues to be a global issue, not just limited to SA.

“It is important to know what was agreed to in our name at the behest of powerful vaccine manufacturers who have been reported to have bullied governments in the Global South especially, insisting on contracts that ultimately made them huge profits, without maximum accountability and openness. Therefore, this judgment can be leveraged by other countries to demand open contracting in their jurisdictions.

“We believe that in the current pandemic treaty negotiations, where worrying attempts are being made to water down transparency, this judgment will support pandemic preparedness measures by bolstering provisions on transparency and accountability in these negotiations.

“This case demonstrates that all governments should and can be held accountable when spending public funds … this also includes the parties it entered into contracts with. It is in the public interest to know what was agreed to. The judgment has affirmed that today.

“We look forward to the Department of Health’s cooperation by making available all the records HJI requested within the time period set out in the judgment (10 court days from 17 August 2023).”

What must be made public?

In terms of the court order, the following documents must be handed to the Health Justice Initiative:

Copies of all Covid-19 vaccine procurement contracts, Memoranda of Understanding and agreements with Janssen Pharmaceuticals/Johnson & Johnson, Aspen Pharmacare, Pfizer, Serum Institute of India/Cipla, Sinovac/Coronavac, any other vaccine manufacturer or licensee, the African Union Vaccine Access Task Team, Covax (the financing arm of the Gavi, the Vaccine Alliance) and the Solidarity Fund.

Millar also ordered the release of copies of all Covid vaccine negotiation meeting outcomes and/or minutes and correspondence with any of these parties.

Will there be an appeal?

While it is widely expected that the government will likely appeal the order, the national Department of Health’s spokesperson, Foster Mohale, did not say much in reaction to the ruling.

“The Department of Health has noted a court judgment delivered by the [Gauteng Division of the High Court in Pretoria] on Thursday, 17 August, in which the department was ordered to grant the applicant [Health Justice Initiative] access to copies of all Covid-19 vaccine procurement contracts, non-disclosure agreements and the related documents. 

“The department will study the judgment and respond in due course.”

Landmark decision

Mohga Kamal-Yanni, policy co-lead for The People’s Vaccine alliance, said they hoped to see more cases like this globally.

“Pharmaceutical companies should never be allowed to operate without public scrutiny, particularly in a pandemic. But in South Africa and many other countries, governments were forced to sign up to strict secrecy clauses for their populations to access lifesaving vaccines and medicines.

“This landmark decision shows the public can take on powerful pharmaceutical companies and win. We hope to see more cases like this around the world.

“Transparency and equity must be at the heart of the world’s response to health crises. People have a right to know how much pharmaceutical companies are charging them for lifesaving vaccines and medicines. And that right must be enshrined in the Pandemic Accord and the International Health Regulations.”

Tian Johnson, chair of The People’s Vaccine alliance Africa, agreed:

“The core of this judgment affirms our rights as Africans to not only hold those who claim the title of ‘leader’ accountable but also reminds us that the urgent work of pandemic prevention, preparedness and response can only happen with openness, transparency and a wilful and conscious effort to recognise civil society as critical accountability partners. 

“The work to realise our dignity as Africans will only be complete when transparency and openness are our default. The work of the [Health Justice Initiative] in this regard has shifted the needle closer to the health justice that is our birthright,” he added.

What about the pharmaceutical companies?

Negotiations were kept so secret that both Pfizer and the National Health Department refused to say which of their legal entities were party to the negotiations or the agreements.

Even the confidentiality clauses were deemed confidential.

When the Health Justice Initiative initially applied for access to these documents in terms of Paia, the Health Department informed them that the “other parties” involved in these contracts would be invited to make representations on the request.

By 13 September 2021, notwithstanding an agreement to the extension of time for a response, no response had been received. 

On 15 September 2021, the applicant submitted an internal appeal to the Department of Health’s information officer on the grounds of deemed refusal. No response was received to the internal appeal.

On 8 December 2021, the applicant addressed letters to local offices or representatives of pharmaceutical manufacturers whose vaccines had been approved for domestic use (namely, Janssen, Pfizer South Africa, Serum Institute of India Pvt Ltd, and Gavi, the Vaccine Alliance) with the following request:

“Please advise us which entity in the group was the National Department of Health’s counterparty to the negotiations and any ultimate agreement(s) and provide us with a South African address at which we may serve the application on them.”

On 7 January 2022, Pfizer SA replied by email to the applicant’s request and informed the applicant that “the information you request is itself confidential and [is protected] by Paia”. 

Nobody else responded.

Why has the Department of Health refused to make the agreements public?

In court papers, the department claimed 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 the non-disclosure of the procurement agreements.

The department’s legal team argued that if it provided access to these contracts, the department will be in breach of the terms of the confidentiality clauses and the disclosure will prejudice the government, the pharmaceutical companies and the vaccine manufacturers in future engagements 

The legal team for the government further argued that they were justified in withholding the information. 

What Judge Millar said

The judge, however, added: “In the present matter, the precise terms of each of the confidentiality clauses were also not disclosed. Absent this disclosure, it was argued for [Health Justice Initiative] that since it was not alleged that the confidentiality clauses applied to either the negotiations, the minutes, correspondence or for that matter, any of the other agreements besides the final agreements that were concluded, it was not open to [government] to claim confidentiality in respect of those items.

“It is not open to the [government] to conclude agreements which include a confidentiality clause and then seek to rely on the confidentiality clause to circumvent their obligations of accountability and transparency,” he ruled. DM