The South African government has been ordered by the Pretoria high court to make all its Covid-19 vaccine contracts and minutes of negotiations and memoranda of understanding public and hand them over to the Health Justice Initiative.

Judge Anthony Millar ordered that the following contracts be handed over to the Health Justice Initiative within 10 days:

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 Global Vaccine Alliance) and the Solidarity Fund.

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He also ordered the release of copies of all Covid-19 vaccine negotiation meeting outcomes and/or minutes and correspondence with any of these parties.

The Health Justice Initiative (HJI), led by Fatima 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)

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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.

“The NDOH reports to Parliament suggesting that some or all of the vaccine manufacturers or suppliers insisted that government provide them with far-reaching indemnities, and establish a vaccine injury fund, failing which vaccines would not be supplied seems to me to be grotesque having regard to the context within which they were negotiated. This context was that of both a national and international emergency and at a time where across the globe and including within South Africa many lives were being lost to the pandemic on a daily basis.

“Every single one of the over 30 million South Africans who received one or more doses of one or other of the vaccines, as well as those who chose not to, nevertheless have paid and may continue to pay through the fiscus for what was negotiated by the National Department of Health — the obligations may well be continuing but until such time as there has been full access granted to the records concerned, this cannot be ascertained.

“It is, in my view, self-evident, that there is a public interest in the disclosure of the records,” Millar ruled.

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Millar dismissed the government’s argument that the documentation could be withheld on grounds of confidentiality.

“In the present matter, the precise terms of each of the confidentiality clauses was also not disclosed. Absent this disclosure, it was argued for HJI 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 the [government] to claim confidentiality in respect of those items.”

He ruled that government was constitutionally obliged to act in an accountable and transparent manner. 

“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.

“It seems somewhat obvious, in the context of public procurement but in particular in the present instance, that just because there is a confidentiality clause, does not mean that the information and documentation can be withheld on that basis alone,” Millar added. 

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He also dismissed an argument that the disclosure of the information sought would cause harm to the commercial interests of the country.

“This argument was said to encompass ‘its future contractual relationships with the manufacturers, suppliers of vaccines and other countries who are signatories to the agreements and other international pharmaceutical companies’.

“There is nothing before this court to indicate that there would be any disadvantage in future negotiations or commercial prejudice to the country or to any of the other parties to the contracts concerned were the information and documentation to be disclosed. This basis for refusing disclosure is without any merit,” Millar added. DM