The Pretoria High Court on Thursday ordered the minister of health and the department to hand over a trove of Covid-19 vaccine procurement documents to the Health Justice Initiative (HJI).

The state previously rebuffed requests for access to these documents, citing confidentiality under the Promotion of Access to Information Act (PAIA).

The court has given the minister and the Department of Health (DoH) 10 days to hand over Covid-19 vaccine procurement contracts and other agreements with suppliers such as Janssen Pharmaceuticals, Aspen Pharmacare, Pfizer and the Serum Institute of India, The Solidarity Fund, among others.

The court has also ordered the handover of meeting outcomes, correspondence and minutes related to vaccine negotiations.

Confidentiality

The HJI wrote to the DoH requesting access to these documents under PAIA in July 2021, receiving a reply only seven months later saying the documents were confidential and could not be released.

HJI then wrote to the local offices of vaccine manufacturers asking for an address to serve a PAIA application. Only Pfizer responded, saying the requested information was confidential and protected from disclosure.

Explaining his decisions for the ruling to compel disclosure, Judge Anthony Millar wrote: “Neither the existence of the specific documents [requested] nor indeed the parties to them were disclosed. The refusal was a blanket one with no basis laid for it other than the repeated referral to ‘confidentiality’ and ‘non-disclosure’.”

The state had argued that the parties to the vaccine agreements, who had a substantial interest in the matter, had not been ‘joined’ in the HJI case, and therefore the case should be dismissed.

The state had withheld the identity of the third parties it had contracted with, which prevented HJI from serving legal papers on them. Such conduct was “self-serving” and indicative of the “secretive and unresponsive culture in public and private bodies” that PAIA seeks to overcome, says the judgment.

Millar also rejected the state’s attempts to hide behind confidentiality clauses as a way of circumventing their obligations of accountability and transparency.

The state had also not argued that the release of the documents would have any adverse consequences, such as claims of damages for breach of contract.

Insufficient public interest, says state

The state had argued that there was insufficient public interest to warrant the release of documents as required under PAIA.

HJI’s court papers contradict this, pointing to differential and inflated prices paid for vaccines, as well as unreasonable procurement agreements, such as indemnity, prohibitions of export and donation, and the non-refundability of down-payments.

“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 NDoH [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,” reads the judgment.

Deposing for the state, DoH deputy director-general Dr Nicholas Crisp argued that the unprecedented nature of the Covid-19 pandemic and the international scramble for vaccines put poorer countries like SA at a disadvantage.

“No government could afford to have a fixed or rigid strategy for procuring and distributing vaccines,” says Crisp’s affidavit before the court.

“What was required was a constantly evolving vaccine strategy that took account of the latest scientific developments, the latest information regarding which vaccines were effective against which variants [of the virus], which vaccines were appropriate for which country’s conditions and procurement procedures of the vaccines in the context of the unprecedented and intense competition between countries.”

The DoH eventually negotiated vaccine offtake agreements with multiple suppliers, subject to confidentiality clauses requiring non-disclosure of procurement agreements.

Responding to the judgment, HJI says the ruling sets an important precedent, especially as the government pursues National Health Insurance (NHI).

“With increasing reports of corruption within the healthcare sector, we cannot have a healthcare system shrouded in secrecy,” it says in a statement.

“Procurement must be held in check, as it will involve powerful multi-national companies, particularly from the pharmaceutical industry.”

Costs were awarded against the state.

source:State ordered to hand over Covid-19 vaccine documents – Moneyweb