The Health Justice Initiative yesterday asked the Gauteng High Court, Pretoria, for an order instructing the Minister of Health and the Department of Health to disclose records concerning the procurement of Covid-19 vaccines by the National Department of Health.
The organisation in particular wants access to the vaccine procurement contracts concluded with vaccine manufacturers and suppliers, and the records of negotiations with those parties.
Judge Anthony Millar was told that by June this year, more than 38 million Covid-19 vaccine doses had been administered in South Africa. Several million vaccine doses were received by directly buying from pharmaceutical companies, through the Covax facility, and by donations. However, the content of these agreements, including the complete details of the contracting parties is unknown and remains a secret, advocate Isabel Goodman said.
The Health Justice Initiative believes that at the very least, contracts must have at least been entered into with the government and Johnson & Johnson and Pfizer as these are the vaccines South Africa is administering in the national vaccine roll-out programme.
She said these vaccines have been procured at great cost. The actual cost has not been disclosed, although the 2021 national Budget allocated R10 billion for the purchase of Covid-19 vaccines. It is for this reason that in 2021 the Health Justice Initiative used South Africa’s access to information law, the Promotion of Access to Information Act to request access to the vaccine procurement contracts. The government, however, refused.
Fatima Hassan, head of the Health Justice Initiative, said there was 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 rand away from Covid-19 relief measures and other health services.”
She said it was vital to ensure that the procurement of public goods using public funds includes the highest levels of contractual transparency.
Goodman, meanwhile, argued that the public has a right to know what our government agreed to, when and with whom, at what price, and why.
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. It said that any disclosure “would prejudice it and the vaccine manufacturers in future engagements”. The department contended that its non-disclosure is lawful.
Goodman responded that this may have been the case in 2020 when they negotiated the contracts, but things have changed now. She said the government was obliged to be transparent.
She said because the contracts concern significant public funds, the lack of transparency violates the constitutional principle that public administrations must be accountable and foster transparency by providing the public with timely, accessible, and accurate information.
Judgment was reserved.