National Assembly - 09 May 2001
WEDNESDAY, 9 MAY 2001 __
PROCEEDINGS OF THE NATIONAL ASSEMBLY
____
The House met at 14:02.
The Deputy Speaker took the Chair and requested members to observe a moment of silence for prayers or meditation.
ANNOUNCEMENTS, TABLINGS AND COMMITTEE REPORTS - see col 000.
NOTICES OF MOTION
Mr F BHENGU: Madam Speaker, I hereby give notice that on the next sitting day of the House I shall move on behalf of the ANC:
That the House -
(1) notes that -
(a) several million hectares of state-owned land will be
redistributed in Port St Johns in the Eastern Cape; and
(b) the redistribution of this land will benefit at least seven
black farmers;
(2) believes that this is yet another indication of the ANC-led Government’s commitment to making land accessible to historically disadvantaged communities; and
(3) commends the Minister for Agriculture and Land Affairs, Thoko Didiza, for accelerating the land redistribution programme.
Mr N S BRUCE: Madam Speaker, I hereby give notice that on the next sitting day of the House I shall move:
That the House -
(1) notes with grave concern that the move by one of the leading banks, which is partly owned by public service pension funds, to enrich 16 executives in a manner that offends good corporate governance, has led to charges of corporate avarice and will jeopardise this country’s reputation for equity, responsibility and moderation in corporate affairs;
(2) calls on the Minister of Finance, as trustee of the public service pension funds, to instruct the Public Investment Commissioners to register their disapproval of this scheme and provide the names of the executives concerned to this House; and
(3) further calls on the chairman of Nedbank, former finance Minister Chris Liebenberg, and on the chairman of Nedbank’s controlling shareholder, Mike Levett of Old Mutual, to review these executive options urgently and, by making a public statement, avoid eroding international confidence in corporate probity here.
Mr B M DOUGLAS: Madam Speaker, I hereby give notice that on the next sitting day of the House I shall move:
That the House -
(1) notes -
(a) that there is a noticeable acceleration by many local councils
in the transfer of old council-rented stock;
(b) the R7 500 discount benefit that provides alleviation for many a
home-owner in arrears with service charges; and
(c) the exorbitant interest charged on arrear rates renders new
home owners vulnerable to becoming victims of this very scheme
of home ownership that is intended to help them; and
(2) calls on the Minister to examine the indigency policy to take care of these people or the new home owners may just become those who lose their homes in this regard.
Mr L M KGWELE: Madam Speaker, I hereby give notice that on the next sitting day of the House I shall move on behalf of the ANC:
That the House -
(1) notes that the 2000 register of schools shows major improvements in the state’s providing for the basic needs of schools;
(2) further notes that -
(a) overcrowding in schools has been reduced while toilet
facilities, electricity and water supplies have been increased;
and
(b) these improvements at the most disadvantaged schools in the
country have made it possible for some of them also to gain
access to Internet facilities; and
(3) congratulates the Department of Education on these achievements.
[Applause.]
Adv A H GAUM: Madam Speaker, I hereby give notice that on the next sitting day of the House I shall move: That the House -
(1) notes that -
(a) on Friday, 4 May 2001, Henry Oram, the head of the KwaZulu-Natal
anti-poaching unit, was murdered in the St Lucia area in KwaZulu-
Natal;
(b) on Friday, 4 May 2001, Inspector Patrick Khuzwayo was murdered
in Esikhawini;
(c) on Saturday, 5 May 2001, Inspector Teboho Motseki was murdered
in KwaNdengezi; and
(d) on Monday, 7 May 2001, Inspector Mandla Maseko was murdered in
Ezakheni; and
(e) these latest tragedies mean that since January of this year at
least 21 KwaZulu-Natal policemen and women have been killed;
(2) expresses its concern at the tragic loss of life and expresses its condolences to the friends and families of the deceased; (3) salutes the members of the SAPS who have taken the safety and security of all South Africans as their duty; and
(4) rebukes those members of this Government who talk of putting an end to crime in this country, but who do not prioritise the needs and requirements of the members of the SAPS.
Dr S E MZIMELA: Madam Speaker, I hereby give notice that on the next sitting day of the House I shall move:
That the House -
(1) notes that the leader of the opposition party in Zimbabwe, Morgan Tsvangirai, is currently facing charges of terrorism and sabotage, and these charges have been referred to the Zimbabwean Supreme Court to test their constitutionality;
(2) notes that Mugabe, the strident critic of British colonialism, is using outdated colonial laws designed to suppress black resistance to colonialism, to silence his fiercest critic; (3) expresses the belief that this is just the latest in a string of attempts by Mugabe and the Zanu-PF to crush opposing voices by harassing the judiciary, arresting journalists, attacking foreign businesses and threatening diplomatic missions;
(4) notes that the recent resignation of a senior cabinet minister in Zimbabwe and his virtual fleeing of the country is further proof that Zimbabwe is edging ever closer to the abyss; and
(5) calls on the ANC to acknowledge and publicly admit that any leadership that cannot deal with external or internal dissent is guilty of tyranny and …
[Time expired.]
The DEPUTY SPEAKER: Order! May I request hon members that when I ask them to stop speaking, they do so, and to note that their notices of motion will in any case be printed in full, even though their time expired while they were speaking.
Ms I MUTSILA: Madam Speaker, I hereby give notice that on the next sitting day of the House I shall move on behalf of the ANC:
That the House -
(1) notes that -
(a) a pregnant woman was killed when she fell out of a speeding
ambulance that was rushing her to hospital in the Northern
Province the day before yesterday; and
(b) a nurse from Tintsaolo Hospital in Acornhoek was sitting in the
front of the ambulance with the driver, and left Refiloe Masia
of Greenvalley village alone in the back of the vehicle;
(2) believes that this occurrence could have been avoided if the necessary precautions were followed;
(3) calls for a thorough investigation of this incident and appropriate action against anyone found guilty of negligence in this regard; and (4) conveys our heartfelt condolences to the Masia family.
[Applause.]
Dr M S MOGOBA: Madam Speaker, I hereby give notice that on the next sitting day of the House I shall move on behalf of the PAC:
That the House -
(1) congratulates Iran on hosting a historic international conference in support of Palestine;
(2) notes the growing anger of the Moslem and Arab states regarding the explosive situation in Palestine;
(3) further notes that our country, as Chair of the Non- Aligned Movement, has chaired a meeting on Palestine and has been given the task of helping to bring peace between Israel and Palestine; and
(4) calls on America to play a constructive and reconciling role in this war-torn area and thus help the Palestinians to regain their land, and ensure that Jerusalem can live up to its name which means ``foundations of shalom or peace’’, and can become home to Jews, Christians and Moslems and, therefore, become a citadel of peace, reconciliation and hope for the world.
Mr I S MFUNDISI: Madam Speaker, I hereby give notice that on the next sitting day of the House I shall move on behalf of the UCDP:
That the House -
(1) notes that -
(a) the licence of the Mmabatho Airport has been reinstated after
the provincial government was shaken by the suspension of the
licence because of noncompliance with safety and other
regulations;
(b) the jolt could have served as a wake-up call, as an application
to confer international status on the facility has been filed so
as to ensure that the airport serves the purpose for which it
was built some 15 years ago; and
(c) flight services between Johannesburg and Mmabatho will resume
shortly; and
(2) commends the provincial government for having injected cash into the airport revival programme.
Mrs Z A KOTA: Madam Speaker, I hereby give notice that on the next sitting day of the House I shall move on behalf of the ANC:
That the House -
(1) notes the sentencing of Mogammat Fazile Orrie to 12 years in prison for screwdriver attacks on women, one of which shocked the nation when footage of the attack in Sea Point was screened on national television;
(2) welcomes the heavy sentence and commends the justice system for the speedy conclusion of the case; and
(3) gives warning to criminals that this Government will do everything in its power to end the scourge of crime that threatens and undermines our transformation into a just, free and democratic society.
[Applause.]
Mr W J SEREMANE: Madam Speaker, I hereby give notice that on the next sitting day of the House I shall move on behalf of the DP:
That the House -
(1) notes -
(a) the advertisement that appeared in the Sunday Times of 5 May
2001 in which a group of 11 businesspeople indicated their
undying admiration for President Mbeki and his Government; and
(b) that this group blamed the media, but also suggested that the
conspiracy also extends to a ``right-wing group consisting of
liberals and apartheid hold-overs'';
(2) reminds the group that President Mbeki is one of us, a fellow citizen, and therefore will constantly be under scrutiny by all South Africans; and
(3) dismisses with contempt what is nothing more than a transparent attempt by people belonging to a select clique to curry favour with the President and interfere with freedom of expression in South Africa.
[Applause.]
Dr R RABINOWITZ: Madam Speaker, I hereby give notice that on the next sitting day of the House I shall move:
That the House -
(1) notes with concern -
(a) the poisoning of schoolchildren in the Eastern Cape with
aflatoxin in their peanut butter since aflatoxin is a
carcinogen; and
(b) the fact that they continued to be fed this peanut butter even
after the mistake was discovered; and
(2) calls on all Ministers linked to this programme, in particular the Minister of Health, to investigate how this arose and to improve controls and accountability so that children receive only safe and nourishing products in the feeding scheme.
Mr H P CHAUKE: Madam Speaker, I hereby give notice that on the next sitting day of the House I shall move on behalf of the ANC:
That the House -
(1) notes the annual report of the Banking Adjudicator, Neville Melville,
which indicates that banks are not equipped to deal decisively with
consumer complaints'' and thatcomplaints are often viewed as a
nuisance rather than an opportunity’’; and
(2) calls on banks to develop -
(a) a more consumer-friendly approach to doing business; and
(b) service ethics that honour the rights and dignity of clients,
particularly those who are new to using the services of the
banking sector, in the belief that banks have a critical role to
play in the transformation of this country.
Mr A Z A VAN JAARSVELD: Madam Speaker, I hereby give notice that on the next sitting day of the House I shall move on behalf of the New NP:
That the House -
(1) notes with alarm that -
(a) the Herfsakker old-age home in Nelspruit is in dire financial
straits due to overdue subsidy payments by the Mpumalanga
welfare department; and
(b) the old-age home has not received its government subsidy for the
last two months and there have been no subsidy increases since
1994;
(2) further notes that -
(a) according to the manager of the home there is currently no money
to buy groceries, which means that Herfsakker is reliant on
donations from supermarkets and farmers; and
(b) the building also requires urgent maintenance work;
(3) finds this situation unacceptable and urges the Department of Social Development to look into this matter and to rectify the situation; and
(4) calls on the Department of Social Development to take up its responsibility and to commit itself to delivering the required services to all the people of South Africa.
Mr M N RAMODIKE: Madam Speaker, I hereby give notice that on the next sitting day of the House I shall move on behalf of the UDM:
That the House -
(1) notes the negligent loss of life in the Northern Province, when a mother and her unborn baby fell out of an ambulance while they were being transported to the hospital;
(2) calls upon the Government to -
(a) urgently investigate the matter; and
(b) create mechanisms that would protect all citizens who make use
of such important public services as ambulances; and
(3) considers this to be confirmation of the ANC’s complete and utter inability to deliver basic health services to the people.
Mr M T GONIWE: Madam Speaker, I hereby give notice that on the next sitting day of the House I shall move on behalf of the ANC:
That the House -
(1) notes the reports in the media about alleged criminal behaviour and unprofessional conduct by some members of the SAPS VIP Protection Unit;
(2) believes that the VIP Protection Unit is an elite unit which should be the pride of the SAPS through high levels of professionalism and efficiency;
(3) congratulates those members of the SAPS VIP Protection Unit and other members of the Police Service for executing their responsibilities diligently; and
(4) calls on the Department of Safety and Security to intensify its efforts to eradicate corruption in the Unit and the SAPS in general.
EXPLOSION AT BEATRIX MINE
(Draft Resolution)
The CHIEF WHIP OF THE MAJORITY PARTY: Madam Speaker, I move without notice:
That the House -
(1) notes that methane gas exploded at Shaft No 2 of the Beatrix Mine in the Free State, resulting in 12 miners losing their lives;
(2) expresses its condolences to the families of the deceased and their colleagues and friends;
(3) wishes those who sustained injuries a speedy recovery; and
(4) calls on the Minister of Minerals and Energy to expedite the investigation into this horror accident.
Agreed to.
ALLOCATION OF SPEAKING TIMES
(Draft Resolution)
The CHIEF WHIP OF THE MAJORITY PARTY: Madam Speaker, I wish to amend Motion No 1, as printed in my name on the Order Paper, as follows:
That, notwithstanding Rule 106, the following times be allocated to parties for today’s debate on the statement of the Minister of Health:
Minister: 10 minutes; African National Congress: 9 minutes; Inkatha
Freedom Party: 4 minutes; New National Party: 8 minutes; United
Democratic Movement: 2 minutes; all other parties, with the exception
of the Democratic Party and the Federal Alliance: 1 minute each.
Agreed to.
COURT CASE BETWEEN GOVERNMENT AND PHARMACEUTICAL COMPANIES
(Statement)
The MINISTER OF HEALTH: Madam Speaker, hon members, nearly a year ago during the course of the debate on the Vote on Health, I asserted that this Government had generated an unstoppable current across the globe, a vigorous movement in the defence of the right of poorer nations to secure the medicines that we desperately need to alleviate misery and save lives. I was referring to our enactment of the Medicines and Related Substances Control Amendment Act of 1997 and I defended this law in the face of a concerted attack by the pharmaceutical industry.
Events of the last two months have shown the validity of the claim we made a year ago. Our efforts and the weight of international pressure brought to bear - through the media, through our Government and through thousands of activists here and abroad - on some of the most powerful corporations in the world to led to their conceding defeat and abandoning the action which had been intended to destroy the medicines control Act.
The withdrawal of the pharmaceutical industry was unconditional. We have emerged with the medicines control Act undiluted and unaffected, and with our legal costs being carried by the parties who took us to court in the first instance. The only undertaking that the South African Government gave was to consult with the pharmaceutical industry on access to affordable medicines and specifically on the finalisation of regulations under the medicines control Act. We view this renewed commitment to consultation not as a burden but as an opportunity.
I would like to acknowledge the critical intervention of the UN Secretary- General, Kofi Annan, and our President, President Thabo Mbeki - an intervention that opened the door to the last-minute resolution of the case. And I would like to recognise the spirit in which the pharmaceutical industry faced the reality and acted decisively to change direction. Mr Bob Armitage of Merck, who served as the industry’s interlocutor with Government, indeed deserves a special mention in this regard.
The purpose of reporting to the Assembly is not simply to celebrate the survival of a vital piece of legislation, but also to clarify a number of matters that became clouded as publicity around the court case increased. One of the persistent myths of the case was that the Government intended, through the medicines control Act, to circumvent or override international patent agreements in order to secure cheaper medicines. Precisely the opposite is the case. Indeed, Government attempted, through the medicines control Act, to indeed reconcile its responsibility to improve access to health care for our people with its obligations to honour its international trade obligations, including the agreement on Trade-Related Aspects of International Property Rights. We have repeatedly asserted this position, and we would have argued it vigorously in court.
We believe there is room to manoeuvre within the Trips agreement, and that developing countries need to act in solidarity to preserve and explore this space, to expand it if possible, but, most certainly, to contest its erosion with all the power at our disposal. The forthcoming session of the World Health Assembly, starting in Geneva in a few days’ time, will serve as a platform for poorer countries to preserve this position. South Africa will, therefore, alongside other nations, indeed defend this position.
In the heat of the campaign, the medicines control Act came to be projected principally as a weapon to be used to secure antiretroviral therapy for South Africans living with HIV/Aids. It is understandable that this occurred. Not only were Aids activists some of the staunchest supporters of the Government’s case, but the sheer size and seriousness of HIV/Aids will always ensure that it is written boldly in our own health agenda.
But we must be clear that the medicines control Act is a piece of legislation that empowers us to secure various classes of medicines, not only Aids-related drugs, at cheaper prices; that is designed to impact on the health care system in its totality, including the private sector and the medical aid schemes; that ensures that the quality of medicines is not compromised in the process of reducing the cost; and that attacks various practices, including perverse incentives, that unnecessarily drive up the cost of medicines in South Africa.
The public debates that have raged around parallel importing and compulsory licensing, important though they are, do not represent the full range of provisions of the medicines control Act. There is, for instance, an important section on generic substitution that obliges the pharmacist to offer the consumer a cheaper generic product when the medical practitioner ignores this option in favour of a very expensive brand. The consumer does not have to accept the generic option and in some circumstances substitution will, indeed, not be possible. Of course, generic substitution is perfectly permissible without a law to enforce it, but the brand-focused prescribing culture in this country and the disempowerment of health consumers have militated against this.
The medicines control Act will strengthen the hand of the service user and yield enormous benefits for medical aid schemes. We are confident that the medical aid schemes will take full advantage of the enabling provisions and provide incentives to members to take generic options. It is also interesting to note that the Pharmaceutical Society of SA announced yesterday that pharmacists will in future be supplying medicines at cost price to the public, deriving their profit entirely from a restructured professional field.
The Act tackles a number of potential distortions and unethical practices in the prescribing of medicines. Firstly, as soon as the Act is promulgated the pharmaceutical industries’ habit of providing incentives to doctors through bonusing sampling will, indeed, be outlawed. For example, it means that we will not allow doctors to get kickbacks in the form of trips to Mauritius on holiday at the expense of the pharmaceutical companies.
It is very difficult, of course, to quantify the impact that these incentives have on inappropriate prescribing, but the potential always exists. The scale of these perverse incentives is cause for real concern as recurring newspaper headlines on medical kickbacks always appear. The Act also provides that doctors will require special registration if they intend to dispense medicines and prescribe them. The scarcity of pharmacists in certain localities has led to these merging of functions, in other words, prescribing and also diagnosing. The Act acknowledges this reality, but sets controls in place to ensure that the welfare of the consumer is uppermost, not the financial interest of the prescribing doctor.
At the same time, we are taking measures to introduce pharmacists into underserved areas as a strategy that is reinforced by the system of community service for pharmacy graduates. In addition, the Act empowers the Minister of Health to set in place a code of ethics for the marketing of pharmaceutical products. In short, this is a law that provides an arsenal of weapons to be used in combination in the war for more affordable health care. What we are looking at is a comprehensive framework that will enable us to address the question of accessible and affordable medicines in a purposeful and sustainable manner, independently of the unpredictable actions of international donors.
The measures are not focused specifically on the procurement of antiretroviral drugs or even on the Aids challenge, but they are clearly to be harnessed to tackle the enormous task of improving HIV/Aids treatment and care. There is a fundamental flaw in the approach that sets Aids up in opposition to other health care advances. An adequate response to HIV/Aids depends critically on getting our delivery systems operating as economically as possible. This is what the medicines control Act is all about. Central to its successful implementation are two structures, firstly, an existing statutory body and, secondly, an entirely new creation. I am referring in this regard to the Medicines Control Council and the ministerial pricing committee.
With the introduction of parallel importing and the move towards international drug tendering, the Medicines Control Council’s work will become more complex. The MCC is the public’s financial guarantee that drug safety will never be sacrificed in our mission to secure advantageous drug prices. The ministerial pricing committee will be appointed shortly after the promulgation of the Act. It is, in the first instance, an advisory body to the Minister. The wise use of the provisions of this Act will depend largely on the expertise we are able to assemble in this committee. One of their key roles is to advise the Minister on developing a transparent pricing system for all medicines.
The pharmaceutical industry littered its court papers with accusations of Government authoritarianism and the abuse of ministerial power, some of which was attached to the provisions of the pricing committee and the pricing system. The mechanism we are contemplating is entirely legitimate and is similar to those existing in a host of established democracies which are widely regarded as champions of free trade.
I want to assure members of this House that the Department of Health has wasted no time since the sudden end of the court case. Regulations have been drafted and are currently being refined by our experts. Our commitment to consult with the pharmaceutical industry will, of course, extend beyond representations on the regulations. Tonight I leave for London with a group of senior officials to meet with representatives of the pharmaceutical companies.
There is a trend, worldwide, to tackle the massive public health problems of the developing world through global partnerships that result in an unprecedented pooling of resources. In relation to HIV and Aids, we have witnessed a shift in the approach on the international front, from a dimensional debate on relatively cheaper drugs to an appreciation of the comprehensive package of inputs required for sustainable and successful treatment programmes.
Thanks must go, in the main, to our insistence on this approach. Of course, in this instance, we must recognise the role played by our President. As a Government, we have, indeed, consistently argued that our access to affordable medicines and, indeed, to affordable health care, cannot be governed by a begging bowl or the whims of foreign donors. We refused to view occasional offers of drug donations as a substitute for the promulgation of a law that would facilitate access to medicines on a sustainable basis. Now that the medicines control Act is safe and legitimate, and the legitimacy of our position has been publicly recognised, partnership becomes a much more authentic option, all the more so because of the principles developed by the SADC region to guide our interactions with prospective donors of medicines for HIV. In essence, SADC principles emphasise the need to locate HIV and Aids drugs offers within national planning for the health care sector as a …
The DEPUTY SPEAKER: Order! Hon Minister, will you please wind up now?
The MINISTER: I am just about to finish, Madam Speaker. Just one more paragraph. The medicines control Act case has demonstrated that governments and people acting together across national boundaries have the power to hold huge multinational corporations accountable for their actions. [Applause.]
Dr R RABINOWITZ: Madam Speaker, we of the IFP are relieved and hopeful, following the settlement of the Act under discussion, which, in essence, was challenged because it gives the Minister of Health the right to issue licences for medicines overriding patents. We are relieved because we did not believe that the Act interfered with the Government’s ability to provide cheap Aids medication, and I am not surprised that the Minister made little reference to this issue.
We are hopeful, because we believe that the way is now clear for better communication and a stronger partnership between the Department of Health and the pharmaceutical companies. If the Government now negotiates in good faith with pharmaceutical companies and adheres to safe regulatory procedures with regard to the importation of medicine and price reductions, then all parties - but, most importantly, the South African people - are winners.
We acknowledge Government’s concern that the treatment of nearly 500 million people with HIV or Aids would require more than the country’s health budget, but we also recognise that we can no longer not afford to treat HIV and Aids. Our challenge now is to decide who to treat, when and how to monitor the treatment, so that we do not produce new and resistant strains of the disease which would become impossible to treat here and, eventually, throughout the world. Not to treat people with HIV and Aids would increase human suffering, it would contribute to denial, keep the disease underground, take a huge toll on the industry, place an unbearable burden on our limited state health services and cause a steady erosion of morale, with a build up in fear, secrecy and helplessness. Why should we choose such misery instead of giving people an incentive to be tested, helping them to know their HIV status, be open and roll back denial of the disease? It would be unforgivable if we wring our hands in public, while we privately turn our backs on the soldiers smitten by this war.
Ironically, we do not need the infamous section 15C to provide cheaper Aids medication. We could do so now, we could have done so yesterday and, hopefully, we will begin to do so tomorrow. Why and how? Through the normal Government tendering process in terms of which we could invite tenders from seven pharmaceutical companies manufacturing Aids drugs.
Normally this procedure results in medicines being bought by the state at approximately a tenth of the price to the private sector. Furthermore, if Government embarks on one-on-one negotiations with pharmaceutical companies to get the most competitive prices, they often obtain medicines at prices lower than anywhere on world markets, as was the case with Crixivan offered by Merck to developing countries at prices below those from the WHO; and below the cheapest generic prices offered by Cipla and Hetero. If Government embarks on these programmes and still finds that it can obtain generics or imported medicines at lower prices than in South Africa, it can apply to the Department of Trade and Industry to issue a compulsory licence that overrides the patents and allows the medicines to be imported.
This process is transparent and the control of the imported medicine is reliable. Government has not followed this route, and the question arises as to why the court case was ever made to appear so relevant to the Aids debate. The companies withdrew that challenge on the understanding that although the legislation allows for patents to be ignored, the Government will enter into good faith negotiations with the companies, respect patent rights and override them in a manner concordant with the Trips accord. The IFP supports this route, as we have never believed that it is in the long- term interests of the country to override patent laws. We also believe that it is extremely important for the safety of the public that medicines entering this country are subjected to tight, transparent monitoring.
When third parties can receive ministerial licences to import medicines in an arbitrary fashion, outside the normal channels of control, this immediately exposes us to the risks of counterfeits and harmful drugs. The agreement reached allows the pharmaceutical companies to participate in the drafting of regulations to control such important matters and this assuages our fears in this regard. But this is the beginning of an uphill battle. Now we must work with the international community, the pharmaceutical companies and donor NGOs to improve access to medicines and funding. [Time expired.]
Dr S J GOUS: Madam Speaker, the DA welcomes the termination of the pharmaceutical court case and hopes that it will clear the way for closer co-operation between the pharmaceutical industry and Government. But it also removes one of the major excuses of the Government for their total inactivity on the antiretroviral front.
The Medicines and Related Substances Control Amendment Act, Act 90 of 1997, was an amendment to Act 101 of 1965, the so-called medicines control Act. It contained many contentious elements, of which section 15C is probably the most well known. This section allows the Minister of Health to override the Patents Act in terms of medicine without any due process. The pharmaceutical industry instituted legal action against the Government, and the implementation of the Act was suspended pending the court case.
The Government and the Department of Health then tabled the so-called Sammdra Act, the South African Medicines and Medical Devices Regulatory Authority Act, which led to the suspension of the court case in August
- During the finalisation of the Sammdra Act, schedules were added which then inserted some critical aspects of Act 90 into the Sammdra Act, which led to the reopening of the court case. The Sammdra Act was then promulgated but without any regulations, which led to the famous court case which Government had to institute against itself to nullify the so-called Sammdra Act, and which led to the position that we again operated under Act 101 of 1965.
Now all this just tells you one thing - that medicine control is in a mess. If one has to summarise the problems associated with Act 90 of 1997, it would be that medicine control measures are contaminated by medicine pricing control measures. Section 15C allows for parallel importation and compulsory licensing. At that time, the Department of Health’s own figures said that it would bring down the price of state medicines by about 10%. Other contentious issues were mandatory generic substitution, the severe restriction of dispensing doctors, pricing committees and many other issues. We can also remember that antiretrovirals were not on the table at the time of the promulgation of this Act.
The Pharmaceutical Manufacturers Association’s court case was, inter alia, based on the constitutional question of whether a Minister can override another Act of Parliament. The court case was terminated owing to severe international and local pressure and threats of institutionalised disinvestment in the pharmaceutical industry, and not owing to any legal principles. That means that the legal constitutional question has not yet been answered or settled.
The Minister of Health gave written notice that she intended withdrawing the so-called Sammdra Act. Even if the Medicines and Related Substances Control Amendment Act, Act 90 of 1997, were to be implemented today, we would still have deficiencies in medicine control, with, for example, complementary medicine, medical devices, the re-registration of medicine every five years, the scheduling of medicines, the structure of the Medicines Control Council and veterinary medicine. It is therefore clear that medicine control is still in a very poor position and we therefore ask the Minister of Health to clearly spell out the path forward, including the timescales and what legislation is envisaged.
Ninety-five per cent of Government’s essential drug list consists of off- patent medicines, which means generic medicines. Therefore, Act 90 of 1997 will only have an effect on a select few medicines as far as the state is concerned. The state has also not used its considerable power of tender, taken offers on the table by the industry or taken international donor help in terms of antiretrovirals. We therefore predict that the Act will have a very minor effect on the medicines, as far as the state is concerned, but this might be at the cost of medicine control.
In the private sector one can expect a lowering of prices in certain sectors. Some of the consequences of this court case may be that the pharmaceutical industry withdraws from or disinvests in South Africa, remembering that we represent less than 1% of their world turnover. This might also lead to the position in which there is no more research and development done in respect of so-called poor medicines, that is, medicine for TB, Aids, malaria, etc, because they have become too politically sensitive. The question then arises: Where will the eventual cure and effective treatment for these diseases come from, because the chances of them not coming from the pharmaceutical industry are, indeed, very remote?
Parallel importation and compulsory licensing could be detrimental to medicine control. This was very graphically proved by Mr Achmat, who illegally brought a large quantity of drugs into this country. Today the DA would like to know what the status is of the charges that were brought against him for contravening Act 101 of 1965. The DA has been accused of not taking sides in this court case. The reason is very simple: the DA respects the constitutional right of any body or individual to take any matter to court for a ruling and, therefore, did not want to prejudge this court case. The DA’s position is that we shall support any legal measure to make drugs more accessible and affordable.
Now that one of the major excuses of the Government for the nondelivery of antiretrovirals has been removed, the focus will shift to delivery by Government. It will be very interesting to see what the new excuse will be for the nondelivery of antiretrovirals to the public. With the termination of the court case, the DA now expects the Government, firstly, to deliver cheap, affordable antiretrovirals to the public and Aids sufferers; secondly, to change their policy on antiretroviral treatment for Aids sufferers; thirdly, to roll out an extensive mother-to-child prevention programme in terms of HIV/Aids using antiretrovirals; fourthly, to maintain effective medicine control; and, fifthly, to provide practical and workable medicine control legislation within the foreseeable future because the legislation, as it currently stands, is still seriously flawed. [Applause.]
The DEPUTY SPEAKER: Order! Hon members, we are now going to call on the hon Maseka to make his maiden speech.
Mr J T MASEKA: Madam Speaker, hon members, we in the UDM notice with great concern the far-reaching implications of the recent court case between the Government and the pharmaceutical companies. It is clear that the pharmaceutical companies did not lose the case in court, but withdrew their action against the Government owing to pressure exerted on them by external and internal forces of civil society, more particularly, internally, from Cosatu, the Treatment Action Campaign, etc.
The ANC-led Government is now faced with the responsibility of supplying the generic drugs to HIV/Aids patients and expediting an awareness campaign. This awareness campaign must be funded by the Government and must particularly focus on the youth of the country, as prevention is better than cure. The pressure groups mentioned above should exert the same pressure they exerted on the pharmaceutical companies on the Government to supply these generic drugs as a matter of urgency. The Government should not come with excuses that there are no funds to purchase these drugs.
The court case between the Government and the pharmaceutical companies is a milestone in our country and although the Government could regard this as a victory, it is now faced with the challenge of supplying these generic drugs/antiretroviral medicines to the growing numbers of HIV/Aids patients. The UDM supports any form of constructive engagement between the hon the Minister and foreign countries in acquiring these urgently needed generic drugs.
Ms C DUDLEY: Madam Speaker, in the Sunday Argus of 22 April, after the initial jubilation over the withdrawal of legal action by pharmaceutical manufacturers, Aids activists responded with disappointment when the hon the Minister of Health made it clear that providing antiretroviral drugs was not a Government priority. Big business now appears to have taken up the challenge and is aiming to supply cheap anti-Aids drugs which the state has so far refused to allow into the public health system.
This could take the heat off Government. However, less than a month after the Government won its legal victory, the authorities could be facing another legal challenge. This time it is over the Government’s delay in making supplies of Nevirapine to prevent mother-to-child transmission of HIV/Aids freely available to the public. Nevirapine has now been registered for use after a long battle, in spite of the unwillingness of the hon the Minister, department officials and the MCC to do so.
This is a major victory for victims of HIV/Aids, but, like the withdrawal of the legal action, it is useless if Government’s hands are mysteriously tied when it comes to following through with positive action. The ACDP calls on the Government to urgently see to it that Nevirapine is made available for use by HIV-positive pregnant mothers.
Dr P W A MULDER: Mevrou die Speaker, medisyne en die prys van medisyne word vir almal in Suid-Afrika ‘n groot probleem, dit word onmoontlik duur.
Die Reserwebank het verlede jaar bevind Suid-Afrikaanse huishoudings bestee tans R10 000 miljoen aan mediese en farmaseutiese produkte. Sewe jaar gelede was dit omtrent R3,3 000 miljoen. Naas vervoer, wat met die petrolprys verband hou, het die mediese en apteekuitgawes van die gewone verbruiker die afgelope tyd dus die meeste gegroei.
Ons kan nie so aangaan nie. Die hofsaak was belangrik om duidelikheid oor die saak te kry en het geprobeer om die saak na ‘n kant toe op te los. Aan die ander kant help dit egter nie ons slaag daarin om medisynepryse te verlaag en aan die ander kant bly die gehalte daarvan daardeur in die slag nie.
Uit die ooreenkoms ná die hofstryd blyk dit dat die Minister ook toegewings ten opsigte van die patentregte van vervaardigers moes maak. Dit is ‘n versekeringspolis dat ons nie minderwaardige medisyne in Suid-Afrika sal kry nie.
Die VF verwelkom die nuwe benadering wat ons by aptekers vind. Hulle beskou hulself as professionele mediese personeel eerder as sakemanne wat net wins wil maak. Dit help in dié sin dat ‘n professionele tarief gehef word in plaas daarvan om deurlopend wins te probeer maak.
Die VF meen ons maak vordering. Ons is egter ook bekommerd dat ‘n mens nie verwagtinge moet wek dat daar skielik ‘n kitsoplossing is en dat alle medisyne van môre af goedkoper gaan wees nie. (Translation of Afrikaans speech follows.)
[Dr P W A MULDER: Madam Speaker, medicine and the cost thereof is becoming a big problem for everyone in South Africa; it is becoming prohibitively expensive.
The Reserve Bank found last year that South African households are currently spending R10 000 million on medical and pharmaceutical products. Seven years ago it was approximately R3,3 000 million. With the exception of transport, which is related to the fuel price, the medical and pharmaceutical expenses of the ordinary consumer have therefore grown the most in recent times.
We cannot go on like this manner. The court case was important to help clarify the issue and tried to solve the problem in some way or other. On the other hand, however, it does not help if we manage to lower the cost of medicine, while the quality deteriorates in the process.
From the agreement which followed the court case, it would appears that the Minister also had to make consessions with regard to the patent rights of manufacturers. This is an insurance policy that we will not be getting inferior medicine in South Africa.
The FF welcomes the new approach we find among pharmacists. They regard themselves as professional medical personnel rather than businessmen who only want to make a profit. This helps in the sense that a professional tariff is imposed instead of constantly trying to make a profit.
The FF is of the opinion that we are making progress. However, we are also concerned that one must not create expectations that this is a quick fix and all medicine is going to be cheaper as from tomorrow.]
Mr I S MFUNDISI: Madam Speaker and hon members, it is good that the stand- off between the Government of South Africa and the Pharmaceutical Manufacturers Association ended in the way it has. It dawned on the drug companies that their image was being considerably damaged, while the Government, on the other hand, showed maturity in two respects. Firstly, it assured the drug companies that it would consult them if the need arose. Secondly, it committed itself to respect the rights outlined by the World Trade Organisation’s Agreement on Trade-Related Aspects of Intellectual Property Rights.
We hope that the Government has become wiser from the recommendation of UNAids, which states that countries should include in their national legislation the possibility of using safeguards, as permitted by the Trade- Related Aspects of Intellectual Property Rights.
And, finally, we also hope that the Ministry of Health will be very prudent in considering offers from drug companies, so that the supply of generics to the market will be done to the benefit of patients.
Dr M S MOGOBA: Madam Speaker, the PAC welcomes the decision of the court in the case between the Government and the pharmaceutical companies. We congratulate the Government and, particularly the Minister of Health on their initiative and action.
However, now that the case is over, our interest is in the implementation strategy. A few questions need to be asked. Did the Minister say that HIV patients should continue to rely on vitamins and that antiretroviral drugs would not be available to the public? Will the Minister include the Treatment Action Campaign in the talks with Europe next month, for which she is leaving tonight? I wish her bon voyage. And, since the Government planned to provide services regarding mother-to-child transmission at 18 centres, a service to 5% of the mothers, has the Government implemented this? At least 200 babies a month could have been saved from HIV and early death.
This victory must be fully appropriated and used for the benefit of the nation and particularly the poor.
Miss S RAJBALLY: Madam Speaker, the MF applauds the settlement victory between the Government and the pharmaceutical companies, commends the pharmaceutical companies on recognising the need to withdraw the court action, and appeals to both parties to work together to meet the challenges in the search for new medicines and other vaccines which are affordable to the affected people of South Africa.
The MF further requests that both parties share resources and knowledge, and commit themselves to combating any killer disease that is destroying our population, especially our younger generation who are the leaders of tomorrow of our country. The MF also wishes both parties all the best at the end of this and supports the statement by the Minister of Health on the court case between the Government and the pharmaceutical companies.
Let us work together as a nation in promoting peace and good health amongst all, by pooling all our efforts and reducing the rate of crime, poverty and disease.
Mnr C AUCAMP: Mevrou die Speaker, ‘n hofsaak tussen die Regering en ‘n groot deel van die sakewêreld is nooit ‘n goeie ding nie.
Dié saak was die gevolg van ‘n kleitrappery en ‘n gebrek aan kommunikasie wat nooit moes plaasgevind het nie. Die spreekwoord sê ``end goed, alles goed’’ en daarom wil ons in ‘n maand van baie drama en baie terugslae vir die ANC en die Regering, in ‘n maand van komplotte en gerugte van komplotte, sê kom ons gun die ANC vandag die vreugde dat die saak darem goed afgeloop het.
Ons moet die aandag daarop vestig dat dit slegs die de jure-posisie is wat nou opgeklaar is en nog nie die de facto-posisie nie. De jure kan daar nou dinge gebeur. Die vraag is of die Regering werklik die geleentheid gaan benut om die voorkomende medisyne te verskaf wat vigs moet bekamp? Gaan die Regering ook dié geleentheid gebruik om werklik die stygende pryse van medisyne in die algemeen hok te slaan ten bate van alle Suid-Afrikaners in die land? Ons is bly oor die uitslag van dié saak. (Translation of Afrikaans speech follows.)
[Mr C AUCAMP: Madam Speaker, a court case between the Government and a large component of the business world is never a good thing.
This case was the result of floundering and a lack of communication which should never have taken place. The saying goes ``all’s well that ends well’’ and consequently, in a month of high drama and many setbacks for the ANC and the Government, in a month of conspiracies and rumours of conspiracies, we say let us not begrudge the ANC their delight that the matter has turned out well.
We must draw attention to the fact that it is only the de jure position which has now been cleared up and not the de facto position. De jure things can now happen. The question is whether the Government is really going to make use of the opportunity to supply the preventative medicine which must combat Aids? Is the Government also going to use this opportunity really to clamp down on the rising prices of medicine in general to the benefit of all South Africans in the country? We are pleased about the outcome of this case.]
Dr A S NKOMO: Madam Speaker, Deputy President, Minister of Health and former Minister of Health, all South Africans should be claiming the collapse of the drug companies’ attack on the medicines control Act as a victory that touches us all directly.
Few, in this House and in the community out there, had the opportunity to read the mountains and volumes of documentation that the case generated. But those who did, surely, realised that the drug companies - in their frenzy to protect their profit margins - resorted to any tactic that they could muster, including the accusation that Parliament itself had failed in its duty to properly consider the objections placed before it when approving the medicines control Act and that this Parliament had betrayed the Constitution on which it was founded. That was the kind of scenario we were faced with.
Hammers, tongs, chairs and tables were thrown at this Bill. Some of the people who are strangely quiet this afternoon were amongst the big chair- throwers during that period. [Applause.] The portfolio committee struggled through the heavy legalistic language to create a law that would give life to our political vision of affordable health care for all. [Interjections.] Why was that member so quiet when he came here today? The opposition vehemently opposed the Bill and sacrificed principle for profit. I assure members that we listened carefully to the arguments of the drug companies but ultimately rejected the legal fulminations that would have served their interest and nobody else’s. While the court case was a huge waste, a waste of energy and three precious years in the reform of drug-related aspects of heath care, we learnt valuable lessons.
Firstly, we learnt the lesson of the importance of honouring our commitment to the people of this country and to our Constitution. That is the lesson that we learnt. In the law-making process, whenever trade-offs are on the agenda, our guide should be the Constitution and the welfare of our people. Secondly, there is scope for assertiveness and principled manoeuvre even within the confines of international treaties that we did not design. They were certainly not created with the welfare of developing countries in mind.
The third and last lesson that I would like to draw attention to is more in the nature of a warning. It is the caution that victory can be bought at a high price but then simply discarded as a toy. In this regard, I appeal to health professionals across the country and particularly to those in our public health services to treasure and preserve the gains of this victory. In the course of our work, as a portfolio committee, we developed a comprehensive picture of health services in this country. We see both their successes and their shortcomings. We are acutely aware that the quality of care is often adversely affected by constrained resources.
As the provisions of the medicines control Act kick in, drugs will become more affordable and our patients in our hospitals and clinics will feel the benefits. It is therefore not a hollow victory. There would be no more shameful end to this historic battle than if the benefits were stolen from needy patients by unscrupulous health workers. Our Government has been uncompromising in exposing the ruthless profit motive of some of the world’s most powerful companies.
May I say that there has been a reference by the hon judge, Dr Gous, to the fact that the merits and demerits of the case were not tested and that its withdrawal was in response to overwhelming international pressure. At last the penny has dropped and he has started to understand people power for the first time. He even conceded, in his assumed position as a judge, that in fact the courts can defer to the power of the people. However, unfortunately, the hon judge Gous missed the point because there was an order of the court which actually said that the pharmaceutical companies recognised the legitimacy of the case of the South African Government. That is a court record. He can go and peruse that in one of his functions as a judge that that, in fact, is a court record.
That same court record also dismissed with costs the case of the hon member’s constituents, with whom he hobnobs when we are in the portfolio committee and from whom he receives pieces of notes, priming him on what he should say at that time. [Interjections.] But, unfortunately for Dr Gous - no longer the judge … [Laughter.] Somebody spoke here the other day and said that whenever the hon member has not been there, he wants to behave as if something that happened during that time had not happened because he had not been there. [Laughter.]
The court has upheld the legitimacy of the Medicines and Related Substances Control Amendment Act and has dealt with the issue of generic substitution. And now the hon member has come here today and spoken as if this did not happen. The hon member must please come back to the real world … [Laughter] … because this Parliament wants people who are living in the real world.
The hon member says that medicine control is in a shambles. When Dr Reese was here the other day, to brief the portfolio committee on issues related to the Medicines Control Council, he did not bother to attend. But he is alone in the world, as he was in 1964 when he walked out of the Commonwealth. [Laughter.] When the whole world moved in unison, he moved out of the Commonwealth. When the whole world walked in unison, he walked out of the United Nations. [Laughter.]
The Commonwealth has bestowed the highest honour on the former Chairperson of the Medicines Control Council, Dr Helen Reese, and has made her an OBE, if the hon member does not know. They have bestowed some form of acclaim, recognition and honour on the work that she has done, in spite of the hon member’s lamentations in his regrettable position as a judge in this country. [Applause.]
Debate concluded.
QUESTIONS AND REPLIES - see that book.
The House adjourned at 17:04. ____
ANNOUNCEMENTS, TABLINGS AND COMMITTEE REPORTS
ANNOUNCEMENTS:
National Assembly and National Council of Provinces:
- The Speaker and the Chairperson:
(1) The Minister of Foreign Affairs on 24 April 2001 submitted the
Diplomatic Immunities and Privileges Amendment Bill, 2001 as well
as the memorandum explaining the objects of the proposed
legislation, to the Speaker and the Chairperson in terms of Joint
Rule 159. The draft has been referred to the Portfolio Committee
on Foreign Affairs and the Select Committee on Economic Affairs by
the Speaker and the Chairperson, respectively, in accordance with
Joint Rule 159(2).
(2) The Minister of Health on 2 May 2001 submitted the National
Health Laboratory Service Amendment Bill, 2001 as well as the
memorandum explaining the objects of the proposed legislation, to
the Speaker and the Chairperson in terms of Joint Rule 159. The
draft has been referred to the Portfolio Committee on Health and
the Select Committee on Social Services by the Speaker and the
Chairperson, respectively, in accordance with Joint Rule 159(2).
TABLINGS:
National Assembly and National Council of Provinces:
Papers:
- The Speaker and the Chaiperson: Reports of the Auditor-General on the -
(a) Financial Statements of National Cultural History Museum for
1998-99 [RP 8-2001];
(b) Financial Statements of the National Arts Council for South
Africa for 1999-2000 [RP 35-2001}
- The Minister of Minerals and Energy:
Report and Financial Statements of the Council for Nuclear Safety for
1999-2000, including the Report of the Auditor-General on the Financial
Statements for 1999-2000.