School of Law

Letter to President Ramaphosa on the proposed covid-19 waiver, by South Africa and India at the world trade organisation

12 October 2020. 

Dear Honourable President Ramaphosa,

South Africa, along with India, has adopted a ground-breaking position at the World Trade Organisation (WTO) with the tabling of the proposal for a “Waiver from certain provisions of the TRIPS Agreement for the prevention, containment and treatment of COVID-19”. The proposal will be on the agenda of the WTO TRIPS Council on 15-16 October 2020.

As a group of academics, researchers and teachers affiliated to various South African institutions, we declare our strong support for this proposal.

Presently, intellectual property barriers (including patents, copyright, designs, trade secrets) prevent the level of knowledge-sharing and collaboration necessary to speed up product development, scale up manufacturing, and expand the supply of effective medical technologies to ensure equitable access to diagnostics, protective equipment, vaccines and medicines in order to mount the necessary global response to this pandemic.

We are calling on you, Mr President, to act – globally, regionally and domestically.

Act globally!

This proposal, if successful, will directly address the crisis that we are experiencing and which will continue, if the proprietary rights of the holders of intellectual property hold sway, at the expense of public health. This proposal has to succeed! It cannot be allowed to fail!

Act regionally!

We therefore appeal to you to galvanise the support of the African Union and its member states to stand united and support the proposal and to take further steps at the national level to override or bypass COVID-19-related intellectual property rights.

Act domestically!

Because the waiver, on its own, is not self-actualising at the national level, we further request that the government and parliament of South Africa expedite the process of implementing the long-awaited amendments to the Patents Act and other legislation, to replace the outdated regulatory regime with one that is consonant with our Constitutional order.

Most immediately, we call on government to urgently introduce emergency legislation to effect the waiver on the enforcement of all forms of intellectual property rights for the entire duration of the COVID-19 pandemic. Such a waiver is also possible under the security exception provided for under Article 73 of the TRIPS Agreement to take “any action which it considers necessary for the protection of its essential security interest … taken in the time of … emergency in international relations”. The COVID-19 pandemic is one such emergency necessitating a security exception.

Mr President, this proposal presents South Africa, and Africa, with a unique opportunity to demonstrate global leadership. Future generations will look back on this time and reflect on your decisiveness in taking the necessary action to place the lives of all people before the profits of narrow business interests, and avert further devastation by this pandemic. Such action will also signal that the African Union is taking a leading role in finding solutions to the pandemic, thereby re-writing the narrative of North-South relations.

We are confident that you will rise to the challenge!

Thank you.

Sincerely,

SIGNATORIES:

Professor Yousuf A Vawda, University of KwaZulu-Natal. Enquiries, email: VAWDAY@ukzn.ac.za 

Professor Brook K Baker, Northeastern University School of Law and University of KwaZulu-Natal.

Professor Caroline Ncube, University of Cape Town.

Mr Andy Gray, University of KwaZulu-Natal.

Professor Leslie London, University of Cape Town.

Associate Professor Tobias Schonwetter, University of Cape Town.

Professor Quarraisha Abdool Karim, CAPRISA SA and University of KwaZulu-Natal.

Dr Mamphele Ramphele, Member of the Academy of Sciences of South Africa.

Professor David McQuoid-Mason, University of KwaZulu-Natal.

Professor Malebakeng Forere, University of the Witwatersrand.

Professor Helen Schneider, University of the Western Cape.

Dr Varsha Bangalee, University of KwaZulu-Natal.

Professor Kaymarlin Govender, University of KwaZulu-Natal. 

Ms Lindiwe Maqutu, Lecturer, University of KwaZulu-Natal.

Mr Umesh Bawa, University of the Western Cape.

Dr Marietjie Botes, University of KwaZulu-Natal.

Associate Professor Wendy Burgers, University of Cape Town.

Dr Flavia Senkubuge, University of Pretoria.

Dr Arne von Delft, University of Cape Town.

Professor Hoosen Coovadia, Maternal, Adolescent and Child Health Systems (MATCH)

Ms Sandhiya Singh, University of KwaZulu-Natal.

Dr Mohamed Ishaaq Datay, University of Cape Town.

Professor Julian Kinderlerer, Universities of Cape Town, KwaZulu-Natal, and TU Delft.

Professor Mpiko Ntsekhe, University of Cape Town.

Mr Jay Kruuse, Rhodes University.

Ms Priya P Singh, University of KwaZulu-Natal.

Associate Professor Shajila A Singh, University of Cape Town.

Mr Bonginkosi Shozi, University of KwaZulu-Natal.

Professor Purshottama Sivanarain Reddy, University of KwaZulu-Natal.

Ms Anneleen De Keukelaere, People’s Health Movement South Africa.

Professor Diane Cooper, University of the Western Cape.

Professor Klaus D Beiter, North-West University, and Max Planck Institute, Germany.

Professor Sharon Prince, University of Cape Town.

Ms Nikki Schaay, University of the Western Cape.

Professor Lynette Denny, Groote Schuur Hospital Cape Town and SA Medical Research Council.

Distinguished Professor Catriona Macleod, Rhodes University.

Associate Professor Liz Gwyther, University of Cape Town.

Professor Muazzam Jacobs, University of Cape Town and National Health Laboratory Services.

Professor Alison V September, University of Cape Town.

Associate Professor Delva Shamley, University of Cape Town.

Associate Professor Shahieda Adams, University of Cape Town.

Professor Jennifer Moodley, University of Cape Town.

Professor Collet Dandara, University of Cape Town.

Professor Keymanthrie Moodley, Stellenbosch University.

Prof Mohamed F Jeebhay, University of Cape Town.


(Additional signatories to be added).