The first in this three-part series looks at how South Africans overcame the pharmaceutical patents blocking access to life-saving antiretrovirals during the country’s first epidemic, HIV and Aids.
South Africa has entered its third wave of the Covid-19 pandemic. In the wake of the devastation the coronavirus is causing in India, the United States has announced that it supports the Trade Related Intellectual Property Rights (Trips) waiver as far as vaccines are concerned.
One of the arguments made by those in opposition to this waiver is that patents don’t block access to medicines. But just 20 years ago, the struggle for affordable antiretrovirals (ARVs) made for dark days in South Africa’s HIV and Aids epidemic.
Mpumi Mantangana, a nurse known to her peers as Sis’ Mpumi, had been a nurse for about a decade by the late 1990s, when South Africa’s HIV epidemic became an Aids epidemic. “We didn’t have any experience with HIV. We didn’t know anything about HIV. We only knew HIV when we started to see people that are dying of HIV,” she said.
At the family planning clinic in Nyanga, where Mantangana worked, people would come to get tested for HIV. “I did the counselling and the testing. But now the problem was, where do you refer the patient? We couldn’t do anything as health workers, we couldn’t offer them anything.”
HIV could be treated with ARVs, but they were not available in the public sector. The prices in the private sector, at between R4 000 and R7 000 a month, were too costly for most people with HIV. “HIV was a very expensive disease that affected the very poor,” said Mantangana.
Big Pharma vs Nelson Mandela
The South African government sought to amend its laws in 1998 to allow the health minister to import more affordable generic medicines when in the interests of public health. At that time, the main concern was patented antibiotics.
Fearing that the inclusion of generic medicines into the South African health system would threaten profits and that other developing countries would follow South Africa’s example, the Pharmaceutical Manufacturers Association of South Africa (PMA) made up of 39 multinational companies took the government to court to prevent it from amending the law. The case came to be known as Big Pharma vs Nelson Mandela and the PMA argued that South Africa was violating the Trips agreement.
The case became a rallying point. The Treatment Action Campaign (TAC), Doctors Without Borders (MSF) and Act Up in New York and France carried out global and local campaigns to get the PMA to “drop the case”.
This happened on 19 April 2001 and the Doha Declaration on Trips and Public Health was adopted in December 2001, which made it clear that countries could bypass patents to access critical medicines.
In her book, No Valley Without Shadows, Marta Darder says: “The agenda in Doha was clearly a result of the international campaign that had sprung up around the case now universally known as Big Pharma vs Nelson Mandela”.
South Africa now had the ability to import more affordable medicines using mechanisms such as parallel importation or compulsory licencing, but never used them.
“Unfortunately, the government of the day was in denial. It was the Thabo Mbeki era and Manto Tshabalala-Msimang wanted people to take garlic and beetroot,” says Mantangana.
The MSF in Khayelitsha
The epidemic eventually affected Mantangana’s family when her younger brother fell ill and was hospitalised with cryptococcal meningitis, an illness associated with HIV. He was tested for HIV in hospital and the result was positive.
They moved her brother to Khayelitsha when they heard that the MSF had started an HIV treatment programme there. He was fortunately to be one of those enrolled. Shortly after his treatment began, a post opened up at the MSF and Mantangana began working for the organisation.
The MSF started the project in Khayelitsha to prove that it was possible to provide ARV treatment successfully in a low-resourced township. It accomplished this by using unregistered generic ARVs, which the Medicines Control Council had given them permission to use.
“When we started providing ARV treatment, people were coming in wheelbarrows. My brother started in those times,” said Mantangana. A report by the MSF says that of the 180 people who started ARV treatment in 2001, 85% of them showed high rates of improvement.
The Khayelitsha project was proving that ARV treatment was possible in South African townships, but the number of people receiving treatment was a drop in the ocean. It’s estimated that between 150 000 and 200 000 people died from HIV-related causes in South Africa in 2001 alone.
“We saw it as the government’s constitutional duty to provide ARV treatment,” said Mantangana.
Young, divorced and ready to fight
As the government refused to provide ARVs in the public sector, the TAC and Aids Law Project laid a claim at the Competition Commission against pharmaceutical companies GlaxoSmithKline (GSK) and Boehringer Ingelheim (BI). Hazel Tau, a young woman from Soweto, was the first complainant.
Tau had known she was HIV-positive since 1995. She had not hidden her status from friends, but being the first complainant meant that it would be known publicly. This did not bother her. “I was young, divorced and ready to fight for treatment,” she said.
The complaint was that the two pharmaceutical companies had used their patents to create monopolies on ARVs in the country, and that they were charging excessive prices for the life-saving medicines, infringing on the rights of consumers.
By the time the campaign started, Tau’s health had begun to deteriorate and she had lost 10% of her body weight. She became so ill on the night of the media launch of the campaign that she was rushed to hospital where she stayed for three weeks.
Tau was working as an HIV counsellor with a salary of R4 800 a month and could not afford the monthly R1 000 for ARVs. A doctor who heard about her deteriorating condition sponsored her treatment. Tau said this is the only reason she is alive today.
The Competition Commission said on 16 December 2003 that GSK and BI had settled on terms. These included issuing voluntary licences to three Indian manufacturers, allowing the import of those generic ARVs where local manufacturing was not an option, and allowing those licensees to distribute the generics to sub-Saharan Africa.
Tau said the cost of treatment dropped to R400 a month following the case, which was significant but still unaffordable for South Africa’s more impoverished residents.
Another barrier
While it was Mbeki’s government that refused to provide ARV treatment in the public sector, it was also the excessive prices for which patented ARVs were sold in the private sector that prevented people from accessing life-saving treatment at the height of South Africa’s HIV and Aids epidemic.
Breaking the monopolies of the pharmaceutical companies was thus a critical step along the way to providing national HIV treatment.
The success of the MSF’s programme in Khayelitsha was impossible to ignore, and the generic ARVs it used there proved that HIV treatment could be much more affordable than it was at the time.
The government agreed in 2003 to include ARV treatment as part of the country’s response to HIV, and began its first phase of rolling out treatment in 2004.
Having proven that it was possible to provide ARV treatment in a resource-poor area such as Khayelitsha, the next challenge was to prove that it was possible in remote Lusikisiki.
This project was funded by the National Geographic Society.