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Case 1: Open the Vaccine Contracts
The HJI v the Minister of Health; Information Officer, National Department of Health
This case is essentially about vaccine procurement secrecy and the public’s right to access information in a pandemic.
By February 2022, at least 30.5 million vaccines were administered in South Africa. South Africa has received several millions of vaccine doses by directly buying from pharmaceutical companies, or through the COVAX facility or by receiving donations.
Those vaccines have been procured at great cost – we do not know how much exactly, but the 2021 National Budget alone allocated an amount of R10-billion for the purchase of Covid-19 vaccines.
The public does not know the content of these agreements or the complete details of the contracting parties.
What is the case about?
- The Health Justice Initiative (HJI) is aware that the South African government, likely acting through the National Department of Health entered into agreements with private manufacturers and/or suppliers for the supply of Covid-19 vaccines. We filed access to information requests (using the Promotion of Access to Information Act or PAIA) to obtain copies, which were refused.
- Because there has been no public disclosure of the contracting parties, the HJI cannot determine them with certainty because of the multiple parties involved. We also tried to get the contracting parties’ identities, but our requests were ignored/refused.
For this reason, the HJI filed legal papers against the South African Minister of Health and the National Department of Health’s Information Officer. This case is essentially about vaccine procurement secrecy and the public’s right to access information in a pandemic.
The HJI argues that:
The lack of vaccine procurement and contracting transparency-
- violates the Constitutional principle that the public administration must be accountable. The National Department of Health must foster transparency by providing the public with timely, accessible, and accurate information.
- undermines the public’s Constitutional right to information and places the National Department of Health in breach of its duty to procure goods through a process that is fair, equitable and transparent. We hope that this case will ensure that a clear precedent is set so that in future pandemics, this information is automatically placed in the public domain.
Why is this going to court now?
Since mid-2021, HJI asked the Department of Health to disclose copies of all vaccine contracts and agreements using PAIA. In July 2021, the Director General even requested additional time from HJI to respond, which HJI agreed to.
The Director General said:
‘[The Department of Health notified] the vaccine manufacturers and distributors of HJI’s request to disclose the Vaccine Acquisition Agreements’. ‘[We] invited the vaccine manufacturers and distributors to make written or oral representations as to whether the request for access should be granted or refused (in whole or in part)’.
The HJI extended the deadline to accommodate the Director General, and after receiving no further information, the HJI lodged an internal appeal under PAIA. This was also refused, leaving the HJI with no choice but to seek legal recourse from the courts.
Why is information about Covid-19 vaccine contracts important?
- Covid-19 vaccines mitigates the consequences of Covid-19, by preventing death and controlling the spread of the virus. Vaccines are essential in the global response to Covid-19 and by February 2022 more than 10 billion vaccine doses had been administered worldwide.
- To foster trust in vaccine programmes and to encourage public participation in these, it is vital that government can show that it can reliably purchase the necessary vaccines and roll these out effectively.
- When key components of vaccines contracts are withheld from public scrutiny, it makes the public suspicious and contributes towards vaccine hesitancy and distrust in government.
- Public procurement of public goods requires contractual transparency. HJI has argued that it is in the public interest to know what our government agreed to, when and with whom, at what price, and of course, why.
- Disclosure is even more important following serious allegations that corruption has diverted millions of rands away from Covid-19 relief measures.
Secrecy and the lack of transparency on decision-making during the Covid-19 crisis undermines the robust management of the pandemic.
On whose behalf is the HJI acting?
The HJI has brought this case in its own interest, as an organisation directly involved in the health sector, and in promoting equitable access to medicines and other medical technologies.
The HJI has also brought this case on behalf of the public, and in the public interest because:
- Information about vaccine procurement will empower people to know how the decisions that affect them are made and how public funds are being used in a pandemic.
- There is a heightened need for transparency and accountability during a national disaster, where a number of the usual checks and balances are limited. Life-saving vaccines have been procured, at great public cost and on an urgent basis – this deserves additional scrutiny.
- The public must be given access to information that is required to ensure accountability and to monitor compliance.
What is the HJI arguing in its court papers?
The HJI has argued in its legal papers that the public has a right to know what the terms and conditions of each contract are. In addition, disclosure is necessary as media and other reports have also shown that:
- South Africa may be paying comparatively inflated rates for Covid-19 vaccines;
- The South African government had to grant a broad indemnification against all claims of liability to benefit vaccine manufacturers;
- South Africa was prevented from imposing export restrictions for vaccines filled and finished here by certain vaccine companies.
What is the HJI asking the court to decide on?
The HJI is seeking the disclosure of copies of all Covid-19 vaccine procurement contracts, agreements, and negotiation meeting outcomes / minutes. The HJI believes that at the very least, contracts must have at least been entered into with Johnson & Johnson and Pfizer as these are the vaccines South Africa is administering in the national vaccine roll out programme.
Ultimately, the HJI is asking our courts to direct the Minister of Health to publicly disclose and supply:
- Copies of all Covid-19 vaccine procurement contracts, and memoranda of understanding, and agreements.
- Copies of all Covid-19 vaccine negotiation meeting outcomes and/or minutes, and correspondence.
Why is transparency important?
There is a heightened need for transparency and accountability during a national disaster, where several of the usual checks and balances are limited.
Media reports indicate that the South African government may have been forced to overpay for vaccines, or to accept extremely onerous procurement terms.
The contracts will hopefully tell whether in this pandemic:
- we are paying more for the same vaccine than other countries, and how much we paid
- we are allowed to donate or sell on the vaccines to other countries
- we are prevented from having export restrictions on vaccines filled or manufactured here
- we are issuing full indemnity against all forms of liability to pharmaceutical companies
- we have recourse against late or no delivery of supplies
Why has the HJI not also served legal papers on the pharmaceutical companies, vaccine manufacturers and licensees and any other contracting party involved?
In December 2021, HJI’s pro bono legal representatives, requested the National Department of Health and relevant vaccine manufacturers to confirm all contracting party details, to also cite them as respondents in the litigation.
- We received two responses only (National Department of Health and Pfizer) both indicating that the information was ‘confidential’. They therefore refused to provide that information.
The contracting parties details are therefore unknown to the public. HJI has therefore argued and submitted that the duty to join them to these proceedings falls on the Department of Health.
Why are COVAX, the African Vaccine Acquisition Trust (AVAT) and the Solidarity Fund also relevant?
The COVAX Facility via GAVI negotiates with vaccine manufacturers to potentially secure access to vaccines when they become available, especially for less resourced countries. South Africa is participating in the COVAX initiative and in December 2020, the Solidarity Fund paid R283 million as a down payment to COVAX for South Africa.
- An agreement between the National Department of Health and COVAX (via GAVI) must exist, but it is not in the public domain.
- So far, we know that only about 1.3 million vaccines (Pfizer) were supplied to South Africa from COVAX.
- We do not know what terms govern the:
• remainder of deliveries (if any),
• the price per dose,
• the rules for ‘vaccine swopping’,
• consequences for late or no delivery;
• suspension of the contract;
• indemnification and liability undertakings,
• the number of doses to be received,
• the delivery schedule, re-sale conditions, donation conditions and breach provisions.
Similar to COVAX, a regional mechanism called the African Vaccine Acquisition Task Team (AVATT) was established to help African countries procure vaccines through the African Vaccine Acquisition Trust (AVAT) in partnership with UNICEF.
It is not clear whether South Africa has opted out of this mechanism and in our court papers we ask the Minister of Health to provide relevant details.
Why must the HJI litigate to get access to these contracts?
The HJI believes that litigation should always be a last resort. And we hope that the South African government through the National Department of Health will publish all relevant vaccine contracts immediately – as it is a matter of grave public importance.
Can I access the HJI’s court papers?
Yes. Our court papers and other material are available for download at healthjusticeinitiative.org.za/pandemic-transparency/
In this case, HJI is represented by pro bono lawyers: Power Singh Inc.
Acting for HJI as Counsel are: Adv Wim Trengove; Adv Isabel Goodman; and Adv Sagwadi Mabunda.
More about the Health Justice Initiative (HJI)
The HJI is a not-for-profit organisation and a dedicated public health and law initiative. Our mandate is to address inequities in access to healthcare through research, advocacy, and legal action.
We work to ensure a more inclusive and equitable public health system that includes access to lifesaving diagnostics, treatment, and vaccines.
Advocating for accountability, transparency and openness are cornerstones of our work.