The Health Justice Initiative (HJI) has taken legal action to compel the National Department of Health to supply it with copies of all records related to vaccine procurement deals at the height of the Covid-19 pandemic.
The matter is expected to be heard in the Gauteng High Court in Pretoria on Tuesday.
The HJI said it submitted a Promotion of Access to Information Act (PAIA) application to the health department on July 19, 2021, for access to among others, the records of vaccine procurement contracts, memoranda of understanding, and agreements concluded with vaccine manufacturers, licensees or suppliers as well as the minutes, correspondence and negotiation meeting outcomes with those parties.
On July 29, 2021, the director-general responded to HJI’s request saying the department would notify the vaccine manufacturers and distributors of the request, and invite them to make presentations in response.
However, according to court papers, he never got back to them.
The HJI said it then appealed as per the PAIA process, to no avail.
The HJI argues that the disclosure is in the public interest and non-disclosure violated the Constitution.
“Additionally, previous media reports indicate that the government may have been forced to overpay for vaccines, or to accept extremely onerous procurement terms, including broad indemnification clauses, export restrictions and worrisome non-refundability clauses.
“The records sought are necessary to understand the basis and terms upon which the department negotiated and procured Covid-19 vaccines.
“Those terms may continue to bind South Africa for many years to come.
“In the absence of disclosure, the HJI (and the public at large) cannot ascertain the terms on which vaccine procurement has been negotiated and concluded, and cannot challenge the validity and enforceability of the terms struck.
“Non-disclosure thus serves, in effect, to oust the court’s oversight over the terms of the vaccine procurement agreements, and to violate the HJI’s right of access to court,” the HJI argues.
The health department has justified its refusal, arguing that PAIA placed limitations on the right of access to information.
“It does this by exempting certain information from disclosure.
“PAIA recognises, in its preamble, that there are ‘reasonable and justifiable’ limitations on the right of access to information.
“The respondents’ resistance to the granting of access to the records is based on two grounds, first that the records contained information supplied in confidence by the third parties, the disclosure of which could reasonably be expected – (i) to put that third party at a disadvantage in contractual or other negotiations; or (ii) to prejudice that third party in commercial competition, as contemplated by Section 36(1)(c) of PAIA and that the agreements contained confidentiality clause for which a disclosure would constitute an action for breach of a duty of confidence owed to the third party as contemplated by Section 37(1) (a) of PAIA.
“The basis of the inclusion of confidentiality clauses in the agreement or contracts is to protect the interests of the parties to the agreement,” their court papers read.
Cape Times