This article was taken from the UK Guardian, Wednesday 14th April 2001
Guardian website: 
Aids charity has makers on the run
Climax near in South African
case for cheaper medicines
Chris McGreal in Johannesburg Wednesday
April 18, 2001
The world's big drug companies return to
court in Pretoria today knowing that they have lost the first
round of their battle to defend their
profits at the expense of lives in the developing world.
Last night some of them were scrambling
to negotiate a settlement after being cowed not by the
South African government but by a small
militant aids rights group, the Treatment Action Campaign
(TAC).
The companies went to court to challenge
a South African law allowing the government to produce or
import generic versions of patented drugs
in certain circumstances. But the companies' case has been
coming apart ever since they arrived in
court.
A series of rulings by the judge questioned
their right even to pursue the action. There has also been a
barrage of international criticism about
the moral and legal basis of the case.
They may come to regret bringing the case,
not only because of the damage to their industry's reputation
but also because it may result in the
severe weakening of the patent rights they are trying to
protect.
The court adjourned the trial six weeks
ago after letting TAC make a submission which threatened to
force the companies to reveal long-held
secrets about their business practices.
Initially, neither of the other parties
wanted TAC in court with them. But the government came to realise
that it had a valuable if unconventional
ally.
TAC is led by Zackie Achmat, a charismatic
homosexual of 38 who attends court wearing a
T-shirt with the slogan "I am HIV Positive".
He does not know when he contracted the
virus. Perhaps it was during one of his stints in prison
agitating against apartheid; by his own
description, he had a vigorous sex life there. Or he may have
picked it up as a male prostitute.
Either way, he refuses to take anti-retroviral
drugs while they are not readily available to the rest of
South Africa's people.
"Those of us who are privileged enough
to have access to health care should use it to ensure that
everyone gets treatment," he has said.
TAC was born a little more than two years
ago in protest at the government's Aids policies. A number
of hospitals, including the largest biggest
in the southern hemisphere, Chris Hani Baragwanath
hospital in Soweto, were giving anti-Aids
drugs to HIV-positive pregnant women to reduce the number
of children born with the virus.
For political reasons, mainly because President
Thabo Mbeki's government refused to acknowledge the link
between HIV and Aids, the programme was
dressed up as research, but the drugs were available to all in
the designated hospitals. Then the health
department put a stop to the programme.
"That led to a lot of anger and was a direct
reason for the formation of TAC," said Mr Achmat, who
was head of the Gay and Lesbian Coalition
at the time.
"But at the same time we realised that
while we always condemned the government, the
non-governmental organisations were spending
millions of rands in Aids prevention, and it was
equally limited.
"So we looked at where all this money was
going, and we realised it was to the drug companies. We
launched a campaign that would bring in
everybody - the churches, the unions - to change the whole
approach."
TAC was a driving force behind the legislation
now being challenged in the high court. It publicised the
drug companies' tactics, and found like
minds in the South African department of health. But the
government was divided.
Some officials opposed the legislation
permitting the import of generic and other cheaper drugs, fearing
that it would harm the confidence of investors,
particularly after the US put South Africa on a
"watch list" of patent pirates.
TAC's greatest victory may come in the
next few days. Before the adjournment, the judge let it make a
comprehensive submission as a friend of
the court. When the drug companies insisted on time to
prepare a response, Judge Bernard Ngoepe
called their bluff. Fine, he said, but they must respond to
TAC's submission point by point; any they
failed to address would be taken as proved.
TAC's submission includes detailed affidavits
challenging the drug companies' claim that medicines
are priced to reflect the costs of research.
TAC argued that the research and development bills for all
five of the main anti-Aids drugs were
met by American universities or the US National Institutes
for Health, not the pharmaceutical producers.
"AZT was discovered 30 years before, at the Michigan Cancer Institute," Mr Achmat said.
"It was a cancer drug and the institute
did all the initial research. It's the same with STC. The cancer
institute met the major costs of discovery
but Glaxo claims it is recovering costs. It's the same with all of
them."
The companies answered this claim with
their own figures. TAC's scientists argue that those numbers
include a lot of spending not directly
attached to the discoveries, such as marketing costs.
The TAC submission also alleges that the
companies have engaged in price fixing and argues that in
South Africa the constitutional right
to health has greater legal weight than the constitutional right to
protection of patents.
The companies have already submitted their
response to the judge. But they do not reveal the details
of research funding, the profitability
of individual drugs and other issues required by the court. Instead, they
revive their previous argument that the
new law is unconstitutional because it gives cabinet ministers
too much power to decide what constitutes
an "unaffordable" drug.
They also say that the government turned
down an offer of cheaper medicines which would have
obviated the need for generic imports.
TAC hopes the judge will focus on the companies'
failure to comply fully with his order and deliver the
Pharmaceutical Manufacturers' Association
another legal blow.