For years, the Department of Trade and Industry (DTI) has been drafting an intellectual property (IP) policy that reviews all IP-related legislation in South Africa.

Noting with concern the high price of medicines in South Africa, TAC has closely followed the DTI’s development of the policy, which could recommend that South Africa utilize key legal flexibilities that would promote access to affordable medicines.

At a public meeting on intellectual property and access to medicine co-hosted by TAC and MSF on 23 October 2012 in Johannesburg, Mr MacDonald Netshitenzhe, Chief Director of Policy and Legislation at the DTI, told representatives from TAC, MSF, the pharmaceutical industry, government, media, and civil society that the policy would be submitted to Cabinet on 5 December prior to being opened for public comment.

When Cabinet met on 5 December however, the IP policy was not on the agenda. It appears that the Committee of DGs which needs to prepare submissions before the Cabinet meeting could not meet in time. Mr Netshitenzhe says the policy will now be presented at the next Cabinet meeting in January.

The DTI must ensure that the policy will be submitted to Cabinet at its next sitting in January. Missing another deadline will yet again delay a much-needed discussion on IP and its relation to public health, and block potential opportunities for important legislative reform.

While the department delays, doctors and patients pay the price through lack of access to key life-saving medicines. Further delays would force TAC to consider litigating to force government to meet its obligations in terms of Section 27 of the Constitution. Section 27 requires the state to take all reasonable legislative steps to realise the right to health. In our view, this places an obligation on the state to write pro-public health flexibilities into South African national law, as allowed for under international law.

TAC will monitor the process going forward and engage with the policy when it is available for public comment.