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The National Health Insurance (NHI), for which membership will be compulsory, is a funding scheme that aims to address healthcare inequity in South Africa. The scheme will do this by creating a fund that the government will use to buy healthcare services at set fees from accredited public and private health providers. The NHI Bill was passed in the National Assembly in June 2023. It has to go to the National Council of Provinces for approval.

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Hundreds of protestors descend on DTI’s Pretoria offices demanding access to affordable medicines

Think paying your medical aid premiums every month ensures you access to the drugs you need when you get sick? Think again.

More than 1 000 activists marched on the Pretoria head office of the department of trade and industry Tuesday to demand patent reforms to ensure access to affordable medicines. The march comes as a new report shows that even medical aids cannot keep pace with the high price of patented drugs.

Bernice Lass has a neurological disorder, transverse myelitis. It causes extreme pain in her back and legs, affecting her ability to move and forcing her to quit her job as a nurse. Her doctor prescribed Lyrica.

Despite a motivational letter from Lass’ doctor, her medical aid has refused to cover the cost of Lyrica, which can cost up to about R8 000 a year. Pfizer pharmaceutical company holds the patent for Lyrica in South Africa. It prohibits the importation of cheaper generic versions of the drug, which is also used to treat fibromyalgia and epilepsy, the civil society Fix the Patent Laws campaign reports.

In 2013, Pfizer made R74 million from the sale of the drug in South Africa’s private sector. The drug is among the top 50 cost drivers of medicine expenditure in the country, according to campaign.

Lass now relies on her son and brother for the medication.

“I feel embarrassed asking them though – as before I was always independent and had my own money. I personally know others with my condition who really need this medicine to deal with their pain but just can’t afford it,” she says in a new report released by the campaign Tuesday. Lyrica is one of eight drugs in the report that are not procured nationally for the public sector or fully covered by medical aids. These medicines include drugs used to treat aggressive forms of cancer, schizophrenia and hepatitis B.

Latest dti move a “step back”

Tuesday’s protest comes almost seven years after the department first announced plans to reform patent policies.

In July, it released what it called a consultative framework on intellectual property.

But, in a document to delievered to the department Tuesday, activists call the framework a step back in the process: “Not only does it take the form of a precursor to an intellectual property policy, but it fails to specify an appropriate endpoint, and makes no attempt to express any views on the identified issues.”

Activists want the department to introduce stricter patent criteria in line with international standards to ensure that the market for older drugs such as Lyrica is opened up to generic competition. They are also calling for a transparent patent process that would, as in India, allow the public to oppose patents.

“We need this policy changed now,” says Claire Waterhouse, advocacy officer for international humanitarian organisation Doctors Without Borders (MSF)’s Access Campaign.

“Affordable medicines need to be getting to South Africans and people living in South Africa as quickly as possible. Our report shows that this problem is not limited to certain diseases or to specific areas of the country or classes of people — it affects everyone.”

Fight for affordable prices shouldn’t be waged in court, say activists

The activists, from 32 patient groups including the Childhood Cancer Foundation of South Africa, the Hospice Palliative Care Association and DiabetesSA, want to make compulsory licenses easier.

In rare cases, governments can use compulsory licences to manufacture or import generic versions of medicines that are still under patent without the patent holder’s consent — usually for public health reasons. For example, in 2001, the United States government feared anthrax attacks in the wake of September 11. The government used this public health rationale to threaten pharmaceutical company Bayer with a compulsory licence for its anthrax treatment, ciprofloxacin. Bayer drastically lowered its price in response, The Journal of Law, Medicine & Ethics reports.

Umunyana Rugege, the attorney for public interest law organisation Section27, says South African patent law allows these kinds of licences to be issued but requires a high court application to do so.

Compulsory licences must be a matter of administration, not the courts, says Waterhouse.

“What we want is administrative versus judicial procedure, which is what most countries in the world have that use this mechanism. Judicial procedures at the moment are expensive, they take a long time and are open to the appeals process, which means that you just never really get your decision — and that’s not the point of compulsory licensing.”

Waterhouse says the department has told MSF that a final patent policy will be released next year.

In their submission, activists have called on the department to provide public timelines for the patent law review process, including when it will introduce a final policy.

Laura Lopez Gonzalez is a freelance health journalist and editor. She was Bhekisisa's news editor then deputy editor between 2016 and 2020.