By Zelda Venter 
Jul 2, 2021
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Pretoria – Solidarity and AfriForum have failed in the legal bid to obtain more information on whether the sale of the Johnson & Johnson (J&J) vaccine is restricted only to the national government.
The applicants turned to the Gauteng High Court Pretoria yesterday to obtain an urgent order instructing the South African Health Products Authority to provide more information regarding the registration of the J&J vaccine, and whether only the government could purchase it.
The two organisations questioned the legality of the “condition” of registration of the vaccine as that neither the private sector nor the provinces may purchase it.
They requested more information regarding the conditions for the registration of this vaccine by the regulator.
But both the Health Ministry and regulator denied that the purchasing of vaccines, and the J&J vaccine in particular, was reserved for the national government alone.
Chief executive at the regulator, Dr Boitumelo Semete-Makokotlela, said while the government was at this stage procuring the vaccines, there was nothing prohibiting provincial governments or private entities from doing so.
She said there was no basis for the applicants’ contentions that the registration of the J&J vaccine was subject to any condition prohibiting its sale to the provinces or to the private sector.
“I confirm that there is in fact no condition attached to the registration of the vaccine that restricts its sale to the national government or private entities …
“We cannot be ordered to provide information regarding a condition that does not exist. The applicants are on a fishing expedition,” she said.
The applicants, however, maintained that the public is kept in the dark regarding the availability of this vaccine.
They told the court that “setting conditions that enable the state to centralise vaccines is illegal”.
Judge Selby Baqwa was told that the regulator’s function was to investigate the efficacy of vaccines and medicines; not to give the state exclusive right to purchases.
“We can only conclude that the state is interfering improperly in order to sharpen its grip on the health sector,” said Anton van der Bijl, head of legal affairs at Solidarity.
“However, it has already proven its incompetence during the pandemic with its inability to administer the vaccine roll-out programme effectively.
“Further enabling the government to control vaccines will have disastrous consequences.”
According to him, this is a life-and-death situation, especially in light of the third wave of the pandemic and against the government’s slow vaccine roll-out programme.
Judge Baqwa, however, was not convinced that the matter was urgent.
In striking the application from the roll after hearing the parties’ argument on urgency, the judge said he could not make an order on public
perception that the sale of the vaccine is restricted to the national government.
He said both the regulator and government denied that the sale was restricted, while the applicants relied for their information from what was said in the media.
“Must I accept what is said in the media or what the first respondent says?” the judge asked.
Regarding the applicants’ complaints about the slow roll-out of the vaccines, he said this must be taken up with government, and not with the regulator.
Judge Baqwa said he could not see that if the applicants enrolled their application on the normal court roll and not as an urgent application, it would result in a life or death situation, as claimed by the applicants.