SA must follow BRICS lead on patents

Other BRICS countries have fulfilled the commitments they made in July 2011 to enact public health safeguards spelled out in World Trade Organisation (WTO) agreements. Decisive moves by Brazil, India and China have saved hundreds of millions of taxpayer dollars and dramatically increased access to medicine by bringing down prices. South Africa lags far behind because it still grants and protects patent monopolies of pharmaceutical companies, at the expense of South Africans’€™ health.  

South Africa’€™s patent system currently allows for patent protection of pharmaceuticals additional to WTO 20-year requirements, and does not take advantage of flexibilities for protecting health, like overriding patents with a compulsory license (CL) when drugs are priced out of reach for those in need.

  • In India, a CL on cancer drug sorafenib was upheld earlier this month, making generic sorafenib available in India for R8.55 per 200 mg tablet ‘€” 97% less than the brand name product.    In South Africa, where no generic versions of this medicine are available, patients must pay R203.50 for the same tablet.
  • When Brazil issued a CL on the widely-used antiretroviral efavirenz in 2007, the switch to a generic saved the Brazilian government an estimated US$103,600,000 in treating HIV/AIDS from 2007-2011.[1]

South Africa has never issued a CL ‘€“ despite being a major purchaser of antiretroviral drugs and TB treatment. This is partly due to outdated laws. In October 2012, MacDonald Netshitenzhe, Chief Director of Policy and Legislation at the Department of Trade and Industry (DTI) said South Africa had ‘€˜unworkable’€™ law for issuing CLs. This intransigence contrasts starkly to China, which adopted legislation in May 2012 to allow for compulsory licensing for the protection of public welfare and public interest.

In addition to CLs, Brazil and India have also instituted patent examination systems to prevent pharmaceutical companies from obtaining patents on drugs, where there is no real innovation.    South Africa’€™s patent registration system, does not scrutinise patent applications, and often grants multiple patents on the same pharmaceutical ingredients. As a result, South Africa grants up to 50 times as many pharmaceutical patents in a year as Brazil or India. Therefore, some life-saving drugs are priced out of reach of the Department of Health, medical aid schemes, and individuals who need to buy them.

By protecting poor-quality patent monopolies of pharmaceutical companies, South Africa cannot obtain more affordable generic medications available from BRICS countries like India, nor develop substantial local pharmaceutical production capacity.

The Treatment Action Campaign (TAC) and Médecins Sans Frontières/Doctors Without Borders (MSF) are jointly campaigning for the amendment of South Africa’€™s patent laws, to put the country on par with its BRICS peers in protecting public health.(

Despite South African government assurances that a new law is in the works, the deadline for the draft law to be made public and opened for comment has been repeatedly missed.

TAC and MSF urge the DTI to ensure the timely release of this policy, and insist that the policy uphold South Africa’€™s commitment to join the ranks of BRICS countries protecting public health through their laws and actions.


– Sibongile Nkosi ‘€“ TAC Communications Coordinator | mobile: +27 83 62 17 875 |

– Julia Hill ‘€“ MSF SA Access Advocacy Officer | mobile: +27 72 76 60 335 |


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