Human rights, harmonious interpretation and the hegemonic international trade regime: The case of the COVID-19 TRIPS waiver proposals

by | Feb 9, 2023 | SAIPLJ, SAIPLJ 2022

Human rights, harmonious interpretation and the hegemonic international trade regime: The case of the COVID-19 TRIPS waiver proposals

Author Sanya Samtani

ISSN: 2521-2591
Affiliations: Postdoctoral research fellow at the South African Research Chair Initiative in International and Constitutional Law, Department of Public Law, University of Pretoria
Source: South African Intellectual Property Law Journal, 2022, p. 66 – 104
https://doi.org/10.47348/SAIPL/v10/a4

Abstract

Although the COVID-19 pandemic has receded from daily news coverage, it still continues. Despite states committing to a human rights approach to ending the pandemic, and bearing human rights obligations to that effect, they have under-realised these obligations during this crisis. This article identifies the institutional design of the international trade regime as one of the key reasons for this failure. The article analyses the COVID-19 TRIPS waiver proposals and the Geneva package outcome emerging from the World Trade Organisation (WTO). It focuses on one aspect of both waiver proposals that is absent from the Geneva package outcome: states’ commitment to refrain from approaching the WTO Dispute Settlement System (DSS). The article argues that state parties to international human rights treaties and the WTO-covered agreements bear concurrent trade, intellectual property and human rights obligations. While international law requires states to harmoniously interpret these obligations to give effect to all of them, states have failed to do so. Instead, states’ trade and intellectual property obligations have become hegemonic, leading to the prioritisation of the market at the cost of human lives during one of the biggest humanitarian crises in recent memory, and necessitating the waiver proposals. The article concludes that, in the short term, waivers of intellectual property obligations as well as commitments not to bring actions at the WTO DSS are crucial to ensure that states can fulfil their human rights obligations during pandemics. In the longer term, this state of affairs highlights the need for rethinking existing international legal structures and the values that they promote.

Improving access to medicines in the SADC region through patent opposition: Law reform inspirations from an unlikely jurisdiction

by | Feb 9, 2023 | SAIPLJ, SAIPLJ 2022

Improving access to medicines in the SADC region through patent opposition: Law reform inspirations from an unlikely jurisdiction

Author Lonias Ndlovu

ISSN: 2521-2591
Affiliations: Associate Professor and Interim Director, School of Law, University of Venda, Thohoyandou, South Africa
Source: South African Intellectual Property Law Journal, 2022, p. 105 – 130
https://doi.org/10.47348/SAIPL/v10/a5

Abstract

This article surveys the patent opposition legal landscape in the SADC region and justifies the importance of patent opposition for access to essential medicines by SADC citizens. The article uses Thailand as a comparative jurisdiction and, after taking a closer look at the patent opposition provisions of the laws of Botswana, Malawi, Zambia and Zimbabwe, the article advances the view that the SADC patent law reform agenda can learn a lot from its Thai counterpart on pharmaceutical patent opposition. Most SADC members with patent opposition provisions in their laws provide for pre-grant rather than post-grant opposition. Generally, pre-grant and post-grant patent opposition procedures ensure that only deserving patents may be successfully applied for and granted. The article concludes that the Thai pre-grant opposition procedures are an example of progressive law, which the SADC region should consider emulating to improve access to affordable essential medicines. The Thai experience may provide helpful and practical pointers for some SADC members when their patent opposition procedures are eventually tested before the courts and intellectual property tribunals.

Case Note: Blind SA v Minister of Trade, Industry and Competition and Others [2002] ZACC 33

by | Feb 9, 2023 | SAIPLJ, SAIPLJ 2022

Case Note: Blind SA v Minister of Trade, Industry and Competition and Others [2002] ZACC 33

Author Bongiwe Zungu

ISSN: 2521-2591
Affiliations: Lecturer in Commercial Law, University of Cape Town
Source: South African Intellectual Property Law Journal, 2022, p. 131 – 143
https://doi.org/10.47348/SAIPL/v10/a6

Abstract

Materials under copyright, such as books and other literary works, are essential for human development and well-being. Accessing the information contained in these materials is relatively straightforward for sighted individuals, but for persons with print and visual disabilities, access is a challenge and often costly. The barrier to accessing information threatens various constitutional rights of persons with print and visual disabilities. The threatened rights include the right of access to information, the right to education, the right to equality and the right to human dignity. South Africa has been undergoing a process of copyright reform for over 15 years to remedy the violation of these rights. However, pending the finalisation of this process, the threat to these rights persists, and the matter thus warranted the intervention of the apex court in Blind SA v Minister of Trade, Industry and Competition and Others [2002] ZACC 33. This note first considers the regulation of copyright in South Africa to provide context. The note then analyses the Constitutional Court’s decision and considers the decision of the court a quo to provide some background on the matter. The note ends with an analysis of the implications of the judgment for persons with print and visual disabilities and a discussion of issues that the court did not consider.

Gender-based violence and the judiciary: Reflections on the role of the courts in safeguarding the dignity, safety and freedom of women

by | Jan 29, 2023 | JSAC-IAWJ, JSAC-IAWJ 2023

Gender-based violence and the judiciary: Reflections on the role of the courts in safeguarding the dignity, safety and freedom of women

Author: Leona Theron

ISSN: 2958-4973
Affiliations: Justice of the Constitutional Court of the Republic of South Africa
Source: Journal of the South African Chapter of the International Association of the Women Judges, Issue 1, 2022, p. 1-18
https://doi.org/10.47348/JSAC-IAWJ/2023/a1

Abstract

The number of reported cases of sexual offences is rapidly increasing in South Africa. Parliament has responded to this phenomenon by making various important legislative reforms. Our Constitution recognises, however, that beyond legislative reform, our courts must ensure the transformation of society to ensure that South Africa truly belongs to all who live in it. This means that the courts must confront patriarchal norms entrenched in South Africa’s criminal justice system and in the law itself. The courts have responded to this challenge with commendable vigour. The most recent development is the Constitutional Court’s decision in Tshabalala v S. This case demonstrates the role that our courts can and must play during the ‘pandemic’ of sexual and gender-based violence.

Contracts in restraint of trade: Pacta sunt servanda and constitutional values: From Magna Alloys to Beadica

by | Jan 29, 2023 | JSAC-IAWJ, JSAC-IAWJ 2023

Contracts in restraint of trade: Pacta sunt servanda and constitutional values: From Magna Alloys to Beadica

Author: S E Weiner

ISSN: 2958-4973
Affiliations: BA LLB; Judge of the Supreme Court of Appeal
Source: Journal of the South African Chapter of the International Association of the Women Judges, Issue 1, 2022, p. 19-50
https://doi.org/10.47348/JSAC-IAWJ/2023/a2

Abstract

Since the advent of the constitutional era, the law of contract and the maxim pacta sunt servanda have been the subject of much jurisprudential discourse. Restraint of trade agreements have, on occasion, been regarded by our courts as distinct from other contracts, with some judges believing that such contracts should be treated with more circumspection and outside the confines of the principles applicable in our law of contract. In Magna Alloys the Appellate Division laid down the general principle that, prima facie, contracts in restraint of trade are valid and enforceable. The employee bears the onus of showing that the restraint is unreasonable and contrary to public policy. Some jurists believe, however, that the application of constitutional principles requires a revision of our jurisprudence in relation to contracts in restraint of trade. This article analyses some of the judgments dealing with the concept of pacta sunt servanda and the application of constitutional values in the decision-making process, and shows that there is no need to cavil against the existing jurisprudence and to treat contracts in restraint of trade as sui generis or more stringently. Although most of the authorities quoted in this article deal with our law of contract in general, such principles have been held by the Supreme Court of Appeal and the Constitutional Court to apply equally to contracts in restraint of trade.