School of Law (ETDs)

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Anti-competitive behaviour as a ground for compulsory licensing of pharmaceutical patents in South Africa
(University of the Witwatersrand, Johannesburg, 2023-09-14) Omar, Fathima; Andanda, Pamela
While the South African Patents Act provides for compulsory licensing in instances of an abuse of patent rights, millions of South Africans remain unable to access essential medicines because of inter alia the high prices charged by pharmaceutical patent holders. This research explores the idea of utilising Article 31(k) of the TRIPS agreement – which allows for compulsory licences to be issued to remedy anti-competitive behaviour – to ensure access to patented essential medicines. The central argument in the report is that compulsory licenses on Article 31(k) grounds should be granted by the competition authorities after having found anti- competitive behaviour on the part of the pharmaceutical patent holder. Moreover, this research provides solutions and recommendations to appropriately deal with the role of the competition authorities in the regulation of patented pharmaceutical
Extended locus standi for representative complaints in terms of the South African protection of personal information act 4 OF 2013
(University of the Witwatersrand, Johannesburg, 2023) Morwenyane, Emmanuel Letlhogonolo; Andanda, Pamela
The Protection of Personal information Act 4 of 2013 does not seem to provide for lodging of representative complaints in order to vindicate data subjects’ rights in terms of section 73 of the Act. This paper critically analyses the approach taken in the Act and argues that the approach may cause inefficiencies when complaints that arise from the same cause of action or from the same incident are lodged on an individual basis with the Information Regulator. The recent mass data breaches in South Africa have created an incentive for the Act to be amended to provide for representative claims to be lodged in the form of class complaints not only to accommodate the data subjects, but other stakeholders such as the responsible parties themselves who may be affected by the infringement of data subjects’ rights in terms of the Act. By shining a light on cases like Nkala, the research shows how principles of locus standi in class actions can be incorporated into our data privacy legislation in order to facilitate the vindication of rights of data subjects, which may be infringed including data subjects who may not even know about the infringement of their privacy rights. The paper argues for a more liberal approach to be adopted when it comes to class complaints. This will not only improve efficiency when the Information Regulator deals with complaints, which arise from the same cause of action, but also facilitate the administration of justice
Pharmaceutical patents and public health: facilitating access to affordable medicines in South Africa through trips flexibilities
(University of the Witwatersrand, Johannesburg, 2024) Bouwer, Ryan; Andanda, Pamela
The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) aims to strike a balance between the protection of creators and providing access to creative works to users of same. South Africa, as a member of the World Trade Organisation (WTO), has the flexibility to define its policy space in an internationally recognised and compliant manner to achieve an equilibrium between upholding public interest objectives and the private interests of patent holders in the field of health. South Africa has taken steps over the years to revise its medicine and intellectual property (IP) policies to address the issue of medicine access; however, implementation of reform is hampered by resource and capacity constraints, as well as economic and political pressures. As a result, the exorbitant pricing of pharmaceutical patented products continues to have an impact on the availability of essential medicines in South Africa. This report examines the functioning of the patents system in South Africa as it relates to the granting of pharmaceutical patents. The report discusses the link between intellectual property rights (IPRs) and public health and how the patent system can create barriers to access to affordable medicines. This report contends that the current patent climate exists due to shortcomings in South Africa’s Patent Act of 57 of 1978 (Patents Act) and its under-utilisation of TRIPS flexibilities. Pharmaceutical companies have exploited the current patent regime through evergreening and other abusive practises, resulting in the postponement of off-patent drugs and stifled competition, ultimately at the expense of public health. This report seeks to determine the extent to which South Africa has implemented TRIPS flexibilities in promoting access to affordable medicines in the realm of pharmaceutical patents, as well as whether South Africa can strike a balance between protecting pharmaceutical innovation and public health. It concludes by looking at how competition policy can be used to correct the imbalance and suggests that a focused and convergent approach to capacity building and transnational collaboration be employed.
Social media posts and memes: a South African perspective on the intersection of copyright law, internet use and privacy
(University of the Witwatersrand, Johannesburg, 2023-07) Mpipa, Simamkele Kuhle; Andanda, Pamela
This research report is a reflection on the intersection of social media, privacy, dignity, and copyright law. With a click of a button, social media platforms, and the Internet at large, reveal personal information belonging to millions of individuals around the world, the digital environment has changed life as we once knew it. Legal scholars and legal practitioners must now face the novel legal issues which have been brought about the digital age. Due to the law’s reactive nature, privacy and data protection have been put at the forefront of new legislation. The subject of this paper is not data protection, rather this paper analyses the common law protection of privacy and copyright law in South Africa within the context of social media. In light of the changes brought about by the digital age, the position that I put forward in this paper is: to effectively address the challenges created by the digital environment, we must strive to adopt innovative and creative ways to use existing law rather than create new law. The paper discusses how internet memes can be harmful to the privacy and dignity of the individuals whose works they are derived from. I also examine the common law protection of privacy within this context and whether it is appropriate for addressing related issues in the digital age. Lastly, I put forward remedies in copyright law, particularly the protection of moral rights of an author, as a possible recourse that can be used by authors whose works have been made into internet memes