Tension between South Africa’s patents act and the right of access to essential medicines

Nzimande, Makhosazana
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This paper considers whether the monopoly right of the patent holder as granted by the Patents Act of South Africa denies marginalised groups access to essential medicines and whether that monopoly right can be restricted. The comparative approach taken by this paper will start by looking at the nature of competing rights which are patent rights as well as the right of access to essential medicines provided for in section 27 of the Constitution of the Republic of South Africa (hereon the Constitution).1 It will also explain the tension that exists between these two competing rights. To make these essential medicines affordable to the public, this paper will demonstrate that a balance can be struck between the right of the patent holder and the right of access to essential medicines. It will do so by drawing from various legislative frameworks particularly the Constitution, the Competition Act2 as well as international frameworks with reference to the TRIPS Agreement and the DOHA Declaration.3 It will propose new ways in which a monopoly right can be restricted to ensure that marginalised groups have access to affordable medicines in contemporary South Africa.
A research report submitted in partial fulfilment of the requirements for the degree of Master of Laws by Coursework and Research Report to the Faculty of Commerce, Law and Management, School of Law, at the University of the Witwatersrand, Johannesburg, 2022