DA asks High Court to instruct national government to provide a detailed vaccine plan

On Monday last week the DA’s lawyers wrote to the office of the President, giving him seven days to respond with a detailed report on all government’s negotiations with vaccine suppliers as well as government’s full vaccine rollout plan, failing which we would take legal action to obtain this information. Those seven days passed on Monday evening with no response from President Ramaphosa, which leaves us no choice but to approach the courts.

Today our lawyers made an urgent application to the Western Cape High Court to obtain a declarator that government’s conduct in procuring vaccines as well as its preparation for the rollout of these vaccines are in violation of several constitutional principles. We asked the court to instruct government to develop a comprehensive and coordinated vaccination rollout plan, and to deliver this plan no later than one month of the order.

The failure to provide Covid-19 vaccines timeously when these vaccines are available is a violation of people’s rights, in terms of Section 27(1) of the Constitution, to have access to healthcare services, as well as a violation of government’s obligation in terms of Section 27(2) to take reasonable measures to achieve the progressive realisation of the right to access healthcare.

Furthermore it is a violation of the right to life, as enshrined in Section 11 of the Bill of Rights. There is also no rationality in failing to secure sufficient vaccines despite knowing early on how important they’d be and having had access to them. This falls short of the fundamental constitutional prescript of the Rule of Law, which requires that decision-making be rational.

The relief we are seeking is similar to the relief that the TAC was granted two decades ago when it took government to court to compel it to make public its antiretroviral rollout programme. Without such a transparent plan that includes clear timelines and division of responsibilities it will be impossible for not only the DA as official opposition, but also the media and civil society, to hold government to account. It is critical for the success of the vaccination plan that we know exactly where we are procuring our vaccines from, how we will be distributing and administering these, and who will benefit from the government contracts.

More specifically, the plan must set out:

  1. National government’s selection criteria for choosing vaccines.
  2. The number of people national government intends to vaccinate, along with the full details and dates on which various priority population groups will be vaccinated.
  3. How national government intends to notify people that their vaccinations are due and how they will keep record of vaccines administered.
  4. The full list of vaccines, including numbers, dates and price, for which national government has concluded final, unconditional supply agreements – both direct contracts and other arrangements with multilateral organisations.
  5. The full list of vaccines for which national government must still secure final and unconditional supply agreements, including reasonably anticipated doses, delivery dates and prices.
  6. How each batch of vaccines will be divided among provinces.
  7. The funds national government has made available for the purchase of vaccines.
  8. The funds national government has made available for the vaccine rollout programme.
  9. The approvals that must be issued by the South African Health Products Regulatory Authority (SAHPRA) for these vaccines and the reasonably anticipated dates of these approvals.
  10. The requirements as well as the arrangements for storage and transport.
  11. The role of provincial governments and public hospitals in the vaccine plan.
  12. The role of the private sector in the vaccine plan.
  13. Details of the personnel required to administer the vaccines, as well as their training requirements.
  14. The locations where vaccines will be administered along with the necessary health protocols.
  15. The medical equipment required at the above locations, as well as details of how much has already been procured, at what price, and what still needs to be purchased.
  16. The policies that national government has formulated to regulate the acquisition and administration of vaccines, as well as the policies that still need to be formulated.

Furthermore, we will ask that the court instruct national government to update the vaccine plan as required and notify the court at least once every three months of any such updates. It must also deliver a status report every three months.

Ideally it should not have to come to this court action, as a country united in its efforts to defeat the virus and rebuild the economy is in a stronger position than one divided. But in order to stand united everyone in the country needs to know what is going on, particularly on an issue as important and urgent as the acquisition and administering of life-saving Covid-19 vaccines. Government needs to be honest in reporting its progress, it needs to be transparent in all its dealings and it needs to demonstrate that the safety of its citizens is paramount.

To date government has done none of these things. It dithered as other countries leapt into action to secure vaccines as far back as May last year. It did nothing beyond arranging vaccines for a mere 10% of South Africans through the WHO’s Covax initiative, at the highest possible price and only due for delivery as other countries are already aiming to finish their vaccination programmes. And when its inaction was exposed, it quickly sprang into belated action, trying all the while to spin its way out of the scandal through lies and deflection, the latest of which saw President Ramaphosa blame other countries for buying up all available vaccines. The truth is they bought those vaccines and we didn’t, simply because South Africa was never in the queue.

The President’s claim that his government had been negotiating with suppliers for the past six months has also been exposed as a lie, not only by the vaccine manufacturers themselves, but also by the date on which the Department of Health applied to Treasury for deviation from the normal procurement processes for the acquisition of the vaccine. According to a letter from Treasury, this application was only made on 7 January this year. This reveals the date on which they finally woke up to the crisis and started scrambling for whatever vaccine leftovers they could find.

The blame for our botched vaccine programme does not lie at the feet of the pharmaceutical companies that produce them. It does not lie at the feet of the countries that bought their vaccines long before we’d even started thinking about it. It lies squarely with the ANC government, and President Ramaphosa in particular. His government is not the victim of some global conspiracy. The people of South Africa are the victims of his government.

Ultimately there must be consequences, but first there must be a truthful and transparent plan.