Cough up the Covid contracts: Court orders health department to disclose vaccine procurement contracts

• The Gauteng High Court in Pretoria has ordered the Department of Health to disclose all Covid-19 vaccine procurement contracts. 
• This comes after the department refused a request to disclose the contents of the contracts, citing a breach of confidentiality in doing so.
• Judge Anthony Millar said non-disclosure of the records cast a shroud of secrecy over the entire negotiation, procurement and payment process.

The Gauteng High Court in Pretoria has ruled in favour of the Health Justice Initiative (HJI) in a fight to compel the Department of Health to disclose all Covid-19 vaccine procurement contracts.

According to court papers, on 19 July 2021, the HJI submitted a request to the Department of Health for access to the Covid-19 vaccine contracts, in line with the Promotion of Access to Information Act (PAIA).

The organisation sought access to:

The HJI also requested copies of all Covid-19 vaccine negotiation meeting outcomes or minutes, including the authorised licenced representatives of Jansen Pharmaceuticals/Johnson & Johnson, Aspen Pharmacare, Pfizer, Serum Institute of India/Cipla, Sinovac and any other vaccine manufacturer or licensee. 

The request was acknowledged and the department informed the HJI that it would invite other parties to make representations if they so wished.

On 15 September 2021, the HJI submitted an internal appeal to the department after not receiving a response.

On 11 January 2022, the department replied to the HJI by email saying that, per confidential agreements, it was not at liberty to divulge the requested information.

READ | Fatima Hassan and Thabo Makgoba | It is our right to see the Covid-19 vaccine procurement contracts

The department argued that the procurement contracts were negotiated in good faith and in the country's best interests under the prevailing circumstances.

It also said it had signed agreements containing confidentiality clauses regarding non-disclosure of the procurement terms. 

"The clauses prohibit any disclosure to the procurements without the consent of their manufacturers, and any disclosure will constitute a breach of the contract ... [T]here is no basis to suggest that disclosure of the agreements would reveal evidence of a substantial contravention of or failure to comply with the law," the department said.

It argued that refusal to grant access to the records was justifiable under the circumstances.

The department also said the confidentiality clauses were meant to protect the interests of the parties to the agreements and that the information contained in the agreements was given in confidence. 

But the HJI argued that the non-confidential portions of the documents ought to be accessible.

READ | Covid-19 vaccine procurement: Health Justice Initiative applies to join court battle

"This is particularly so since at least some of the information contained in the documentation sought, at the very least the import of what may have been agreed to, was publicly disclosed by the minister of finance to Parliament's Portfolio Committee on Health and the citizenry. 

"In the context of public procurement, it seems somewhat obvious that [the existence of] a confidentiality clause does not mean the information and the documentation can be withheld on that basis alone," the HJI argued in its court papers.

But the department said disclosing the information would cause harm to the commercial interests of the country. 

However, the HJI said disclosing the records was in the public interest and that the records were necessary to understand the basis and terms upon which the department negotiated and procured Covid-19 vaccines. 

In his judgment, Judge Anthony Millar said non-disclosure of any of the records sought meant that a shroud of secrecy was placed over the entire negotiation, procurement and payment process, the very conduct which the Constitution and legislation such as the PAIA seek to address. 

Millar said: 

He said it was his view that disclosing the records was in the public interest. 

"There is no merit in the arguments on the part of the department that the information and records sought should not be disclosed.

"The refusal by the department to grant access by the application to the records is set aside.

"The department's information officer is directed to supply the HJI with copies of the documents within 10 days."

Millar also ordered the department to pay the costs of the HJI's application.