Perspectives of Law and Public Administration (Dec 2021)
RE-CONFIGURING SOUTH AFRICAN PATENT LAWS IN SEARCH OF AN AFROCENTRIC APPROACH FOR EXPANDING ACCESS TO ESSENTIAL PATENTED MEDICINES IN THE COVID-19 ERA
Abstract
In an effort to fight the epidemiological health crisis precipitated by COVID-19, South Africa has declared a state of national disaster under the Disaster Management Act 52 of 2002 enabling the government to lawfully impose lockdowns and take other necessary measures. This article argues that for South Africa to succeed in overcoming the said crisis as well as the other pandemics facing the country, there is a need to re-configure the country’s patent laws based on an Afrocentric approach to expanding access to essential medicines. It contends that South Africa’s current patent laws are based on problematic theories of intellectual property law largely steeped in a Eurocentric regulatory construct which advances neo-colonial economic interests contrary to the country’s desperate need to ensure access to essential medicines. The article argues for acceptance of justificatory indigenous and communalistic theories that enable the enactment of intellectual property rights anchored on the philosophy of Ubuntu as supplementary to some of the extant western individualistic notions currently underpinning patents on essential medicines. Such a humanising approach, together with other complimentary measures, has the potential to re-orient and re-engineer the concept of patents on essential medicines and the concomitant regulatory framework thereby promoting access to medicines in the COVID-19 era and beyond.
