The Congress of South African Trade Unions (COSATU) and the Treatment Action Campaign (TAC) have vowed to continue their campaign for the use of generic drugs to combat AIDS. This follows remarks by the Health Minister, Dr Manto Tshabala-Msimang, who said her government had doubts about using anti-retroviral drugs.
Dr Tshabalala-Msimang, despite victory, continued to express concerns about the affordability of the medication in a country such as South Africa which, despite its massive mineral resources, is extremely poor by international standards in terms of GDP per capita. However, she stressed that the government was not opposed in principle to anti-retroviral drugs.
The state's Medicines Control Council would not have licensed these drugs if the government had taken a principled stand against them, she told a press conference in Pretoria. But she made it clear the government was not prepared to move quickly to buy large quantities of the medication.
A COSATU spokesman, Mr Zwelinzima Vavi, called on major employers such as the Anglo-American mining corporation to provide treatment for their employees. But despite optimistic reports in newspapers such as the mass-circulation Sowetan, which had a headline reading "Government going ahead with generic drugs", the general view now is that it will be quite some time before these become available. This is the main reason COSATU and TAC have signalled that their campaign will continue.
Travellers arriving at Johannesburg International Airport are greeted on the way to baggage claim by a poster with a picture of a condom. The caption reads "Your Free Life Insurance", but for an estimated 4.7 million HIV-positive South Africans, life policies will have lapsed unless they can get treatment.
The very fact that there are so many people threatened was an extremely strong part of the government's response to the case taken by international drug companies. Under World Trade Organisation regulations, patents can be taken over by states in situations of national emergency.
Another strong suit for the South African authorities was the presence on their side of the argument of Mr Fred Abbott, an American expert on the WTO's complex regulations. Mr Abbott strongly countered the key claim by drug companies that South African legislation was too wide in its scope.
While the lawyers for both sides have put their cases in a manner consistent with the complicated nature of the problem, the same cannot be said for publicists who have taken a stance on the issue.
One group has put the issue as a stark choice between the lives of children and the profits of the pharmaceutical companies. Another has forecast the end of the world as we know it should the patent rights of the companies be infringed.
Neither of these posturings comes close to examining the complexity of the case. The key issue concerned whether South African legislation contravened the WTO agreement on Trade Related Intellectual Property Rights (TRIPS). Clause 15c of the South African Act, according to the companies, gave the government too much scope to override patents in health crises.
The South African government claimed it would use Clause 15c only if the health situation was so crucial that no other course was open to it. In making this case it was keeping in line with TRIPS, which allows governments to take a course known as compulsory licensing in the case of a national medical emergency.
Under compulsory licensing, the WTO allows governments to take possession of patents and transfer them to a manufacturer of genetic medications when an emergency exists. Few could argue convincingly that such an emergency does not exist in South Africa, where almost five million are believed to be HIV positive.
The drug companies had little argument against compulsory licensing but set their minds totally against South Africa's second option, "parallel importing". The multilateral pharmaceutical groups have maintained a practice of fixing different prices for different countries, although they would prefer to describe the tactic as "market segmentation".
Parallel importing would allow South Africa to import patented and branded drugs from countries in which the multinationals had decided to sell their products cheaply.
In the end it would appear that the drug companies threw in the towel for two reasons. They felt they were going to lose the case, and faced with defeat they realised that taking the action in the first place had been a public relations blunder of massive proportions.
Why they failed to realise this in the beginning is almost beyond comprehension. Pictures of impoverished and terminally ill children will always gain greater sympathy worldwide than the spectacle of large and wealthy multinational companies hiring expensive lawyers to go into battle in defence of maintaining the level of dividends to their shareholders.
The collapse of the Pretoria case will force the companies into further price-fixing. The target for increased prices on this occasion may well be the US.
