Market Exclusivity and the Right to Health in South Africa: A Primer for Tackling the Paradox

Abstract

South Africa remains confronted with challenges to the realization of the right to healthcare services, shaped by both national and global dynamics. The proliferation of exclusivity regimes in intellectual property (IP) rule-making poses a threat to affordable healthcare services. Although South Africa is not a signatory to any of these enhanced IP norms, it may still be at risk through transposition, given that the current norm-setting constitutes the future direction of rule-making. These global dynamics are compounded by overly protective measures in South Africa's patent law as well as non-IP factors, particularly the prevalent weak health infrastructure. Although South Africa's IP Policy Phase I incorporates a raft of changes to address the situation, capacity constraints could thwart effective outcomes. Consequently, beyond the current patent law reform, there should be a roadmap for how to manage global IP norm-setting as well as non-IP factors, to foster universal healthcare coverage in South Africa.