Let's not wait until a crisis for change to occur: a critical analysis of patent law in South Africa and its role in (not) fulfilling the constitutional right to health

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dc.contributor.advisorZungu, Bongiwe
dc.contributor.advisorTong, Lee-Ann
dc.contributor.authorGotora, Ngonidzaishe
dc.date.accessioned2025-11-20T13:43:12Z
dc.date.available2025-11-20T13:43:12Z
dc.date.issued2025
dc.date.updated2025-11-20T13:36:59Z
dc.description.abstractThe right to health is enshrined in international treaties and under section 27 of the Constitution of the Republic of South Africa. It has been established that access to affordable medicines is a fundamental element to its realisation. Research has identified patent law as a potential barrier to access. Research on how patent law creates a barrier to accessing affordable medicines has been focused on identification of the flaws within South Africa's patent regime. However, the impact of the high prices on patented medicines and what this means for the binding obligations that the right to health entails is limited. The main objective of this thesis is to determine if this impact constitutes an infringement to the constitutional right to health. The secondary objective is to analyse whether solutions suggested to improve access such as encouraging use of the TRIPS flexibilities and the implementation of the Intellectual Property Policy of the Republic of South Africa Phase I has yielded the desired result. The analysis reveals that high prices of patented medicines negatively impact the population that relies on public health systems within the country. This analysis suggests that the current patent regime has resulted in the prevalence of these high prices and as such, it stands as a barrier to the realisation of the right to health. The findings show that the suggestions to improve access are yet to be utilised. To date South Africa has not utilised compulsory licences or the ‘bolar' exception as tools to improve access. Furthermore, the implementation of the IP Policy although gradual, is lacking the urgency required for the situation at hand. This thesis draws suggestions from India and Canada that may be applied to South Africa. Additionally, the thesis extracts lessons from scholars who suggest pharmaceutical companies must embody the notions of communitarian ethic as a means of replacing a profit-centred approach with a community approach when setting prices. The thesis suggests such a communitarian ethic be applied as a solution that challenges the notion of ownership and distribution in IP law.
dc.identifier.apacitationGotora, N. (2025). <i>Let's not wait until a crisis for change to occur: a critical analysis of patent law in South Africa and its role in (not) fulfilling the constitutional right to health</i>. (). University of Cape Town ,Faculty of Law ,Department of Commercial Law. Retrieved from http://hdl.handle.net/11427/42285en_ZA
dc.identifier.chicagocitationGotora, Ngonidzaishe. <i>"Let's not wait until a crisis for change to occur: a critical analysis of patent law in South Africa and its role in (not) fulfilling the constitutional right to health."</i> ., University of Cape Town ,Faculty of Law ,Department of Commercial Law, 2025. http://hdl.handle.net/11427/42285en_ZA
dc.identifier.citationGotora, N. 2025. Let's not wait until a crisis for change to occur: a critical analysis of patent law in South Africa and its role in (not) fulfilling the constitutional right to health. . University of Cape Town ,Faculty of Law ,Department of Commercial Law. http://hdl.handle.net/11427/42285en_ZA
dc.identifier.ris TY - Thesis / Dissertation AU - Gotora, Ngonidzaishe AB - The right to health is enshrined in international treaties and under section 27 of the Constitution of the Republic of South Africa. It has been established that access to affordable medicines is a fundamental element to its realisation. Research has identified patent law as a potential barrier to access. Research on how patent law creates a barrier to accessing affordable medicines has been focused on identification of the flaws within South Africa's patent regime. However, the impact of the high prices on patented medicines and what this means for the binding obligations that the right to health entails is limited. The main objective of this thesis is to determine if this impact constitutes an infringement to the constitutional right to health. The secondary objective is to analyse whether solutions suggested to improve access such as encouraging use of the TRIPS flexibilities and the implementation of the Intellectual Property Policy of the Republic of South Africa Phase I has yielded the desired result. The analysis reveals that high prices of patented medicines negatively impact the population that relies on public health systems within the country. This analysis suggests that the current patent regime has resulted in the prevalence of these high prices and as such, it stands as a barrier to the realisation of the right to health. The findings show that the suggestions to improve access are yet to be utilised. To date South Africa has not utilised compulsory licences or the ‘bolar' exception as tools to improve access. Furthermore, the implementation of the IP Policy although gradual, is lacking the urgency required for the situation at hand. This thesis draws suggestions from India and Canada that may be applied to South Africa. Additionally, the thesis extracts lessons from scholars who suggest pharmaceutical companies must embody the notions of communitarian ethic as a means of replacing a profit-centred approach with a community approach when setting prices. The thesis suggests such a communitarian ethic be applied as a solution that challenges the notion of ownership and distribution in IP law. DA - 2025 DB - OpenUCT DP - University of Cape Town KW - Patent law KW - Affordability KW - Constitutional right to health KW - Pharmaceutical patents KW - TRIPS flexibilities KW - Communitarian ethic KW - Ubuntu LK - https://open.uct.ac.za PB - University of Cape Town PY - 2025 T1 - Let's not wait until a crisis for change to occur: a critical analysis of patent law in South Africa and its role in (not) fulfilling the constitutional right to health TI - Let's not wait until a crisis for change to occur: a critical analysis of patent law in South Africa and its role in (not) fulfilling the constitutional right to health UR - http://hdl.handle.net/11427/42285 ER - en_ZA
dc.identifier.urihttp://hdl.handle.net/11427/42285
dc.identifier.vancouvercitationGotora N. Let's not wait until a crisis for change to occur: a critical analysis of patent law in South Africa and its role in (not) fulfilling the constitutional right to health. []. University of Cape Town ,Faculty of Law ,Department of Commercial Law, 2025 [cited yyyy month dd]. Available from: http://hdl.handle.net/11427/42285en_ZA
dc.language.isoen
dc.language.rfc3066eng
dc.publisher.departmentDepartment of Commercial Law
dc.publisher.facultyFaculty of Law
dc.publisher.institutionUniversity of Cape Town
dc.subjectPatent law
dc.subjectAffordability
dc.subjectConstitutional right to health
dc.subjectPharmaceutical patents
dc.subjectTRIPS flexibilities
dc.subjectCommunitarian ethic
dc.subjectUbuntu
dc.titleLet's not wait until a crisis for change to occur: a critical analysis of patent law in South Africa and its role in (not) fulfilling the constitutional right to health
dc.typeThesis / Dissertation
dc.type.qualificationlevelMasters
dc.type.qualificationlevelMasters
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