Challenges confronting health care workers in government's ARV rollout: rights and responsibilities

South Africa is renowned for having a progressive Constitution with strong protection of human rights, including protection for persons using the public health system. While significant recent discourse and jurisprudence have focused on the rights of patients, the situation and rights of providers of health care services have not been adequately ventilated. This paper attempts to foreground the position of the human resources personnel located at the centre of the roll-out of the government's ambitious programme of anti-retroviral (ARV) therapy.   The HIV/AIDS epidemic represents a major public health crisis in our country and, inasmuch as various critical policies and programmes have been devised in response, the key to a successful outcome lies in the hands of the health care professionals tasked with implementing such strategies. Often pilloried by the public, our health care workers (HCWs) face an almost Herculean task of turning the tide on the epidemic. Unless the rights of HCWs are recognised and their needs adequately addressed, the best laid plans of government will be at risk.   This contribution attempts to identify and analyse the critical challenges confronting HCWs at the coalface of the HIV/AIDS treatment programme, in particular the extent to which their own rights are under threat, and offers recommendations to remedy the situation in order to ensure the successful realisation of the ARV rollout.  &nbsp

ACCESS TO JUSTICE: FROM LEGAL REPRESENTATION TO PROMOTION OF EQUALITY AND SOCIAL JUSTICE − ADDRESSING THE LEGAL ISOLATION OF THE POOR

From the perspective of the legal system, the first decade of democracy has been characterised by the dominant discourse of access to justice. Section 35 of the Constitution guarantees the right of an accused person to legal representation at state expense, where a “substantial injustice” might otherwise result. Thus, access to justice has routinely come to be defined as access to legal representation in criminal trials. This interpretation of the notion of access to justice is problematic because it fails to address a range of issues affecting the poor in our society, notably the realisation of their socio-economic rights. This article argues that the concept of access to justice needs to be redefined to incorporate the promotion of equality and social justice for the poor and other vulnerable groups in our society.Such redefinition will, of necessity, entail important shifts in the conceptualisation oflegal aid provision, as well as concomitant budgetary and other consequences.The article examines various strategies to address the legal isolation of the poor,and concludes with some recommendations as to how the reconceptualised projectfor access may be achieved

Quo Vadis Patent Litigation : Ascendis Animal Health (Pty) Limited v Merck Sharpe Dohme Corporation 2020 1 SA 327 (CC) - in search of the bigger picture on Patent Validity

In October 2019 the Constitutional Court (CC) handed down judgment in the matter of Ascendis Animal Health (Pty) Limited v Merck Sharpe Dohme Corporation 2020 1 SA 327 (CC). This is its first judgment dealing with the validity of a patent and, as it concerns issues that go the heart of patent law, the judgment potentially has far-reaching implications for patent litigation in South Africa. At issue was the question of whether a court's finding of patent validity on one ground in a revocation hearing ought to have a bearing on a subsequent infringement hearing on the same patent, to the extent that the alleged infringer is barred from raising a different ground to attack the validity of a patent. In essence, did the attempt to do so offend the principle of res judicata? This was a direct appeal to the Constitutional Court after the High Court ruled that it did so offend, and the Supreme Court of Appeal refused leave to appeal. The Constitutional Court was deadlocked on this issue, with the result that the decision of the High Court refusing Ascendis' application to amend to introduce a new ground of attack stands, and the res judicata objection was upheld. The decision raises important questions about the application of the principle of res judicata in such cases where the Patents Act allows dual proceedings for revocation and infringement actions, the meaning of provisions of the Act as they relate to the certification of patent claims, and the broader public interest considerations implicated in patent law adjudication. This note observes that while the outcome sends a strong signal about the courts' displeasure at attempts to prosecute "repeat litigation", an unsatisfactory outcome is that patents can apparently be validated on the basis of merely one of the mandatory requirements for patent validity as required by the Act. It argues that such an outcome is undesirable and does not serve the public interest. This is because it closes the door to further challenges while potentially thousands of patents, which would not have passed the validity test had they been subjected to substantive examination, remain on the patent register