The constitutional right to conduct business in South Africa – limitations imposed by a state of emergency or disaster
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Date
2023
Authors
Verhoef, Andre
Journal Title
Journal ISSN
Volume Title
Publisher
University of the Free State
Abstract
It seems as if governments worldwide consistently act in the best interest of most of their civil and corporate citizens when a national crisis arises, resulting in minority groups not always being treated fairly. Governments often base their decisions on national interests, policy and political considerations. During the COVID-19 pandemic, it became evident that there is a greater need for measures to ensure that decisions made during a state of disaster or pandemic are based on rational grounds, failing which the constitutional and other rights of minority groups can be influenced.
Case studies of South Africa, India, Australia, and the United States of America (USA) have shown how complex crisis decision-making is.
For example:
As shown in the tobacco and alcoholic beverage industries, South Africa prioritised healthcare over intellectual property (IP) rights, which raised doubts regarding the efficacy of the TRIPS Agreement on matters such as branding restrictions during a pandemic.
Australia's pragmatic approach, using common-sense regulatory reforms and working closely with trade unions, showed how pre-emptive measures protect employment, businesses, and the right to work. India's dependence on its pharmaceutical industry's capabilities despite international legal choices shows the relevance and importance of seeking local and pragmatic solutions, even more so if you are a developing country. Therefore, the legal analysis of the freedom to conduct business in Australia and India yielded valuable insights that can be used in South Africa to develop future legislation and legal considerations to manage such situations better.
The USA's choice not to exercise march-in rights or enforce patent waivers emphasised public safety and health over intellectual property rights. It seems the USA's approach worked best to advance science without compromising safety or job
losses.
The dissertation acknowledges the importance of international collaboration in promoting economic progress and defending social interests. Although they address separate issues, the TRIPS Agreement and the draft Pandemic Treaty are
fundamental advances towards a more sustainable and resilient global economy. These accords emphasise collaboration, readiness, and accountability for complex global issues. Lastly, the dissertation emphasised the need for adaptive and
collaborative approaches to pandemics and other crises.
Description
Dissertation (LL.M.(Law))--University of the Free State, 2023