In this extract from the book "Debunking Delusions: The inside story of the Treatment Action Campaign" by Nathan Geffen, the quackery of Matthias Rath comes under the spotlight.
My founding affidavit in the quackery case described how Rath and his agents had distributed advertisements and pamphlets making the false claim that vitamins treated Aids.
It explained how Rath had illegally distributed his vitamins as medicines to people with HIV in townships in the Western Cape and how he had conducted a clinical trial on them, by his own admission, without the approval of an ethics committee or the Medicines Control Council (MCC). Our court papers also cited Rath employees and colleagues, including David Rasnick, Sam Mhlongo and Anthony Brink.
More critical, though, was our case against the state. It is surely the government’s duty, not a civil society organisation’s, to enforce the law. Yet the state, instead of doing this, appeared to be helping Rath to break the law. I described the many letters and telephone calls from the TAC to the MCC and Department of Health officials and how they had achieved almost nothing. On the contrary, I showed that the actions of Tshabalala-Msimang and Mseleku had helped Rath.
We had powerful supporting affidavits. Francois Venter explained the science of HIV. Rob Dorrington, an actuarial scientist, who has led the development of the most respected model for estimating population statistics about the epidemic, demonstrated how we know that there’s a large HIV epidemic in the country. Andy Gray, a pharmacologist at the University of KwaZulu-Natal, who also sits on an MCC committee, explained how Rath’s vitamins actually exceeded the kinds of dosages that would allow them to be distributed without first being registered, how they contained a scheduled substance and how the manner in which he was distributing them, irrespective of their dosages and content, made them medicines.
In South African law, a product is a medicine by virtue of the claims made about it. If you sell tea and claim it treats cancer, then it is a medicine. If you own a kiosk and sell AZT, marketing it merely as a sweetie for children, then the AZT is not a medicine. (However, you would still be acting illegally because AZT is a scheduled substance.) This is an essential point to understand about medicines law in this country.
Rath and his lawyers and the government and its lawyers never seemed to get it.
They responded by arguing that Rath’s products were food supplements, not medicines.
Leslie London, an expert in public health, explained in an affidavit that Rath had run a clinical trial and that it was illegal. He also explained the guidelines that had been established in South Africa for conducting trials. He showed that Rath had not followed these.
He examined several affidavits by TAC members who went to Rath’s health facilities and showed that they had not given proper informed consent to Rath’s agents.
Importantly, London asserted that Rath’s experiment had violated an ethical principle known as clinical equipoise. This means that if you are a patient taking part in a clinical trial for a new medicine, you must receive the current standard of care in addition to the experimental medicine. Rath’s facilities only gave patients multivitamins; they failed to give patients with Aids ARVs, the current standard of care.
Two doctors, Peter Saranchuk and Kevin Rebe, testified that their patients had stopped taking Haart because of Rath’s facilities.
Abusing court processes
Rath’s way of dealing with the court process was to abuse it. We filed our court papers on 25 November 2005. The court rules specified that the answering affidavits had to be filed by 9 January 2006, but it is common for both sides to allow each other extensions, especially when the papers are voluminous. Brink defended himself separately from Rath and his other employees. He asked for an extension, which was granted, and filed his papers only slightly late, as did the state. Rath, however, delayed and delayed. When our lawyers wrote to Rath’s lawyers, Qunta Incorporated, asking when they were filing their response, promises accompanied by lame excuses were made and not kept.
Irritated with Rath’s games, we applied for a court date. Lo and behold, a few days before the hearing, on 20 March 2007 – more than a year late – Rath filed nine volumes, or over 2,700 pages. His court papers included no fewer than four books, none relevant to the proceedings.
His own affidavit consisted primarily of a long rant against the pharmaceutical industry and false allegations aligning TAC, Sama and all our expert affidavit deponents with it. It attached numerous scientific papers which according to Rath supported his case, but upon reading them we found that they actually contradicted what he was arguing.
If you file court papers so late, there is no obligation on the other side to accept them. We did not. So at the court hearing, Rath applied for an order condoning their late filing and allowing his court papers to be included. Judge Fourie of the Cape High Court was unimpressed.
He said of Rath’s excuse for filing late that it ‘does not bear scrutiny’. He explained that Rath had shown a ‘flagrant disregard of the rules of court’. He gave a punitive cost order against Rath but nevertheless decided to allow his papers to be filed in the interests of justice.
Through the looking glass
While Rath’s affidavit was bizarre, reading Anthony Brink’s affidavit felt like going through the looking glass into Lewis Carroll’s Wonderland. Brink filed 1,289 pages. Once more, instead of testifying about the facts of the case, Brink wrote a polemic that attacked not only our integrity, but the integrity of 51 judges of the Cape High Court as well as the Supreme Court of Appeal and Constitutional Court judges. This is not a recommended method for winning court cases.
He also attacked the MCC, comparing it to the Broederbond, the secret Afrikaner society that had unduly influenced the apartheid government.
When it came to Aids, he had no qualifications to depose an expert affidavit, so he described himself as an autodidact.
His testimony is replete with self-important descriptions and references to his own self-published, non-peer-reviewed ‘scientific’ writing. It includes asides about witch burning, donations by a pharmaceutical company to the Nazis and, reminiscent of the Castro Hlongwane document, an explanation of Aids as a white racist conspiracy. Could a trained advocate really have thought a court would find this acceptable?
At the time he wrote his affidavit, Sipho Mthathi was the general secretary of TAC, the organisation’s most powerful position. Achmat had withdrawn from day-to-day work and Mthathi was firmly in control of the organisation. A strong-willed and effective leader with an excellent understanding of politics, she was the main decision-maker and spokesperson for the organisation.
Brink had no knowledge of the internal workings of the organisation, yet he chose to write the following racist nonsense under oath: ‘The TAC is essentially a cult-of-personality one-man-band practically owned and completely controlled by Achmat, its founder and leader. The Africans hired by the TAC to give colour to its administration are conspicuously mere ciphers echoing their master’s voice, with the letters sent out in their name seemingly ghost-written for them.’
Mthathi, who writes poetry, publishes opinion pieces, and has an honours degree from the University of the Western Cape and a higher diploma in education from Rhodes University, responded by attaching correspondence she had written to senior people in government. She
stated: ‘Contrary to Mr Brink’s racist assumptions, I can write a letter. I do not need to have letters or articles ghost-written for me’.
Finally, two and a half years after filing our papers, the case got to court.
The TAC Western Cape office organised protests of about a hundred people against Rath and the Minister of Health every day of the case. Our members filled most of the seats of the court alongside journalists and a motley array of Rath supporters. Rath himself had left the country and did not appear. Brink had approached our lawyers to settle on the basis that neither side would seek costs against each other. Since the case was set down for three days and because we suspected Brink in his madness would very likely take up an enormous amount of time and try to confuse the court, we decided to accept. We reckoned that if we won against Rath, Brink would be irreparably tainted by the judgment.
Exactly three months later, Judge Dumisani Zondi delivered his judgment. He declared Rath’s and Rasnick’s clinical trial unlawful and ordered them to cease. He interdicted Rath from running further advertisements claiming that Vitacell had medicinal effects on Aids.
He then declared that the Minister of Health and her director-general had a duty to take reasonable measures to prevent Rath and his colleagues from running unauthorised clinical trials and adverts claiming that Vitacell had medicinal effects on Aids.
(Health24, March 2010)
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