Defendants A[ ] Achmat First [ ] July 2008 "A[ ]A1" – "A[ ]A3"

Claim No. HQ07X02333 IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

B E T W E E N :

MATTHIAS RATH CLAIMANT - and –

(1) GUARDIAN NEWS AND MEDIA LIMITED

(2) BEN GOLDACRE DEFENDANTS

WITNESS STATEMENT OF ABDURRAZACK [ ] ACHMAT

I, ABDURRAZACK [ ] ACHMAT, of [], Muizenberg, Cape Town, South Africa, WILL SAY as follows:

1. I am a co-founder and former Chairperson of the Treatment Action Campaign (the "TAC"), which campaigns for the rights and health of people with HIV/AIDS in South Africa. I am commonly known as "Zackie" Achmat.

2. I have worked to protect, promote, enforce and advance human rights for more than 30 years.

3. I hold the degree BA Honours (cum laude) from the University of Western Cape in South Africa.

4. In addition to full-time work as a political activist until the 1990s, I have worked for the Bellville Community Health Project, the AIDS Law Project, Community Health Media Trust, the National Coalition for Gay and Lesbian Equality and the Southern African Clothing and Textile Workers Union. 5. Since March 2008, I have become a full-time employee of the Treatment Action Campaign as its Deputy General-Secretary.

6. I was appointed to the World Health Organization’s HIV Strategic and Technical Committee in November 2004 and I am now serving a second-term on that body. I also serve as a member of the Technical Task Team on Treatment, Care and Support of the South African National AIDS Council.

7. As a result of my work with the TAC, I won the inaugural Desmond Tutu Leadership Award in 2002, the Jonathan Mann Award for Global Health and Human Rights in 2003, and together with the TAC, I was nominated by the American Friends Service Committee (better known as the Quakers) for the 2004 Nobel Peace Prize. The TAC also won the Nelson Mandela Health and Human Rights Award in 2003. I have been awarded four honorary degrees by South African universities: the University of Cape Town; University of Western Cape, University of KwaZulu-Natal and Rhodes University.

8. I make this statement in support of the Defendants, who published a number of newspaper articles relating to Matthias Rath.

9. The work of the TAC and others that I describe in this affidavit is undertaken on a daily basis by thousands of TAC members, more than 100 staff members and countless supporters. My colleagues and comrades in TAC who over the years have made an enormous contribution to resist the HIV denialism of the government and the quackery of Rath include: Fredalene Booysen, Deena Bosch, Thabo Cele, Lihle Dlamini, Vuyiseka Dubula, Nomfundo Eland, Nathan Geffen, Mark Heywood, Nokhwezi Hoboyi, Bheki Khoza, Nonkosi Khumalo, Victor Lackay, Patricia Maditse, Mandla Majola, Busisiwe Maqungo, Nkhensani Mavasa, Phillip Mokoena, Sipho Mthathi, Portia Ngcaba, Noloyiso Nthamehlo, Akhona Ntsaluba, cati Vawda, Andrew Warlick and countless others.

10. Unless stated otherwise, the facts stated in this witness statement are within my own knowledge and belief.

Background

11. In light of the fact that one of the articles that Matthias Rath complains about related to a personal attack on me (by Anthony Brink, an associate and former employee of Matthias Rath), I have been asked by the Defendants' solicitors to explain my personal background in some detail.

Childhood

12. I was born on 21 March 1962 in Johannesburg, South Africa, but grew up in a Muslim community in Salt River, Cape Town on the Western Cape of South Africa. At age 13 my father was very briefly a member of the Young Communist League. My mother and aunt who raised me were shop stewards for the Garment Workers Union. In 1950, they assisted in the organization of union protests against apartheid and in defence of Solly Sachs, the general-secretary of the union who was the first person banned in South Africa by the apartheid government. Both remained active in the labour movement until the 1980s. 13. My childhood was difficult for a number of reasons. The 1960s were the height of apartheid, and I was labelled a "coloured" by the ruling regime because of my mixed-race ancestry. Living conditions were not good and my family had very little money. Central to my childhood was a firm belief that all people are equal and as the eldest of six children, I was expected to demonstrate responsibility towards my siblings. My parents were divorced for a number of years and my mother and aunt supported us.

14. Also, by the age of around 10 I became aware of my homosexuality and began to question my family's religious beliefs because these were justified to condemn me. In 1995, I wrote about my childhood in an essay called "My Childhood as an Adult Molester" which I refer to at pages 1 to [ ] of exhibit "A[ ]A1".

15. The importance of this autobiographical essay is the fact that I learnt about gay sex and sexuality from the streets instead from the appropriate sources such as family, school and peers. I was inappropriately sexually active from an age that is too early and I believe that openness in all these matters is the best way to address them.

16. As a public figure I have also learnt that openness is the best way to address what others may find different, offensive, or, may have prejudice about in relation to sexuality, politics, health and one’s own learned prejudices.

Activities during apartheid

17. I became an activist when a peaceful mass demonstration of black, African students in Soweto against the imposition of Afrikaans resulted in a series of massacres with more than 700 deaths mainly of school-going children my age. I was fourteen then and learnt the meaning of the word solidarity. From 1976, school boycotts were a popular form of civil disobedience against apartheid. The 1976 student uprising was the first time that the “coloured” community mobilised on a wide-scale to oppose apartheid. Although the "coloured" students joined black students in the boycotts, we were often the first to go back to school, which frustrated me. Therefore, in 1977 after failing to convince other coloured students to continue the boycott, I thought it would be more effective if I just made it impossible for them to attend school. Therefore, I I set my high school on fire. I was sentenced to corporal punishment by the magistrate, who did not believe that I could have acted alone.

18. In the following years I became very active politically and considered myself a socialist, I identified with the demands of the ANC. Between 1977 and 1980 I was imprisoned five times by the apartheid regime.

19. Just after the death of Steve Biko in 1977, I was arrested along with more than 100 fellow high-school anti-apartheid campaigners. The youngest person in our group was twelve years old. I was detained under section 6 of the 1967 Terrorism Act - which allowed someone suspected of involvement in "terrorism" (which was very broadly defined as anything that might "endanger the maintenance of law and order") to be detained for a six month period (renewable) without trial – and held incommunicado. I was detained for around 3 months. The only people who could speak to me were the police and security services and I was assaulted, deprived of sleep by them and harassed because of my religion and sexuality.

20. In 1978, I again was detained without trial, for around 4 weeks, and later that year served 6 months in prison for “incitement” where I was kept in solitary confinement at Pollsmoor Prison. This was a detention facility for people convicted of criminal offences.

21. In 1980 I was again part of a group that organised a class boycott in the townships around Cape Town. We were protesting about the poor education that we, in coloured and black schools, received under apartheid. As a result of this, I was arrested again. I served almost 8 months in what was known as "preventative detention" under the 1950 Internal Security Act. 21 of those arrested, including me, were classified by the authorities as dangerous and were kept apart from all other prisoners. At one point during this detention I and around sixty other detainees staged a hunger strike, which won us beds, books, and radios. It was during this spell in prison that I was recruited to the African National Congress ("ANC") by Johnny Issel and Hennie Ferus. Although I joined the ANC, after I had committed arson in my school, I eschewed the use of terrorism to achieve political aims. I therefore refused to join MK – the “guerrilla army” of the ANC. I am not a pacifist but believe in non-violent political struggle as a matter of principle.

22. When I left prison in 1980 until around 1990 I became involved in the work of the movement for democracy led by the ANC and worked 'underground' and ‘semi- underground’. In 1981, Hennie Ferus was killed in a car crash and together with Cecyl Esau under the direction of Johnny Issel we organised the first openly ANC funeral in the Western Cape for almost two decades. I was involved in the youth, community and labour movements, which led to the creation in 1983 of the anti-apartheid United Democratic Front ("UDF") organisation. For instance, I was also secretary of a number of solidarity committees for striking workers employed including the British multinational companies Wilson Rowntree and Leyland.

23. I worked in rural areas such as Ramthlabama in the former “independent” apartheid homeland Boputhatswana to promote education and anti-apartheid organisation as well as Worcester and Paarl in the Western Cape. Together with other colleagues, I was involved in setting up a primary health-care clinic in the coloured working-class communities of Mitchell’s Plein (where my parents moved), Bellville and several education projects including the Primary and High Schools Tuition Project in the Bo- Kaap, a Muslim community in Cape Town and the Young Workers’ Education Project. In 1983, I was a founder member of the Cape Youth Congress – the youth wing of the United Democratic Front.

24. A critical part of my work was research on economic history and politics (my partner Jack Phillip Lewis was also a banned person and worked on a PhD in economics). Although my family feared for my safety and security, they always supported me and later all my immediate family members becamse active in community organisation against apartheid. In 1985, I joined the Marxist-Workers tendency of the ANC, a revolutionary socialist group and regularly received Marxist political education in the United Kingdom. 25. It was in this context that I met Mark Heywood, my colleague, comrade and friend who is now a leader of the Treatment Action Campaign, Executive Director of the AIDS Law Project. Mark Heywood is now the deputy-chairperson of the South African National AIDS Council (SANAC) under the direct guidance and leadership of the Deputy-President of the Republic of South Africa, Ms Phumzile Mlambo-Ngcuka.

26. In 1990 the apartheid government lifted its ban on the ANC, released Nelson Mandela from prison and started negotiations regarding a new South African constitution. Thereafter my politics became democratic socialist within the Constitution and under a legitimate government and state institutions. However, I was still a very committed activist campaigning for the end of apartheid.

Discovery of HIV status

27. In 1990 I went to see my doctor for a routine medical examination. He told me that I had the human immunodeficiency virus ("HIV"). Despite telling my closest friends and sexual partners, I went into denial. However, I then fell into the most profound depression. (In fact, I had suffered with depression on and off since I was around 12 years old.) We had finally won our freedom — it was the most exciting time in my country's history — and there I was preparing for death.

28. I literally did not leave my home for about six months. I rented hundreds of films on video, ordered takeaway food, and prepared myself to die. Because of my lack of understanding of HIV then, I did not know that it was not necessarily a death sentence. My doctor had told me I had six months to live, but when I looked around after six months and was very much still alive, I decided that it was time to leave the house and to get on with my life.

Further education

29. I never completed High School, so I decided that I would try to improve my formal education. Because of prior learning experience, I became the first student at the University of the Western Cape who did not have and undergraduate degree but was allowed to enter at Honours level after writing an examination. Completing the degree would also grant me an ordinary Bachelor of Arts degree. In 1992, I began a degree in English Literature at the University of Western Cape and I graduated with a BA Hons (cum laude) in English Literature.

30. I also took a six month course in film-making at the Cape Town Film School. I have directed several documentary films on the rights of children, the history of the Afrikaans language, lesbian and gay history in South Africa and the jurisprudence of the Constitutional Court.

31. With the end of apartheid and South Africa's first fully representative democratic elections in 1994, I began to focus my energies fully on campaigning for the rights of gay people and people living with HIV/AIDS. AIDS Law Project, Bellville Community Health Project and the Progressive Primary Health Care Network

32. I became involved in HIV/AIDS and community health activism. I continued active work and later involvement in the Bellville Community Health Project (BCHP) form 1985 – 1998. The BCHP focused primarily on primary health care in a working class community with no local health care access, TB and HIV prevention and education. As a member of the BCHP, I became active in the Progressive Primary Health care Network (PPHCN) and the National AIDS Convention of South Africa.

33. In March 1994, I joined the AIDS Law Project at the Centre for Applied Legal Studies at the University of Witwatersrand as a staff member. My immediate superior was then Advocate Edwin Cameron (SC) an openly gay man, one of the most well-known anti- apartheid lawyers in our country had created the law and policy unit on HIV/AIDS. He was also the first High Court judge appointed by the new President Mandela and I succeeded him as director of the AIDS Law Project. I was the project Director until August 1997 and directed a staff of two attorneys and a paralegal. At the time, Edwin Cameron and I both had HIV but kept our status confined to circles of friends and comrades.

34. The AIDS Law Project was created to challenge unfair discrimination in policy and conduct of public and private bodies. The Constitution of the Republic of South Africa has a progressive bill of rights that imposes a range of positive duties on the state. ith HIV/AIDS or that denied people with HIV/AIDS access to employment, employee benefits, insurance, education and other services.

35. While I worked at the AIDS Law Project, I directly supervised attorneys working on two cases in the High Courts of the Transvaal Provincial Division. The first of these cases C v Minister of Safety and Security, 1996 (4) SA 292 (T) affirmed the basic principles of informed consent for HIV counselling and testing. The second, S v Cloete, 1995 (1) SACR 367 (W) confirmed the right of a prisoner who had not committed a violent crime to be considered for correctional supervision within the community as a sentence.

36. In 1995, the then Minister of Justice, the late Advocate Dullah Omar SC, appointed the second SA Law Commission Project Committee on HIV/AIDS. Justice Edwin Cameron (then a Judge of the High Court) was appointed chairperson of the Committee and with other members, I was appointed to the SA Law Commission on HIV/AIDS. The Committee issued three interim reports to guide national policy on HIV/AIDS: HIV testing and informed consent; rationales against pre-employment HIV testing and the prohibition on unfair discrimination against learners with HIV/AIDS in schools. In 1997, I also served on the Correctional Services Committee on Health in Prisons. The Committee agreed a national policy on HIV/AIDS for prisons. While working at the AIDS Law Project and afterwards, I contributed to the development of HIV/AIDS policy and legal strategy. I also served as a Board member of the AIDS Law Project. Gay rights activism

37. In 1994, I co-founded the National Coalition for Gay and Lesbian Equality (NCGLE) a body that campaigned for the rights of lesbian and gay people in South Africa. For a number of years, I was co-convenor of the Coalition with Ms Phumi Mtetwa and later the organisation’s Director. We successfully campaigned to incorporate the prohibition on unfair discrimination on the grounds of sexual orientation in the final Constitution of democratic South Africa passed in 1996.

38. We also brought a number of cases to the South African courts including the Constitutional Court. For example, the first case I worked on was Langemaat v Minister of Safety and Security and Others, 1998 (4) BCLR 444 (T) -- a matter that outlawed unfair discrimination in medical insurance for life-partners of lesbian and gay people. This was confirmed in the Medical Schemes Act (Act 131 of 1998). I also worked on the decriminalization of sodomy in a 1998 case called National Coalition for Gay and Lesbian Equality and the South African Human Rights Commission v. Minister of Justice and Others, 1999 (1) SA 6 (CC) on the basis that the common law prohibition of homosexual conduct between consenting adults in private violated our Constitution. I worked at the law firm Nicholls and Cambanis under the direction of Ms Crystal Cambanis during 1998 to research these cases and prepare papers.

39. NCGLE also made successful parliamentary submissions on equality in the fields of employment, education, refugee, health-care, police, prison, pensions, insurance and other legislation and policy. The final case that I worked on for the NCGLE that included the preparation of the papers for the Court under the direction of Mr. William Kerfoot of the Legal Resources Centre was National Coalition for Gay and Lesbian and Gay Equality and Others v Minister of Home Affairs 2000 (2) SA 1 (CC). The matter established the equal right for lesbian and gay life-partners of South African nationals or permanent residents to full-residency status. The above litigation established the jurisprudential framework for the equal rights to foster and adopt children, equal right to pensions and insurance pay-outs on death for life partners of lesbian and gay people. This jurisprudence with subsequent cases constituted the basis for the reasoning in Minister of Home Affairs and Another v Fourie and Others; Lesbian and Gay Equality Project and Others v Minister of Home Affairs and Others 2006 (3) BCLR 355 (CC) that recognised the right of lesbian and gay people to marriage and a family-life.

40. We worked with very broad human rights coalitions including NGOs, churches, children’s rights bodies and the labour movement to fulfill the obligations imposed on government and society by the Constitution of South Africa.

HIV/AIDS in South Africa

HIV/AIDS

41. I understand from the Defendants' solicitors that various scientific aspects of HIVAIDS will be dealt with by way of expert evidence in this case. However, given my involvement in the TAC and the context of this case (and the various comments by Anthony Brink in his complaint to the International Criminal Court (the "ICC Complaint") regarding my knowledge about HIV/AIDS), I should briefly set out my understanding of HIV/AIDS and its treatment.

42. HIV is a virus that attacks the body's immune system. It infects CD4 cells, which are found in blood and are responsible for assisting the human body to deal with any bacterial, viral, fungal or other infection. After becoming infected, the CD4 cells are destroyed by HIV. Although the body will attempt to produce more CD4 cells, HIV spreads by breaking down the DNA in our cells and then reassembling it to make copies of itself so the numbers of CD4 cells will eventually decline and the immune system will stop working. This leaves a person who is infected with HIV with a high risk of developing a serious infection or disease, such as tuberculosis ("TB") or pneumonia, which are known as “co-infections” or "opportunistic infections".

43. HIV is transmitted from person to person through bodily fluids (most sexual, but also through breast milk) and through contact with contaminated blood (from needles contaminated with infected blood, through blood transfusion or organ donation from people with the virus, and from mother to baby).

44. Acquired Immune Deficiency Syndrome ("AIDS") is the term that is used to describe the latter stages of HIV, when the immune system has stopped working and the person develops a life-threatening condition.

Treatment and prevention of HIV/AIDS

45. Once someone is infected with HIV the virus will remain in their body for the rest of their life. There is currently no cure for HIV and no vaccine to prevent people from becoming infected. However, antiretroviral drugs ("ARVs") can help prevent mother to child transmission of the virus (known as mother to child transmission prevention – "MTCTP") and highly active antiretroviral treatment ("HAART") has been shown to reduce illness and death substantially among AIDS patients. I have personally witnessed the transformation in the lives of hundreds (if not thousands) of my comrades with HIV who lived long enough to access ARVs. Their health, self-esteem, quality of life and ability to care for themselves and others was transformed through ARV access.

46. In my personal experience, HAART simply has transformed my life. When I began HAART for the first time on 05 September 2003, my CD4 count was about 207 and my viral load had increased from less than 5000 to over 30 000 and I was regularly extremely unwell. My concentration and energy began to fail. Last year it reached over 600 and after five years (despite initial side-effects discussed below) my viral load remains undetectable. I am also still on my first-line regimen of zidovudine (AZT), lamivudine and nevirapine. I attach a prescription from Dr. Graeme Meintjies, my physician and a specialist in the public sector at GF Jooste Hospital. The prescription indicates both HIV and heart disease medicines but excludes my medicines for chronic depression. Because of my ARV medicines, I live a full and energetic life with ordinary flu and bronchitis when the rest of my community succumb to the same infections. I regularly exercise and often work 12 to 14 hour days. 47. My doctor tells me that I could live a healthy life for approximately 30 years on ARV medication.

48. Like most chronic medications, such as chemotherapy, HAART involves side effects, some of which are serious. However, in my experience people undergoing HAART can be monitored for these side effects, and their treatment regimen changed if necessary, and these side effects are easily outweighed by the benefits of HAART. For example, when I first started on HAART I began to get pins and needles in my feet, which is a common and often serious side effect of stavudine which is one of the drugs I started on. However, when I told my doctor about this, he changed my medicines from a stavudine HAART regimen to a zidovudine (AZT) regimen.

49. I know that the World Health Organisation ("WHO") recommends that HAART should begin before the CD4 count falls below 200 cells per microlitre of blood, but not before the patient's CD4 count falls below 350. (See Antiretroviral Therapy for HIV Infection in Adults and Adolescents: Recommendations for a public health approach. 2006 revision at page 17)

50. The South African Government Guidelines for the Management of HIV & AIDS in Health Facilities (Draft March 2008) at page 10 recommends that HAART should begin when a patient's CD4 count falls below 250 and/or has developed a Stage 4 illness.

Extent of the HIV/AIDS epidemic in South Africa

51. I am not an epidemiologist, nor, a statistician I have no expertise or qualification in public health. However, my experience as an advocate and activist for policy change, and, a person who has lived through the HIV/AIDS denialism of the Mbeki administration I have personal knowledge of the facts contained below.

52. I refer at pages [] to [ ] of exhibit "A[ ]A1" to a copy of an affidavit by Professor Robert Dorrington of the Centre for Actuarial Research at the University of Cape Town, which was prepared in support of proceedings brought by the TAC against Matthias Rath and others in 2005 (about which, see further at paragraphs [ ] to [ ]). In summary, Professor Dorrington states that:

52.1 There were between 4.5 and over 6 million people in South Africa living with HIV in 2005.

52.2 The Actuarial Society of South Africa estimated that over half a million of the 5 million or so people in South Africa with HIV in 2005 had AIDS.

52.3 The Actuarial Society of South Africa estimates that over 300,000 South Africans died of AIDS in 2004 and that an even greater number would die of AIDS in 2005 and in the following years.

53. While it is difficult to be precise, my understanding is that it is generally accepted that between 5 and 6 million people in South Africa are living with HIV/AIDS and that over 300,000 people per year (or around 900 people per day) die from AIDS in South Africa. 54. Statistics South Africa, the government agency charged with collection a range of data released its last report South Africa: Mortality and causes of death in South Africa, 2005: Findings from death notification (14 June 2007). Its latest mortality and morbidity data based on death certificates of people who have died show that in 2005, about 538 000 died of natural causes in South Africa compared with 262 457 natural deaths in 1997.

55. The highest number of deaths that occurred in 2005 included infants aged 0-4 years, followed by adults aged 30-34 years. Among males the highest number of deaths were again infants aged 0-4, followed by adults aged 35-39. Among females, the highest deaths occurred among those aged 30-34, followed by those aged 0-4.

Any decent scientist, clinician or epidemiologist will admit that during the Mbeki administration, more than 1.5 million people died prematurely because of HIV/AIDS and that from 2002 many of those lives could have been saved through antiretroviral treatment.

Societal issues

56. I have worked mostly as a volunteer in the HIV epidemic for twenty years since at least 1987 in the Bellville Community Health Project, through the Organisation of Lesbian and Gay Activists and the Gay Association of South Africa. My views are based on this experience and extensive reading.

57. Ordinarily, any individual fears being diagnosed with a life-threatening illness. Globally, the stigma and discrimination related to sex, sexual orientation, drug use, sex work, race and class have all contributed to silence on HIV/AIDS. South Africa is no different.

58. The prevention and treatment of HIV in South Africa is hampered by a set of inter- connected prejudices, stereotypes, inequalities, fears and discrimination. These societal issues also make people in South Africa living with HIV/AIDS particularly susceptible to messages such as those spread by Matthias Rath and other quacks. The prejudice and discrimination associated with the disease in my experience, systemically prevents people living with HIV from being tested, practising safer sex and seeking treatment and care. HIV is an incurable chronic illness that requires lifelong treatment and, accordingly, many people irrespective of educational status, race, class, or gender would live in denial – and are predisposed to heed claims that there is an easy alternative 'cure'.

59. The first stereotype is located in the issue of race and sexuality. Historically, the sexual relationships of gay men and black people have been stereotyped as promiscuous. In various ways through policy-makers, programmes, communities, families and individuals, these relationships are described as sinful or dangerous. These attitudes fuel a denial based on the stereotype of identity or the fear of acknowledging risk behaviour. Research continuously demonstrates that multiple concurrent partnerships contribute significantly to HIV transmission. (See De Waal, A. AIDS and Power: Why there is no political crisis – yet Zed Books (2006) at pages 9—33; see also Concurrent Sexual Partnerships Amongst Young Adults in South Africa by Parker et al (2007) at pages 17 and 46--49).

60. Second, gender and class inequalities play a significant role in the HIV epidemic in South Africa. More than 50 000 cases of rape are reported annually in our country. The majority of women and men have no decent income and unemployment stands at more than 4.5 million people. Many harmful customary practices on inheritance, virginity testing and bride-price inhibit risk-reduction.

61. Third, African Traditional Medicine (ATM) has played a significant role in the lives of the continents citizens for thousands of years.

61.1 The criminalisation of ATM during colonial conquest and under apartheid as witchcraft fossilised its practice. This policy of exclusion prevented basic science and clinical research, development of medicines, the training and recognition of traditional health practitioners.

61.2 Government failure under apartheid and in democratic South Africa to develop and recognise ATM has not stopped its practice nor limited its use. Millions of people in our country, especially those who cannot access public or private health care, use ATM. According to government the annual trade in raw medicinal plants is valued at 520 million South African Rands (one GBP = ZAR14). Prescribing medicines and consultation fees by approximately 200 000 people who claim to be traditional healers brings the total value of the industry to ZAR2.6 billion. (See Draft Policy on African Tradition Medicine for South Africa Government Notice 906 of 208, GG No. 31265 published on 25th July 2008 for public comment).

61.3 Many traditional healers using herbs have genuine historical knowledge derived from oral tradition. Many others can make claims on unsuspecting patients that would include the prevention, diagnosis and treatment of illness without any recorded scientific or clinical evidence. Government has adopted the Traditional Health Practitioners Act (Act 22 of 2007) but this law is not in force, nor, does it protect consumers or patients. In this unregulated environment, faced with inadequate health-care, and, HIV denialism many people are at the mercy of all manner of quacks including those who claim to practice ATM or “natural” medicine.

61.4 There is also a fear of the condescension, paternalism and colonial origins of medicine governed by science. Inferior apartheid education coupled with the fact that the majority of medical doctors are white (language barriers) and the fact quality health care has historically been the preserve of white and now middle-class people of all races creates a further barrier that exploits the fears of the majority of black African people.

62. Fourth, in all societies, science and the scientific governance of medicine is an accepted part of our cultural capital and it is not studied or even questioned by the vast majority of people. The scientific governance of medicine is accepted by all of us as a fact in the same way that scientific knowledge that governs the technologies of the pervasive mobile phones, television and the internet is accepted. While this “ignorance” does not (in most cases) hamper our education, quality of life or appreciation of science, it does however mean that most reasonable persons are ignorant in matters of pharmacology, virology, immunology and other requirements of science and medicine. In the Treatment Action Campaign, we describe this as scientific illiteracy. It is this lack of knowledge by most reasonable people, particular poor black people that Matthias Rath has cultivated to peddle his vitamins. 63. All societies have quacks, some benign and some malign. These societal issues of denial and vulnerability are legitimised and exacerbated when the country's President and Health Minister who have denied that HIV exists, proactively undermine the science behind HIV/AIDS, its prevention and treatment. It is not the existence of quacks like Matthias Rath alone (who will always be with us) that has endangered the lives of millions of people living with HIV, it is the deadly combination of state-sponsored denialism with his quackery (and that of his cohorts) that has cost countless lives.

AIDS denialism

64. Notwithstanding that the evidence supporting the fact that HIV causes AIDS is overwhelming and beyond all dispute, there exists a committed and diverse group of people who deny this. This is commonly referred to as AIDS denialism, which I should explain briefly.

65. AIDS denialism is an umbrella term that to me describes many different variants of common themes. However, what seems to unite all AIDS denialists is a belief that the science on HIV/AIDS that is generally agreed upon worldwide is wrong and that AIDS deaths are in fact attributable to malnutrition, narcotics and even ARVs themselves. One particular aspect of AIDS denialism which I find hard to understand, and particularly irresponsible, is the denialists' refusal to weigh up the relative risks and benefits in relation to ARV treatment and their insistence that once toxicity can be shown for an ARV drug it should not be used in any context.

66. AIDS denialists repeat seemingly scientific arguments to support their position. Their objective is to create the impression – to those of us who are not scientists ourselves and the vast majority of us who remain scientifically illiterate – that there is a genuine, complicated scientific debate to be had and that therefore their views should be taken as seriously as the views of actual scientists. The website www.aidstruth.org, set up by a number of AIDS scientists in order to debunk the myths created by AIDS denialists, explains this as follows:

For many years now, AIDS denialists have been unsuccessful in persuading credible peer-reviewed journals to accept their views on HIV/AIDS, because of their scientific implausibility and factual inaccuracies. That failure does not entitle those who disagree with the scientific consensus on a life-and-death public health issue to then attempt to confuse the general public by creating the impression that scientific controversy exists when it does not.

67. AIDS denialists also like to give the impression that they are worthy "dissidents" who are being unfairly forced from the debate by mainstream science. In particular, AIDS denialists like to portray the mainstream view as being the result of there being an all- pervasive "pharmaceutical cartel" that means that doctors and scientists simply espouse the views that the pharmaceutical industry would have them believe. They seem to believe that AIDS science cannot be believed as it has been corrupted by the pharmaceutical industry. 68. While I completely disagree with a number of the ways in which the pharmaceutical industry operates – and, indeed, I have through the TAC sought on numerous occasions, by litigation and other means, to challenge and change these unethical practices – it does not follow that the entire industry is corrupt, nor that any scientific study that has been funded in part by it simply cannot be believed. Moreover, and perhaps more importantly, I consider it to be an insult to the thousands of scientists, doctors, nurses and others working in and for the treatment and prevention of HIV/AIDS to suggest that they are corrupt and have had complete disregard to the lives of millions for the sake of pursuing a corrupt pharmaceutical industry's agenda.

69. Although the beliefs of the AIDS denialists can easily be discredited by scientists and doctors, for those who do not understand science they can be extremely persuasive. This is particularly so for those who would far rather believe that AIDS does not exist, or can be cured, than accept that it is a lifelong incurable disease.

HIV/AIDS policy in South Africa prior to 1998

70. The South African government policy on HIV/AIDS is marked by four phases. In the first phase, the apartheid government’s policy of blame and denial resisted by gay organisations and the democratic movement aligned with the ANC 1982-1990 dominated public discourse. Second, the transition phase (1992 – 1997) combined contradictory elements such as the development (1992) and adoption (August 1994) of a National AIDS Plan considered globally as a model HIV/AIDS plan and issues such as the Virodene scandal. The third phase of government policy was the period of President Mbeki’s AIDS denialism (1999 to 2006). Last, the current phase marked by the end of President Mbeki’s hold over the ANC, a new National Strategic Plan, greater co-operation with government but significant challenges that remain.

Government policies from 1982 to 1994

71. Between 1982 when the first gay man in South Africa was diagnosed and 1992 when the ANC secured a commitment from the apartheid government to address the HIV epidemic through a non-partisan, non-discriminatory National AIDS Plan – the apartheid government policy was one of blame and contradiction. A range of exclusionary measures such as testing without consent, pre-employment HIV testing, scare tactics and the exclusion from employment in the public service constituted stated and unstated government policy. For the apartheid government, the epidemic affected two dispensable groups of people gay men and black people.

72. The late Dr. Ivan Toms (anti-apartheid activist and later the head of the City of Cape Town Health Department) described the epidemic in the following terms in 1990.

“With a government that lacks political credibility among its black population, grassroots organizations in South Africa have taken the lead in facing the mounting threat of AIDS. Although no comprehensive data on rate of HIV infection in South Africa exists, one study suggests that the rate of infection is doubling every 8.5 months. Initially a disease among white male gay community, HIV has now begun to spread among the black heterosexual population. One estimate indicates that the number of HIV-positive blacks ranges somewhere between 1/4 and 1/2 million people. Some believe that the current massive tuberculosis epidemic currently affecting the black population is related to the AIDS epidemic. What little the government has done to combat AIDS has been ineffective. The gay community has been shunned. And as AIDS has spread through the black community, the government has done little more than dispense free condoms through family planning clinics. But these clinics are distrusted by blacks, since the government's family planning program has attempted to limit the growth of the black population while encouraging the growth of the white population. Only the community- based health sector possess the political credibility necessary to lead the fight against AIDS. The National Progressive Primary Health Care Network has begun devising an AIDS prevention strategy. Regional AIDS committees have begun disseminating information and training community health workers. The author notes that a determined campaign will be needed to end the association of condoms with the government's racist family planning policy. Although South Africa currently faces political turmoil, the author fears that AIDS could turn out to be the bigger threat.(See Prog Rep Health Dev South Afr. 1990 Fall-Winter:13-6).

72.1 In 1991, under pressure from the National Union of Mineworkers and its counsel then Advocate Edwin Cameron, HIV testing was dropped from immigration requirements. And in 1992 a free national AIDS helpline was introduced and the Medicines Research Council ("MRC") launched its national AIDS research programme.

72.2 In Soweto during October 1992, the ANC took the initiative to call a National AIDS Convention of South Africa ("NACOSA") composed of all political parties and government. NACOSA was opened by President Nelson Mandela and its efforts led by Dr Nkosazana Dlamini-Zuma with the assistance of the WHO. Together with hundreds of other activists, experts, policy-makers, scientists, doctors and lawyers, we drafted South Africa’ first National AIDS Plan.

72.3 Following the elections of 1994, a Government of National Unity (led by the ANC, but including amongst others the National Party and the Inkatha Freedom Party) adopted the National AIDS Plan. The 1994 National AIDS Plan was a progressive AIDS policy framework for the government to work with, and included provision for prevention, treatment of opportunistic diseases (ARVs were priced beyond reach), care, support but it was never properly implemented by the government.

72.4 Dr. Nkosazana Dlamini-Zuma became the national health minister and introduced dramatic and progressive health reform measures. This was one of the most exciting periods in South Africa. She also appointed Dr Quarraisha Abdool-Karim as the National AIDS Director in the Department of Health. In 1995 and 1996, the AIDS Law Project was contracted by the Department of Health to act as its advisor for the implementation of the human rights components of the National AIDS Plan. Mark Heywood and I regularly met Dr Abdool-Karim and occasionally, the then Director-General of Health Dr. Olive Shisana.

The Sarafina II and Virodene scandals

73. In 1996, there was a public outcry in relation to a play called Sarafina II. In summary, the then Health Minister (Dlamini-Zuma) improperly allocated European Union funding to a play that was supposedly promoting AIDS awareness, but which was widely criticised as being ineffective and hugely expensive. In my capacity as head of the AIDS Law Project, I had privately advised the Department against allocating the money to Sarafina II but when the decision was made public, I had no hesitation in pointing out that it was wrong. This began the souring of relations with the Health Ministry on the issues of HIV/AIDS.

73.1 More seriously, the government – and in particular, the then Deputy President Thabo Mbeki – became embroiled in a scandal regarding a solution called Virodene. The facts contained can be verified in the work of investigative journalist Dr James Myburgh on the news site politicsweb.co.za

74. In early 1997, two scientists at the University of Pretoria (the Vissers) told the Health Minister about an unofficial clinical trial they were conducting on AIDS patients which showed that a solution that they called Virodene was an effective antiviral medication.

75. However, the Vissers had been turned down for a license by the Medicines Control Council ("MCC"), which said that the experimental drug was ineffective and, indeed, potentially harmful.

76. Notwithstanding this, the Vissers and a group of their patients were invited to speak to the Cabinet. One patient reportedly claimed that on Virodene he had gained twenty-two pounds in three weeks, and that boils on his body had vanished. President Mandela's then Cabinet secretary, Jakes Gerwel, was later quoted as saying as follows:

It was like a church confessional. The patients said they were dying, they got this treatment, and then they were saved! The thing I will always remember is the pride in South African scientists.

77. The cabinet reportedly gave the Vissers a standing ovation and decided to help them to win approval for their clinical trial and to "support the Virodene research up to the completion of the MCC process". In the issue of the ANC magazine, Mayibuye, Deputy President Mbeki wrote that it was a "privilege" to hear the "seeming very encouraging results". Whereas ARV therapy then cost more than $1,200 a month, Virodene cost only $6. Deputy President Mbeki was particularly pleased that South Africa would be able to bypass the Western pharmaceutical industry

78. The discovery of Virodene was widely reported in the South African press and I saw the headlines on my way home from work one day. 'South African Researchers Find a Cure for AIDS for Fifty Rand a Month,' I was overjoyed. But I then read the article in more detail and my heart sank. It was clear to me that Virodene's makers had tested the drug on humans without demonstrating its safety. 79. The AIDS Law Project and the AIDS Consortium were inundated with calls by people living with HIV/AIDS who wanted access to Virodene and health workers who were confused.

80. The MCC turned down subsequent applications for registration of Virodene, which the Vissers, perhaps unsurprisingly, attributed to South Africa's "AIDS research establishment" being beholden to the Western pharmaceutical industry. Deputy President Mbeki seemed very sympathetic to this argument and accused the MCC of denying AIDS patients the "possibility of mercy treatment".

81. Virodene was eventually tested outside of South Africa – with financial support from the ANC – but no evidence of its effectiveness has ever been published. In fact, the drug's main ingredient, dimethylformamide, was an industrial solvent that caused severe liver damage.

82. As a result of the Virodene fiasco, Deputy President Mbeki was subjected to widespread criticism in the South African media (the Sunday Times of Johannesburg said that the Cabinet's "combined technical knowledge of the HIV virus would fit on the back of a postcard" Deputy President Mbeki refused to admit his error, and he and other ANC officials called the criticism racist.

83. I was dismayed by the Virodene incident, but I remained and continue to be an ANC member. My view at the time was that, although Deputy President Mbeki had made a serious mistake, at least this was an attempt to find a solution on the established basis that HIV causes AIDS. Looking back now, however, I think that the Virodene incident was influential in forming the nature of the AIDS debate going forwards and that the meetings with the Vissers were the starting point for Thabo Mbeki's AIDS denialism and his conspiracy theories regarding the Western / 'colonialist' pharmaceutical industry. It also led to the government clamping down on the independence of the MCC, which was ultimately under the control of the Health Minister.

Events leading up to the formation of the TAC

84. In October, 1997, I visited my friend Edwin Cameron at home. Edwin had fallen dangerously ill with full-blown AIDS and had a severe lung infection. Three weeks later, he began HAART. The drugs, which had just become available in South African pharmacies, cost him a third of his salary as a High Court judge. They had an immediate effect, though, and by December of that year he was able to hike up Table Mountain. I knew that the only reason Edwin was alive was something very artificial — his capacity to afford ARV drugs.

85. In 1998, I fell ill. I developed oral and later systemic thrush a fungal infection of the mouth and oesophagus, which made it extremely difficult for me to swallow. I believed that I would soon die. My doctor told me that an expensive drug called fluconazole could treat this opportunistic infection. I therefore spent what money I had, and a number of my friends helped to cover the rest. The drug, manufactured by Pfizer, cost ZAR350.00 per 200 mg capsule. In countries where generic versions of the drug were available, I learned that the drug cost only ZAR14.00 per capsule. 86. In 1994, the definitive results of a randomised placebo-controlled clinical trial conducted in the USA and France known as PACTG076 demonstrated that zidovudine reduced mother-to-child transmission by two-thirds. This immediately became the standard of care for women in most developed countries (See McIntyre J. HIV in Pregnancy: A Review UNAIDS/WHO: 1998)

87. In 1998, a randomised and controlled clinical trial in Bangkok Thailand showed that a shorter course of zidovudine could also significantly reduce mother-to-child HIV transmission. This was more affordable and feasible in resource-constrained health- settings. (See McIntyre J. HIV in Pregnancy: A Review UNAIDS/WHO: 1998)

88. A number of ARV pilot sites to prevent mother-to-child HIV transmission were set up in South Africa. However, these projects were very short-lived, and on 09 October 1998 Health Minister Dlamini-Zuma announced that she and the nine provincial Health Ministers ("MECs") would be suspending them and instead concentrating on "prevention" of HIV/AIDS. When it was pointed out to the Health Minister that MTCTP is, of course, a form of prevention, she responded that the programmes were unaffordable. The struggle for the implementation of a programme to prevent mother-to-child HIV transmission (PMTCT) was to become one of the most hard-fought battles of the Treatment Action Campaign.

89. Finally in this regard, in November 1998, another close friend of mine, a well-known gay- rights activist called Simon Nkoli also became seriously ill. However, he could not afford fluconazole and he died. Speaking at Nkoli's memorial service, in December 1998, I announced the formation of the TAC.

90. On 10 December 1998, a group of about 10 people began a fast on the steps of St. George’s Cathedral Cape Town to form the Treatment Action Campaign with the demands for a PMTCT programme, treatment of opportunistic infections and a reduction in the prices of ARV medicines.

The Treatment Action Campaign

Background

91. The TAC is an independent non-profit association of organisations, networks and individuals representing all people in South Africa. The TAC has over 16,000 members.

92. The principal objectives of the TAC are set out at section 4 of its Constitution and include campaigning for access to affordable treatment for all people with HIV/AIDS and supporting campaigns for the prevention and elimination of all new HIV infections.

93. The TAC endeavours to advance its objectives by means of litigation, lobbying, advocacy and other forms of social mobilisation, especially against any barriers that limit access to treatment for HIV/AIDS in the private and public sector.

94. I have read the witness statement of my colleague, Nathan Geffen, in this case and I agree with and endorse what he says about the nature of the TAC. Funding

95. One point that I should address in this statement, however, is the funding of the TAC (although I understand that Nathan Geffen is doing this briefly as well).

96. Matthias Rath often alleges that the TAC is funded by the pharmaceutical industry and therefore is part of some kind of pharmaceutical industry conspiracy to distribute ARVs. This is wholly untrue, and indeed I find it somewhat ironic since Matthias Rath is a part of the pharmaceutical industry himself, and extremely offensive.

97. From its formation in 1998, the TAC has not accepted - and has consistently made it clear to the world at large that it does not accept - funding from pharmaceutical companies. This policy was formally declared and adopted at the TAC's national congress in March 2001 and forms part of the TAC’s constitution. The relevant clause (2.2) of the Constitution states clearly that "The TAC will remain independent of government and the pharmaceutical industry”. Neither the TAC nor I personally have ever knowingly accepted funding from a pharmaceutical corporation or its agents, and nor would we do so in the future.

98. In fact, the TAC ultimately had to bring libel proceedings against Matthias Rath in order to stop him alleging that we are, in effect, an unscrupulous organisation which covers up its real motive, namely to promote the interests of pharmaceutical companies.

99. I refer at pages [ ] to [ ] of exhibit "A[ ]A1" to the judgment of the High Court of South Africa in our libel action against Matthias Rath dated 3 March 2006. At page 11 of that judgment, the Court said as follows in relation to the damage that such allegations cause:

[I]t is noted that the respondents [Matthias Rath, the Rath Foundations and the Traditional Healers Organisation] do not deny certain specific allegations made by Achmat in this regard. Achmat alleges that the statements are intended to damage the reputation of the TAC and to lower the TAC in the esteem of people who read them. He says that the statements have that effect and it damages the ability of the TAC to carry on its activities and further its aims. Furthermore, the TAC’s ability to carry out its daily public health information work in vulnerable communities across the country is undermined. Similarly, broader public interest work done by it to ensure quality and affordable health for all people is compromised. There is also the possibility of respondents’ statements being harmful to the reputations of members of TAC staff in relation to their future possible careers. None of this is denied by the respondents.

100. The Court also found that there is no proof behind Matthias Rath's allegations (at pages 11-12):

The respondents’ allegations with regard to the pharmaceutical industry and the TAC are premised upon conjecture and inferences and, it seems, are underpinned by a conspiracy involving several players. It is an unlikely scenario and no evidence has been disclosed which supports the respondents’ position on the TAC’s funding. The TAC, on the other hand, has made full disclosure of its income and their source. Moreover, several local and international deponents have confirmed the TAC’s policy and practices in respect of its finances. The respondents’ allegations are not supported on the available evidence and the contrary appears to be more likely.

101. The Court therefore concluded as follows (at page 14):

The evidence shows that as a matter of deliberate policy the applicant has not received money from drug companies either directly or indirectly and it has implemented mechanisms to preclude any such eventuality.

102. Accordingly, the Court ordered that Matthias Rath be interdicted "from publishing any statement which alleges that:

1.1 [The TAC] is a front for pharmaceutical companies or the pharmaceutical industry, or the “Trojan horse’ of that industry, or the ‘running dog’ of that industry;

1.2 [The TAC] is funded by pharmaceutical companies or the pharmaceutical industry;

1.3 [The TAC] receives funds from pharmaceutical front organisations in return for promoting antiretroviral drugs;

1.4 [The TAC] targets poor communities as a market for the drug industry in order to promote the interests of pharmaceutical companies."

103. As an aside, and as I will explain below, a number of statements made by Anthony Brink in the ICC Complaint would have breached this interdict had they been made by Matthias Rath himself. Nevertheless, Matthias Rath continues to endorse the ICC Complaint.

Activities and strategy

104. For many years TAC has campaigned for an integrated national HIV prevention, treatment, care and support plan.

105. The TAC has also consistently campaigned for access to affordable and quality treatment for all people with HIV/AIDS in South Africa. In this work the TAC has challenged both government and the private sector, including pharmaceutical corporations, to take action to make information about HIV/AIDS treatment more widely available, and to increase the availability and affordability of HIV/AIDS treatment.

106. TAC furthers its objectives in numerous ways, including the following:

106.1 TAC’s internal education on science, law, medicine, economics and community organising is necessary to reach its objectives. The organisation has a very strong Policy, Communications and Research Department. Until recently, this department was directed by Nathan Geffen. TAC leaders and members are encouraged to always rely on evidence, fact and reasonable argument.

106.2 The Treatment Literacy Programme of TAC simplifies science and medicine for any person to understand. Personally, I understood the need for education and treatment literacy because I knew very little about the treatment of HIV until 1997, in addition, the lack of scientific knowledge in all our communities requires a profound shift in understanding. The Treatment Literacy Programme was started in 1999/2000 by Dr. Hermann Reuter and Ms. Sipho Mthathi with the technical support of organisations such as Gay Men’s Health Crisis, Treatment Action Group and Project Inform. Over the last decade, TAC has developed a programme that uses songs, art, workshops, story-telling, fact-sheets, detailed work-books (“In Our Lives Series”), videos and posters as a coherent set of tools. With this work, we reach hundreds of thousands of people annually. Today, TAC supports more than 300 people with learnerships to educate themselves and provide prevention and treatment literacy to people in clinics, schools and communities.

106.3 TAC also advocates and lobbies for policy change on health, gender-based violence, affordable medicines and vaccine. Advocacy and activism has seen TAC write letters; organise petitions, prayer services, pickets and marches. Over the last decade, the organisation has made numerous submissions to Parliament both independently and with its sister organisation, the AIDS Law Project. Today, TAC members serve on all key technical committees of the South African National AIDS Council. The organisation is also represented at plenary level by its general-secretary Ms Vuyiseka Dubula and Johanna Ncala who directs the Treatment Literacy Programme.

106.4 Litigation is an important tool in the work of the Treatment Action Campaign. We always try to use it as a last resort. To date TAC has been involved in three matters against the pharmaceutical industry; four matters against the Minister of Health and two against the Minister of Correctional Services. In addition, at community level TAC has supported families of our members who have been raped and murdered to access justice. TAC has also supported other litigation work of the AIDS Law Project that combats discrimination against people living with HIV/AIDS.

107. TAC is often criticised for its robust campaigning and for its perceived emphasis on ARVs. First, urgency drives all our work because lives are at stake. Because of this, TAC will always try to avoid conflict to expedite co-operation and progress. Regrettably, the AIDS denialism of President Mbeki and the Minister of Health prevented co-operation. We also stand on the principle that our rights are not favours or privileges and that the state has a duty to respect, protect, promote and fulfil its constitutional obligations. Second, the so-called over-emphasis on ARVs ignores TAC’s work on prevention, opportunistic infections, health systems strengthening, gender-based violence, social security and many other issues.

Refusing access to ARVs

108. From early 1997, I started getting a range of infections including bacterial lung infections, fungal infections, daily sinus headaches and other illnesses. I had made my HIV positive status public in about August 1997. At the end of 1998, my doctor recommended that I start HAART. I could not afford it and Jack Lewis, my first long-term boy-friend, best friend and closest in familial terms called a number of friends to ensure that I could have access.

109. As I explained at paragraphs 43 to 46 above, I had seen at close hand the difference that ARVs could make to people living with HIV and the fact that only those with money could afford to make that difference. With the right medication, HIV/AIDS is like diabetes in that it can effectively be managed and I thought that the only reason we did not have that medication in South Africa at that time is because of the inequality between rich and poor. I reasoned that if my sisters or brothers were in the same predicament, they would die without medicine. At that stage it was unknown to me but my cousin Farieda Abrahams had AIDS. She would die at the end of 2000 without access to ARVs. On the basis of conscience, I refused to take ARVs as a protest against drug company profiteering. Because I knew my friends would oppose my decision, I announced it publicly in February 1999 at an HIV workshop. It was reported in the press. From then on, despite bouts of minor and serious illnesses, until 05 September 2003, I refused to take ARVs until they were available to all. I never knew that in the end, this stand would be against government because the pharmaceutical industry was forced to lower prices but Mbeki and Tshabalala-Msimang’s denial allowed hundreds of thousands of people to die without ARV access.

110. At times I was scared. Often government officials, AIDS denialists, party hacks and others would publicly and privately state that I was taking ARVs in secret. Or, they would argue that I would not take the medicines I encouraged black people to use with the intention of poisoning them. These lies hurt but they were not as hurtful as the fact that a government that many gave their lives for in the struggle for freedom deliberately allowed its people to die, denying their illness a name and refusing them access to life-saving medications.

Campaign regarding the affordability of AZT

111. When we first started the TAC and when I decided that I would not take ARVs until they were available to all under the South African public healthcare system,] the target of the campaign to make ARVs available to all was the pharmaceutical industry.

112. I was still (and still am) a member of the ANC and I was realistic enough to understand that the government could not possibly subsidise ARV treatment until drug companies agreed to drop their prices or their patents in South Africa. In light of the many issues our country was facing, we genuinely did not want to burden our government with a bill that it could not afford.

113. The TAC's first major campaign focused on MTCTP. By 1999, approximately 40,000 babies were being born each year to HIV positive mothers in South Africa but a short course of AZT given to infected pregnant women would cut by half the likelihood that the newborn baby would inherit the virus. However, the cost of the AZT regimen — ZAR350.00 or around $50— was prohibitive for most people in South Africa who needed it. By highlighting the needless deaths of innocent children, our campaign aimed to shame AZT's manufacturer, GlaxoSmithKline, into lowering the price of the drug. 114. In January 1999, the Medical Research Council released a costing study by Professor David Wilkinson, Ms Katherine Floyd and Dr. Charles F. Gilks on preventing mother-to- child HIV transmission that was summarised as follows:

114.1 An estimated 64 398 paediatric HIV infections occurred from mother-to-child transmission in South Africa in 1997. This represents 11% of the estimated global total of new infections.

114.2 This study suggests that approximately 37% infections from mother to child might be prevented through a national programme which includes short course zidovudine, infant milk formula and counselling

114.3 The estimated total cost of the national programme would be ZARR160.54 million and is less than 1% of the national health budget or R3.73 per capita

114.4 Therefore the study concludes that a national programme to reduce mother-to-child transmission of HIV infection in SA would be an affordable, cost-effective and potentially cost-saving public health intervention

114.5 The study concluded that a national programme to reduce mother-to-child transmission of HIV infection in SA would be an affordable, cost-effective and potentially cost-saving public health intervention.

115. The ANC appeared to fully support our campaign. I recall the then Health Minister Dlamini-Zuma saying to me that if we wanted to fight for affordable treatment, then she would be with us all the way. Indeed, on 30th Aprill 1999 the TAC and the Health Minister issued a joint statement calling upon business, labour, and religious organisations to pressure GlaxoSmithKline to lower their prices. I also knew that Thabo Mbeki – who was elected as President in 1999 - had accused the pharmaceutical companies of profiteering, so was likely to be broadly supportive of our campaign.

116. As I saw it at the time, therefore, the President, the Health Minister, the ANC and the TAC were all fighting on the same side. In March 1999, the TAC held rallies across South Africa calling for MTCTP and picketed GlaxoSmithKline's South African headquarters. Finally, in March 2000, GlaxoSmithKline announced that it would halve the price of AZT in South Africa.

The Medicines Act

117. In or around 1997 / 1998 the South African government amended the Medicines and Related Substances Control Act (the "Medicines Act") to allow for the import and production of cheaper generic drugs into South Africa, irrespective of the patents of the major pharmaceutical companies. The bill had been passed but had never come into effect due to lobbying by the pharmaceutical industry and the United States government (which placed South Africa on its sanctions watch list – something it took the US government [36] years to do as a result of apartheid).

118. In February 1998 an association of pharmaceutical companies, the Pharmaceuticals Manufacturers Association ("PMA") brought a legal action in the South African courts to stop the bill being brought into effect so as to stop South Africa from importing and manufacturing generic drugs, including generic (so cheaper) ARVs.

119. The TAC campaigned in support of the Medicines Act and in March 2001 joined the government's litigation with the PMA as amicus curiae. Together with MSF, Cosatu, the SACC, ACT-UP, OXFAM, HealthGAP and many other organisations locally and globally we organised protests against the drug companies.

120. Thousands of protesters converged on US embassies and consulates in South Africa and hundreds across the world. In the US ACT-UP Philadelphia and New York interrupted speeches by Al Gore (who was then Vice-President to President Clinton, and who had lobbied the South African government for the repeal of the Medicines Act on the PMA's behalf) in the United States as he was running or going to run for President.

121. Eventually the Clinton administration removed South Africa from its sanctions watch list and ended its campaign against the Medicines Act. Subsequently, in April 2001, the Government settled the case against the PMA and South Africa finally was entitled to import and produce cheap generic ARVs.

President Mbeki's AIDS denialism

122. In this section, I will use a range of sources that include the work of Mark Heywood Price of Denial. Development Update 5(3). Interfund (2004; Nathan Geffen Echoes of Lysenko: State-Sponsored Pseudo-Science in South Africa UCT (2006); Professor Nicoli Nattrass in AIDS, Science and Governance: The Battle Over Antiretroviral Therapy in Post- Apartheid South Africa. UCT (2006); the memoir of former ANC MP, Andrew Feinstein After The Party: A Personal and Political Journey inside the ANC (2007) and Judge Edwin Cameron’s memoir Witness to AIDS (2005). All the key facts I rely on below are also within my personal knowledge, therefore I will not burden the statement with extracts from the sources or references. These can be made available to the Court.

123. President Mbeki was one of the strongest advocates in the ANC for a rational, human rights-based approach to HIV//AIDS. I remember his interventions publicly and privately on many occasions since 1990 when he returned to the country. As Deputy-President in the Cabinet of President Mandela, he often appeared to take HIV more seriously than the President.

124. In August/September 1999, the unthinkable happened, I learnt from researchers at Parliament and a friend who worked in the President’s office that he began to question the very science of AIDS. When this eventually leaked out late in 1999 and early 2000 it caused local and global consternation. Pullitzer prize-winning journalist Mark Schoofs was the first writer to thoroughly document the President’s denialism in the article: Flirting With Pseudoscience: South Africa's President May Become the First World Leader to Believe that HIV Is Not the Cause of AIDS (Village Voice 18-21 March 2000).

125. As a result of this attitude from our President and Health Minister, people living HIV/AIDS continued to be denied access to treatment and the culture of denial and confusion surrounding HIV/AIDS in South Africa was exacerbated and allowed to flourish. 126. As I explained at paragraph 72 above, it was widely thought that President Mbeki's first introduction to AIDS denialism occurred during the Virodene scandal. In March 1999 there was a debate between Anthony Brink and the then president of the Southern African HIV/AIDS Clinicians Society, Des Martin, in a South African newspaper, the Citizen.

127. Anthony Brink had written an article entitled "AZT: A Medicine from Hell" defending the Health Minister's decision not to make AZT available for MTCTP and asserted that it was so toxic that prescribing it "was akin to napalm-bombing a school to kill some roof-rats", while Des Martin pointed out that AZT had been shown to cut mother-to-child transmission of HIV by 67% and that, while its toxicity was a real issue requiring constant monitoring and vigilance by physicians, it was in fact "a medicine from heaven".

128. It has been claimed by Anthony Brink that he told President Mbeki about this exchange . Whether or not this is true, on 28 October 1999 President Mbeki stated as follows to the National Council of Provinces (I refer to his address at pages [ ] to [ ] of exhibit "A[ ]A1"):

Concerned to respond appropriately to this threat [the HIV/AIDS epidemic], many in our country have called on the Government to make the drug AZT available in our public health system.

Two matters in this regard have been brought to our attention. One of these is that there are legal cases pending in this country, the United Kingdom and the United States against AZT on the basis that this drug is harmful to health.

There also exists a large volume of scientific literature alleging that, among other things, the toxicity of this drug is such that it is in fact a danger to health.

These are matters of great concern to the Government as it would be irresponsible for us not to head the dire warnings which medical researchers have been making.

I have therefore asked the Minister of Health, as a matter of urgency, to go into all these matters so that, to the extent that is possible, we ourselves, including our country's medical authorities, are certain of where the truth lies.

To understand this matter better, I would urge the Honourable Members of the National Council to access the huge volume of literature on this matter available on the Internet, so that all of us can approach this issue from the same base of information."

129. In light of this, President Mbeki set up a "Presidential AIDS Advisory Panel" under the direction of his Health Minister Dr Manto Tshabalala-Msimang to find out "the truth" about HIV/AIDS. 130. President Mbeki also wrote to then UN Secretary General Kofi Annan, then President Bill Clinton and then Prime Minister Tony Blair, in April 2000. In this letter, he stated as follows [ref]:

Not long ago, in our own country, people were killed, tortured and imprisoned... because the established authority believed that their views were dangerous . . We are now being asked to do precisely the same thing that the racist apartheid tyranny we opposed did, because, it is said, there exists a scientific view that is supported by the majority against which dissent is prohibited. [check]

131. In the meantime, President Mbeki continued to make public statements suggesting that he was an AIDS denialist. For example, in September 2000 President Mbeki told parliament that, although government policy was based on the "thesis" that HIV causes AIDS, "a virus cannot cause a syndrome". He also warned parliamentary members against taking ARVs.

132. In October 2000, President Mbeki told the ANC caucus in Parliament that the CIA (working with drug companies) was part of a conspiracy to promote the view that HIV causes AIDS and that Western interests are seeking to discredit him.

133. President Mbeki sarcastically said as follows, which I consider gives a good indication of his position regarding HIV/AIDS:

Yes, we are sex-crazy! Yes, we are diseased! Yes, we spread the deadly H.I.V. virus through our uncontrolled heterosexual sex! In this regard, yes, we are different from the U.S. and Western Europe! Yes, we, the men, abuse woman and the girl-child with gay abandon! Yes, among us rape is endemic because of our culture! Yes, we do believe that sleeping with young virgins will cure us of AIDS! Yes, as a result of all this, we are threatened with destruction by the H.I.V./AIDS pandemic! Yes, what we need, and cannot afford because we are poor, are condoms and antiretroviral drugs! Help!

134. When I read this, in 2001 I was devastated. It was clear that our President, in whom we had placed so much trust, was taking a ridiculous and wilfully irresponsible position on the biggest question that the new South Africa was facing.

135. In light of the controversy and international opprobrium caused by President Mbeki's views, and by his conduct at the 2000 AIDS Conference in Durban earlier that year (see below), President Mbeki said that he was withdrawing from the public debate on AIDS in October 2000 . Despite this, President Mbeki's AIDS denialism continues to haunt the policy environment through his silence, which in itself speaks volumes (not least because of ongoing claims by AIDS denialists associated with him that he has never in fact changed his mind), and through ongoing links between AIDS denialists and his government – and, in particular, the Health-Minister Dr Manto Tshabalala-Msimang. 136. The apparent AIDS denialism of President Mbeki has caused two major problems in South Africa. First, it has given credibility and legitimacy to AIDS denialists. Second, it has undermined AIDS prevention and treatment interventions involving the use of ARVs.

137. As head of state, President Mbeki has a special responsibility to the people of South Africa to ensure that those people receive the best possible information and education regarding their health. He has failed in this, with disastrous results.

138. On 10 November 2004, I delivered the John Foster Galway Lecture at the University of London. I stated the following:

There has been a tendency towards over-centralisation rather than coordination of policy-making in President Mbeki’s office. One of the most damaging interventions in this vein was the creation of the Presidential International Advisory Committee on AIDS. The error, deceit and disingenuity that emanates from government from this intervention poses achallenge to civil society, democracy and our institutions of governance. One day a tragic history will be written. Now we are still living it.

President Mbeki has never had the courage to state in open and public forums that HIV does not cause AIDS. He has done so in private to scientists, to the ANC NEC, to the ANC parliamentary caucus and to anyone he assumed to be an ally. But, this lack in public candour resulted in policy confusion, denial and unnecessary conflict between civil society and government. And, it has damaged the ANC. Bodies such as the Medicines Control Council, the Medical Research Council, Stats SA, the Human Rights Commission, Parliament and other agencies were pressured to adopt an HIV denialist agenda

139. The disastrous results of Mbeki’s denialism can be summarised as a crisis of governance manifested in the following ways:

139.1 More than 1.5 million people have died of HIV-related illnesses.

139.2 Between the end of 2000 and the end of 2003, approximately 600 000 people died prematurely and needlessly as a direct result of President Mbeki’s refusal (supported by the Health Minister Manto Tshabalala-Msimang. Many of these deaths could have been prevented.

139.3 The erosion of the separation of powers between the Executive, Parliament, independent statutory bodies and Chapter Nine institutions such as the Human Rights Commision and the Public Protector.

139.4 Public confusion that will remain for a long time and continue to undermine prevention, treatment and care efforts.

139.5

The 2000 UNAIDS Conference in Durban 140. On 9 July 2000 President Mbeki opened the United Nations' international AIDS conference in Durban, South Africa. Many people had expected him to use the opportunity to clarify his position on HIV/AIDS and publicly to reject AIDS denialism]. Instead, however, President Mbeki spoke about poverty being "the world's biggest killer" He was also reported to have granted a private audience to an American AIDS denialist called Christine Maggiore, who campaigns against MTCTP and refused to take ARVs herself (and whose 3 year old daughter, who was never tested or treated for HIV, died of pneumonia as a result).

141. In response to President Mbeki's denialism, over 5,000 scientists had put their names to what became known as "the Durban Declaration" (subsequently published in Nature magazine) which set out the established scientific thinking on HIV/AIDS – including that the evidence supporting the fact that HIV causes AIDS was "clear-cut, exhaustive and unambiguous, meeting the highest standards of science" . President Mbeki's spokesman at the time was quoted as saying that if the declaration was given to the President or the government, "it would find its comfortable place among the dustbins of the office", while the Health Minister Dr Manto Tshabalala-Msimang said that it "smacks of elitism" ("you can’t have a certain exclusive group of people saying this is what we believe about HIV and AIDS"

At the same time, the TAC had organised a Global March For HIV Prevention and Treatment Access. More than 5000 people marched in “HIV positive” t-shirts.

The views and conduct of Health-Minister Dr Manto Tshabalala-Msimang

142. Equally concerning for those of us who were trying to ensure that people living with HIV/AIDS in South Africa received the best possible treatment were the views and conduct of the Health Minister Dr Manto Tshabalala-Msimang, who began to block efforts to make ARV treatment available in South Africa.

143. By way of example only:

143.1 In February 2000, she revealed that she had rejected two reports from the MCC which concluded that the benefits of AZT outweighed the risks .

143.2 In March 2000 she announced that Nevirapine (see further below) would not be offered in public hospitals until she had seen further reseach.

143.3 In June 2000 she rejected an offer from Boehringer Ingelheim, the pharmaceutical company manufacturing the patented version of Nevirapine, to provide the drug free of charge for a period of five years.

143.4 In August 2000 MinMEC (a committee of the Health Minister and the nine provincial MECs for Health) ignored a recommendation by the chief director of HIV/AIDS and STDs to implement MTCTP.

144. As a result of all this, the TAC's campaigns had to be two-pronged – first, against the pharmaceutical companies to enable South Africa to obtain affordable treatments for HIV/AIDS and, second, against our own government to ensure that those treatments were then made available to the people of South Africa.

Fluconazole

145. As I explained at paragraph [ ] above, when I was ill with oral thrush I took the drug fluconazole, which was made by the pharmaceutical company, Pfizer. However, I became aware that although Pfizer's patented version of the drug (Diflucan) cost [ ] per capsule a generic version was available in Thailand for as little as [ ].

146. In 2000 the TAC therefore launched what was known as the Christopher Moraka Defiance Campaign Against Unjust Trade Laws and Patent Abuse. (Christopher Moraka, who had HIV, gave evidence to the South Africa Parliamentary Portfolio Committee on Health in May 2000 while suffering from severe systemic thrush, and asked Pfizer to lower the price of drugs. On 27 July 2000 Christopher Moraka died.)

147. The TAC's campaign aimed to save lives where possible, to draw public attention to patent abuse and profiteering by drug companies and to set a moral example for the government to follow. In [ ] 2000 I flew to Thailand and purchased five thousand capsules of the generic version of fluconazole and flew it all back to South Africa. (A famous South African actor, Morne Visser, then did the same.) Although I was arrested on smuggling charges, my stunt drew widespread attention to the issues behind the campaign.

148. The TAC's campaign continued into 2001 until, eventually, in March 2001, Pfizer agreed to make fluconazole available for free in South African public health clinics.

Nevirapine

149. Nevirapine is a drug used to treat HIV and AIDS. It was registered by the MCC for use in South Africa for MTCTP in April 2001 but the South African Government continually refused to make it available in the public sector. As referred to at paragraph [ ] above, the Government's resistance was led by the Health Minister Dr Manto Tshabalala- Msimang.

150. In light of this, in August 2001 the TAC filed a motion in the High Court of Pretoria seeking an order from the court compelling the Health Minister, and the various provincial MECs for Health to make Nevirapine generally available throughout the public health service for MTCTP.

151. On 4 December 2001 the High Court of Pretoria ruled in our favour, but the Government appealed this decision to the Constitutional Court. In the meantime, the provincial governments in Kwa-Zulu Natal and Gauteng were rolling out MTCTP in defiance of the national government's policy. In fact, in some instances, doctors at clinics were even paying for the drug themselves. Dr. Andrew Grant, the acting superintendent of a hospital in KwaZulu-Natal province, wrote as follows at the time Doctors at this hospital have bought Nevirapine with their own money and are already administering it. We have seen no side effects on this regime (except extreme gratefulness).

152. Finally, on 05 July 2002, the Constitutional Court upheld the High Court's decision and iin a tightly reasoned judgment ordered the Government to provide Nevirapine for MTCTP in the public healthcare system. In Minister of Health and Others v Treatment Action Campaign and Others (1) 2002 (10) BCLR 1033 (CC) the opening paragraph of the judgment, the Court stated:

The HIV/AIDS pandemic in South Africa has been described as “an incomprehensible calamity” and “the most important challenge facing South Africa since the birth of our new democracy” and government’s fight against “this scourge” as a top priority”. It “has claimed millions of lives, inflicting pain and grief, causing fear and uncertainty, and threatening the economy”. These are not the words of alarmists but are taken from a Department of Health publication in 2000 and a ministerial foreword to an earlier departmental publication.

Nelson Mandela

153. The Constitutional Court judgment in TAC’s favour was delivered on 05 July 2002 at the same time as the International AIDS Conference in Barcelona. At around this time, former President Nelson Mandela joined the TAC's cause. Since leaving office, he had called for pregnant mothers to be given AZT and had said openly that he believed that HIV caused AIDS. Nelson Mandela has also disclosed that he had lost a niece and two sons of a nephew to AIDS.

154. I had been scheduled to travel to Barcelona to speak at the international AIDS conference in July 2002. However, I had contracted a serious lung infection so I was not able to attend. Nevertheless, I delivered my talk to the conference by video link. As I understand it, Nelson Mandela was at the Barcelona conference and decided to visit me when he returned to South Africa. He called me by phone from Barcelona to arrange the visit. He visited my home in July 2002, and tried to convince me to start taking ARVs again. He met with TAC members at my home for about two hours. Although my health was deteriorating, I refused his request to start medicines as I was determined that I would not start my treatment until such treatment was available to all people in South Africa through the public healthcare system. He agreed to carry our message on the need for a treatment plan to President Mbeki.

155. Nelson Mandela's involvement was a huge boost for the TAC. Since then, he and the Nelson Mandela Foundation have consistently included TAC and myself in his events on HIV/AIDS. More importantly, though, in December 2002 Nelson Mandela visited the Khayelitsha ARV clinic. One patient at the clinic presented him with one of the TAC's "HIV POSITIVE" t-shirts, which Nelson Mandela immediately immediately wore and allowed the world to see through pictures. This was likely to have a tremendous impact upon the stigma felt by ordinary South Africans living with HIV. 156. Six months after TAC led a civil disobedience campaign on 02 October 2003, former President Mandela selected the organisation to receive the Nelson Mandela Health and Human Rights Award. At the ceremony, his wife Ms Graca Machel stated:

My point dear friends, is that even in the best of worlds, we cannot expect to leave all to governments. The TAC's struggle grows out of the best traditions of the anti-apartheid movement. The result is an exceptionally high level of awareness and mobilization against HIV/AIDS that is helping reduce the stigma associated with the epidemic and raise the national consciousness of the fact that we are all affected by HIV/AIDS. Just as democracy gives us rights, it also gives us duties. Let us never be silent. It is our duty as citizens to talk up, demand our rights, mobilize and organise for the advancement of the greater good.

Continued denialism of President Mbeki and position of Health Minister Dr Manto Tshabalala- Msimang

157. Notwithstanding Nelson Mandela's position, and President Mbeki's declared intention to withdraw from public debate regarding HIV/AIDS, President Mbeki continued to adopt a denialist stance. By way of example, in September 2003, even though two of his spokesmen had died of AIDS he told the Washington Post as follows:

Personally, I don't know anyone who has died of AIDS. I really honestly don't.

158. Health Minister Dr Manto Tshabalala-Msimang also continued to thwart efforts to implement proper HIV/AIDS treatment. In June 2002 she blocked a grant of $72 million from the Global Fund to Kwa-Zulu Natal province for ARV treatment. She also began to associate with and endorse AIDS denialists and other quacks.

159. By way of example, she appointed the AIDS denialist Robert Giraldo (who works for the Rath Foundation) as an adviser and, in November 2002, invited him to speak to the Department of Health regarding nutrition as a solution for AIDS. In January 2003, she also invited him to address a meeting of South African Development Community Health Ministers.

160. Even though Roberto Giraldo had declared that "the transmission of AIDS from person to person is a myth" the Health Minister eagerly took up his recommendations on nutrition. She urged AIDS patients to take "garlic, lemon, olive oil, and African potatoes" to boost their immune systems. She said as follows:

These things are affordable for South Africans, not like things like antiretrovirals.

NEDLAC ARV treatment plan and the TAC's civil disobedience campaign 161. In July 2002 the TAC, together with COSATU, decided to use South Africa's tripartite bargaining institution, the National Economic Development and Labour Council (NEDLAC), which brings together government, business organisations, trade unions and community organisations to reach consensus on issues of social and economic policy, in relation to the struggle for access to ARV treatment for HIV/AIDS. We submitted a set of resolutions that led to the establishment of a special HIV/AIDS task team within NEDLAC with the objective of coming up with a "Framework Agreement for a National Treatment Plan" by December 2002 .

162. The NEDLAC plan was drafted by the end of 2002. Despite participation by the Department of Health, the Health Minister Dr Manto Tshabalala-Msimang refused to sign or endorse the agreement, saying that "policy-development on AIDS cannot be dictated by agreements we enter into with our social partners". By this stage, it was clear to me that the government had no real intention of rolling out proper treatment for HIV/AIDS in the public healthcare system and that the TAC would have to launch a campaign of civil disobedience in order to pressurise it to do so.

163. We intended the protests to be the biggest in South Africa since the days of apartheid. On 14 February 2003, between 15,000 and 20 000 people marched on parliament during President Mbeki's State of the Nation address to ask the government to sign the NEDLAC agreement on AIDS prevention and treatment.

164. We initially gave the Health Minister until the end of February 2003 to endorse the treatment plan negotiated in NEDLAC, but subsequently decided to wait until her briefing to the parliamentary Health Portfolio Committee on 18 March 2003, in the vain hope that she would finally endorse ARV treatment, before taking action. However, instead of the endorsement of ARVs we hoped for, the Health Minister praised Roberto Giraldo for a nutritional intervention supposedly conducted under the auspices of the Department of Health which, the Health Minister said, had achieved "outstanding results". She went on to stress the immune-boosting properties of food items such as olive oil and garlic, concluding her briefing with the statement that "nutrition should be the legacy because it is so critical" in the fight against the advance of HIV to AIDS . Moreover, on the same day, the South African Finance Minister dismissed claims regarding the effectiveness of ARV treatment as "a lot of voodoo" and said that Government spending money on ARVs was a "waste of very limited resources".

165. A couple of weeks before the Civil Disobedience Campaign, TAC requested a hearing from the Parliamentary Portfolio Committee on Health. I was one of the TAC members who gave evidence to the committee. We begged for its intervention to ensure that government implemented an integrated prevention and treatment plan. Our efforts were unsuccessful.

166. Reluctantly, TAC decided to launch a national civil disobedience campaign. For us civil disobedience meant recognising the legitimacy of the state, the Constitution and the laws of the country. Civil disobedience meant accepting the fullest responsibility for our actions including going to prison if necessary. 167. On 20 March 2003 around a hundred TAC campaigners, including me, campaigned near the Cape Town Central Police Station. We had bail money for everyone present, and we walked with our arms linked to the police station. I asked to see the station commander and said to him that the police either had to arrest the Minister of Health and the Minister of Trade and Industry for culpable homicide or to arrest all of us. We were formally charged with unlawful entry

168. Later in March 2003, at a health conference in Cape Town, we disrupted a speech by the Health Minister. In fact, I lost my temper with her at this meeting and insulted her personally after she had taunted me. I later apologised for the personal insult. Nevertheless, I considered that my criticism of her in terms of her criminal irresponsibility in relation to the treatment of HIV/AIDS was justified. I believe that she and President Mbeki aided and abetted by quacks such as Matthias Rath are liable for the deaths of hundreds of thousands of people in South Africa.

169. The South African Medical Association backed our campaign and, in early May, its chairman, Kgosi Letlape, announced that members working at hospitals would be wearing protest T-shirts in support of TAC's drive to make ARVs freely available in the public health sector].

170. After a month of protests, TAC leaders met Deputy President Jacob Zuma on 25th April 2003. At this meeting where I was present, it was agreed that a public sector ARV programme would be placed on the agenda of the South African National AIDS Council .based on the outcome of a costing exercise undertaken by the Treasury. This meeting was scheduled for Saturday 17 May 2003 but postponed until 14 June 2003.

171. The Minister of Health was present at the SANAC meeting with Deputy-President Jacob Zuma and a joint statement that affirmed the NEDLAC process and the finalisation of a joint Treasury and Health Department costing study on the provision of ARVs in the public sector. Yet, later it emerged that she lied to the meeting because the draft costing report was presented to her on 9th May 2003, a month before the meeting.

172. In July 2003, TAC obtained leaked copies of a presentation made by the then Director- General of Health Dr Ayanda Ntsaluba to the Minister of Health and her provincial counter-parts that demonstrated that without ARV treatment expenditure on opportunistic infections would be ZAR R6.7 billion by 2010. (See Joint Health & Treasury Technical Team – Treatment Options to Supplement Comprehensive care for HIV/AIDS in the Public Health Sector Presentation to MinMEC 9th May 2003). Life-saving ARV treatment for 50% of people who need it would be less than double amount and cost less than ZAR13 billion. The slide presentation outlined the benefits of ARV treatment as follows:

Significant reductions in AIDS mortality.

Significant extension in years of healthy life.

Significantly reduce/defer numbers of children becoming orphans.

But no compelling evidence that ARVs would reduce numbers of new infections. 173. I also had sight of the full draft report on which the slides were based. Dr. Ntsaluba’s presentation to the MinMec did not include the report’s calculation that many “deaths could be deferred until after 2010”. On the conservative assumption that ARV therapy leads to 4-5 additional years of “relatively illness-free life”, on page 42 the report estimated that by 2010:

At 20% people receiving ARV therapy, 293 000 deaths would be deferred.

At 50% people receiving ARV therapy, 733 000 deaths would be deferred.

At 100% people receiving ARV therapy, 1,7 million deaths would be deferred.

174. On the government’s own account, hundreds of thousands of lives were lost through unnecessary delay in the years before and in the period after HAART became available..

175. Finally, on 08 August 2003, the Cabinet announced that the government would roll out HAART in the public health sector. It finally seemed that people in South Africa would begin to receive proper treatment for HIV/AIDS. It was not until 18 November 2003 that the plan was finalised and not until mid-2004 that it became operational outside of the Western Cape.

My personal stand on ARVs

176. By this stage, my own health had deteriorated very significantly. I had been suffering from a recurrent lung infection through 2003 and my CD4 count was around. As a result of this, and the fact that it seemed that South Africans finally would be able to access ARV treatment, the national congress of the TAC on 03 August 2003 voted to urge me to begin taking ARVs, and I agreed to start treatment on 05 September 2005.

The Operational Plan

177. Finally, the Department of Health approved a Cabinet-approved Operational Plan for Comprehensive HIV and AIDS Care Management and Treatment for South Africa on 19 November 2003 (“the Operational Plan”). The Operational Plan includes, among other important interventions, the provision of nutritional support for people with HIV, and antiretroviral treatment for people with HIV whose disease has progressed to AIDS.

178. Although I think that the Operational Plan is flawed in a number of respects (for example, [ ]), it is a critical plan necessary for reducing mortality and morbidity due to the HIV epidemic. TAC supports its implementation through various activities including campaigns to bring down medicine prices, public information campaigns on nutrition, prevention and treatment with respect to HIV, and a community education programme that operates in six provinces.]

HIV/AIDS treatment in South Africa from November 2003 – May 2007

179. In light of the unconscionable delays preceding it, following the publication of the Operational Plan I had hoped to see HAART rolled out in the public health sector as a matter of the utmost urgency. Hundreds of thousands of people living with HIV/AIDS needed HAART in order to save their lives and they had been waiting for far too long.

180. However, the Health Minister Dr Manto Tshabalala-Msimang began a rearguard campaign to obstruct and undermine the roll out of HAART under the Operational Plan. She would come up with obstacles practically to prevent speedy roll out and increasingly aligned herself with a variety of quacks to create confusion amongst those living with HIV/AIDS and thereby sought to undermine the Operational Plan's effectiveness.

181. Almost as soon as the Operational Plan was announced, the Health Minister distanced herself from it, saying, "I am not the one making the decisions; the cabinet decides collectively". However, by virtue of being in charge of the Department of Health, the Health Minister maintained the power to delay and undermine the programme and she gave warning of this by saying that the rollout was not imminent..

182. The Health Minister dragged her feet. It took until January 2004 for the Department of Health to initiate the tender process for the drugs (and alternative medicines – see further below) for the Operational Plan and, by March 2004, it became clear that it would take the Government until at least July 2004 to obtain the drugs.

183. In light of this, the TAC held a series of public meetings and demonstrations throughout South Africa in March and April 2004 to protest against the slow pace of the HAART roll out. In fact, on 16 March 2004, we served draft legal papers on Health Minister Tshabalala-Msimang to force her to allow the provinces themselves to use interim tender procedures (which she eventually acceded to). Still though, the HAART roll-out in the public healthcare system was painfully slow (and, in fact, it did not begin in all provinces until the end of 2005).

184. In addition to this, Health Minister Dr Manto Tshabalala-Msimang continued to undermine the roll-out of HAART in South Africa by raising doubts about the efficacy and safety of ARVs and championing what can generally be described as "alternative remedies" (including the multivitamins promoted by Matthias Rath).

185. She has sought to challenge the best-practice treatment strategy (HAART) by casting it as one of several 'choices', while at the same time stressing its side effects and singing the praises of unproven nutritional interventions. For example, she has recommended a variety of specific foods - particularly lemon, garlic, olive oil, African potato and beetroot - as being especially beneficial for people living with HIV while continuing to describe ARVs as harmful. For example, in [ ], Health Minister Dr Manto Tshabalala-Msimang said as follows to [ ]:

ARVs do not cure and they have side effects. I do not know of any side effects of eating proper food.

186. There are a variety of people and organisations in South Africa offering "alternative" remedies for HIV/AIDS, many of which are endorsed or seemingly endorsed by Health Minister Dr Manto Tshabalala-Msimang. By way of example only, I am aware a herbal product called Ubhejane that was "invented" by a truck driver called Zablon Gwala who says that the recipe or his product came to him in a dream. He has said the following: Ubhejane protects the cells from any virus … I don't know how that happens I am not a scientist. But what I do know is that people who were on the edge of death go back to work. It makes them feel better, and gives them life … The people who want to take those ARVs can take them … But they don't cure anything. The side effects are like poison, and people get sicker. Ubhejane doesn't hurt anyone. And it works. I can feel it. [

187. I refer at exhibit "A[ ]A2" to a DVD of a Sky News feature regarding Ubhejane that I understand was broadcast in the UK on [ ]. It was also reported that the Health Minister Dr Manto Tshabalala-Msimang advised one care project to administer Ubhejane to people living with HIV, although it was subsequently found to have caused liver failure in patients.

188. More importantly, Dr Manto Tshabalala-Msimang has championed a woman called Tine van der Maas. I refer at exhibit "A[ ]A3" to a DVD produced by Tine van der Maas called "Power to the People". As appears from the end credits, this DVD was partly at least funded by Matthias Rath (and Anthony Brink). In this DVD, Dr Manto Tshabalala- Msimang is seen visiting Tine van der Maas using her "program of alternative remedies" on patients with HIV in KwaZulu Natal. Tine van der Maas was also sent by Dr Manto Tshabalala-Msimang to treat a popular Sowetan DJ known as Khabzela, whose funeral I later spoke at I refer at pages [ ] to [ ] to the chapters 16 to 22 inclusive of a book written by Liz McGregor "Khabzela" dealing with this and the other alternative remedies sought by him.

189. After our meeting with then Deputy-President Jacob Zuma, TAC was invited to a meeting of the South African National AIDS Council of which he was the chairperson. The Minister of Health had invited Tine van der Maas to that meeting to explain her concoctions.

Nozipho Bhengu

190. On 24 May 2001, ANC Today, the official mouth-piece of the ANC announced that Nozipho Bhengu, daughter of then ANC MP Ruth Bhengu had tested positive for HIV. (See MP Highlights the Issue of HIV/AIDS in the family ANC Today 24 May 2001)

191. Four years to the day, on 24 May 2005, TAC issued a statement on the death of Nozipho Bhengu of AIDS-related illnesses. Her story is a tragic indictment of denialism and quackery. (See TAC Statement on the death of Nozipho Bhengu – TAC e-Newsletter 24 May 2005). Hardly a couple of weeks before her death, Bhengu who was introduced to Tine van der Maas by the Health Minister gave and interview to Drum Magazine (one of the most widely circulated magazines in black communities). She said of Van der Maas’s concoction: “It works, I’m the scientific proof.”

192. The delay in the roll out of ARV treatment in the public healthcare system in South Africa from the inception of TAC in 1998 to the end of 2005 when HAART roll-out finally took off in all 9 provinces of South Africa has been the subject of much comment in the South African press. Similarly, Matthias Rath's contribution to this delay – both directly and as a result of his political influence - has been so significant and pervasive that it too has also been the subject of widespread public comment.

193. Matthias Rath fed into the denialism and confusion in South Africa regarding HIV/AIDS – in particular, regarding the appropriate treatment for it – and was supported in this by our Health Minister, and by our President through his pseudo-science and silence on quackery. By way of example of the extent to which these issues were prominent in the South African press, I refer at pages [ ] to [ ] of exhibit "A[ ]A1" to various cartoons (together with my brief explanations of what they depict where appropriate) by a cartoonist called "Zapiro" whose satirical cartoons appear in a number of major South African newspapers, including the Mail & Guardian, the Sowetan and the Sunday Times.

194. On 26 February 2006 the City Press published articles which underlined the AIDS denialism of President Thabo Mbeki. Tragically, President Mbeki was continuing to belittle HIV/AIDS related deaths to justify his personal denialist beliefs:

Asked if the government was faced with a national crisis because of the increasing number of public servants dying from the pandemic, Mbeki said no- one had raised the alarm to indicate the effects of Aids on government employees.” He said that he’d not been provided with any information indicating that public servants at different levels of government, like teachers, were dying.

195. President Mbeki’s statement followed a report by the Human Sciences Research Council (HSRC) detailing findings that a minimum of 10,000 teachers living with AIDS urgently need to be put on ARVs. The study called for swift intervention from the education department to have the teachers treated. However, Mbeki dismissed the report as highly speculative:

Nothing has been said by anybody like this thing you are indicating (the teacher’s report) – that you have got this kind of wastage as a result of Aids. I have not seen any such thing.

196. Signals such as these continued to be given to the Health Minister by the President. The apogee of her denialism came in the wake of the Toronto AIDS Conference and the Westville prison litigation.

The Toronto AIDS Conference and the Westville Prison Litigation

197. 15 000 delegates gathered for the International AIDS Conference in Toronto Canada in August 2006. TAC was represented by a strong delegation of senior leaders including Sipho Mthathi, Mark Heywood, Mandla Majola, Linda Mafu, Nathan Geffen, Nkhensani Mavasa and others, the Minister of Health opened the South African stand with garlic, lemon, olive oil and beetroot as the key focus for dealing with the epidemic. Pandemonium ensued in the national and international media.

198. Westville Correctional Centre is situated in Durban, KwaZulu-Natal, one of the regions worst affected by the HIV/AIDS epidemic in the world. Many prisoners held at Westville have HIV or AIDS, and many are dying. Fifteen prisoners and TAC represented by the AIDS Law Project took government including the Department of Health and Department of Correctional Services (DCS) to court. On 26 June 2006, Judge Pillay of the Durban High Court ordered government to:

remove the restrictions that prevent... the applicants and all other similarly situated prisoners at Westville Correctional Centre, who meet the criteria as set out in the National Department of Health's Operational Plan for Comprehensive HIV and AIDS Care, Management and Treatment for South Africa, from accessing Anti-Retroviral Treatment at an accredited public health facility.... and that [government] is ordered with immediate effect to provide anti- retroviral treatment to the applicants and all other prisoners at Westville.. at an accredited public health facility."

199. Since the judgment, one of the applicants of the case known as “MM” has died. He should have been put on treatment in 2005 when his CD4 count was 86. Instead he was only put on treatment in July, three weeks before his death - far, far too late. More than 110 other prisoners died of AIDS in 2005. Prisoners are dying in their cells, and in the prison hospital ward. Many have untreated opportunistic diseases such as TB and thrush. Some of them cannot walk, wash or eat food by themselves because they are so sick.

200. The state appealed the judgment he Judge granted them leave to appeal but ordered that they must immediately begin the treatment for those prisoners that need it, and that government must produce a plan for the court about how they will do this. The deadline for this order was 14 August. Government refused to produce a plan and they have disobeyed a direct order from the court. Instead they again appealed.

201. On 28 August 2006, Judge Nicholson of the Durban High Court held the following:

"The (Government) respondents are in contempt of the order of [the Court].

..If the refusal to comply does not result from instruction from the first respondent, the Government of the Republic of South Africa, then the remaining respondents must be disciplined, either administratively or in an employment context, for their delinquency. If the Government of the Republic of South Africs has given such an instruction then we face a grave constitutional crisis involving a serious threat to the doctrine of the separation of powers. Should that continue the members of the judiciary will have to consider whether their oath of office requires them to continue on the bench. - EN and Others v. Government of the Republic of South Africa and Othes, Case No 4576\06, 28 August 2006

202. Resistance to judicial scrutiny by the Minister of Health and her colleagues in matters affecting public health, border on contempt. In another matter, the former Chief Justice rebuked the Minister of Health with the following words:

The Minister of Health] evinced a deplorable lack of respect for … the highest court in this country in respect of all matters other than constitutional matters.

203. At the same time because of the Westville death TAC mobilised in every part of the country with occupations, marches and demonstration. On 24th August 2006 marches were held in every province and globally to demand that President Mbeki and the Cabinet:

Convene a national meeting and plan for the HIV/AIDS crisis now.

End deaths in prisons - provide nutrition, treatment and prevention.

Dismiss Health Minister Manto Tshabalala-Msimang

Respect the rule of law and the Constitution.

Health for all - End health Apartheid, Build a People's Health Service.

204. After six weeks campaigning including a letter signed by signed by 80 international scientists on 04 September 2006 supporting TAC demands, government changed course. Cabinet appointed Deputy-President Phumzile Mlambo-Ngcuka chairperson of SANAC and head of the Inter-Ministerial Committee on AIDS.

205. On 19 September 2006, Deputy-President Phumzile Mlambo-Ncguka addressed the Ninth Cosatu Congress. In her speech, the Deputy-President dealt an irreversible blow to AIDS denialism. She stated unequivocally that HIV, the virus that causes AIDS, is the major cause of death in our country. TAC issued the statement below:

Deputy-President Mlambo-Ncguka also affirmed the need for prevention, positive living, nutrition, treatment including ARVs, programmes for vulnerable children and emergency social security assistance for poor people living with HIV/AIDS. She addressed the factors we all agree drive the epidemic: social and economic inequality, gender inequality and violence.

Cabinet has once again stepped into the centre of the campaign on HIV/AIDS. This is where it belongs. Through the restructured Inter-Ministerial Committee and its various statements, Cabinet has authorised meetings with the Treatment Action Campaign (TAC) and insisted on a clear message from government on HIV prevention and treatment.

The Treatment Action Campaign (TAC) welcomes Cabinet intervention. This is the direct result of public impatience. Public anger was fuelled by the Minister of Health's performance in Toronto against the backdrop of rising AIDS mortality and HIV infection, government undermining of the rule of law in the Westville Correctional Services court matter and the preventable death of "MM", the Seventh Applicant in that case. TAC mobilisation against the confusion, delays and state-sponsored AIDS denialism led to Cabinet intervention. This intervention must be based on sustained leadership, addressing past confusion and a clear plan for the future.

Does the government "olive branch" go far enough to address the real questions such as: how do we avoid new HIV infections, stop preventable death, overcome the health system crises and create openness? 206. In the end our questions were answered largely in the affirmative. The South African National AIDS Council was restructured. Mark Heywood, then TAC treasurer was elected Deputy-Chairperson replacing the Minister of Health who disappeared from the public arena until a new HIV & AIDS and STI National Strategic Plan for 2007-2011 (May 2007) was adopted. The Plan is published as “an initiative by the South African National AIDS Council”. It was adopted by Cabinet. This is the first plan since the NACOSA plan that involved all sectors of society in its drafting and integrated prevention, treatment, care and support with a human rights framework. There are still difficulties but the course is irreversible.

207. This success has only come at the cost of lives, unnecessary political struggle, a failure of institutions. It came to late for millions who were newly infected or died. But,

Matthias Rath and the Rath Foundation

Context and nature of Matthias Rath's message

208. For many years, I vaguely associate Matthias Rath with strange adverts in newspapers nationally and internationally. Although entertaining, I always dismissed these adverts as the wasted money of a conspiratorial crank. In around November 2004 when I heard about and saw an advertisement published by him in the Mail & Guardian newspaper.

209. In this advertisement Matthias Rath claimed that (a) multivitamins and micronutrients are an appropriate treatment for HIV/AIDS, (b) ARVs are not an appropriate treatment for HIV/AIDS and (c) ARVs do more harm than good. Although I did not take Matthias Rath particularly seriously at this stage as he seemed to be another "quack" offering supposed miracle cures for HIV/AIDS, the claims he was making were clearly false and I was concerned that they would confuse people living with HIV/AIDS.

210. In particular, I was very concerned about the juxtaposition of his false claims for his multivitamins and false criticisms of ARVs, which I consider is designed to persuade people living with HIV/AIDS to stop taking (or not start taking) ARVs but rather to take his multivitamins instead. As a result of this, the TAC brought a complaint against Matthias Rath to the South African Advertising Standards Authority, which ruled in our favour on the basis that the claims in the advertisement were indeed unsubstantiated.

211. Over the following months, I became aware of a number of further advertisements published by Matthias Rath in South African newspapers. These advertisements (which I understand Nathan Geffen is analysing in considerable detail in his witness statement in these proceedings) made a variety of false and misleading statements, for example:

“Micronutrients Reverse the Course of AIDS!”

“Evidence from a pilot study that micronutrients alone can dramatically improve clinical conditions and immune function of HIV/AIDS patients, increasing white blood cells, lymphocytes, monocytes, T-cells and CD4 counts.” “And the nutritional programme conducted by the South African National Civics Organisation (Sanco) in Khayelitsha and Gugulethu has proved that with micronutrients alone – you can reverse the course of AIDS."

“Pharma-Fraud with HIV/AIDS: The TAC promotes AIDS drugs such as AZT that are extremely toxic and kill people. They damage the immune system, thereby worsening immune deficiency. This is why many people taking AZT get sick with tuberculosis and other infectious diseases.”

“Hundreds of studies have found that AZT is profoundly toxic to all cells of the human body, and particularly to the blood cells of our immune system.”

“Numerous studies have found that children exposed to AZT in the womb suffer brain damage, neurological disorders, paralysis, spasticity, mental retardation, epilepsy, other serious diseases and early death.”

“The TAC demands that the South African government buy AIDS drugs that do not cure but actually make people even more sick.”

“The ... study showed that inexpensive multivitamin treatment is more effective in staving off disease among HIV-positive women than any toxic AIDS drugs.”

“Do you want to continue being misled by the pharmaceutical industry and its front organizations to believe that exorbitantly expensive and highly toxic drugs like AZT and nevirapine are the answer to AIDS?”

212. I also became aware that Matthias Rath was making similar claims on his website and, more importantly in my opinion, in the townships around Cape Town and elsewhere in South Africa. Matthias Rath spread his message in a number of different ways:

212.1 He uses the media through paid advertisements and deliberately courts controversy that gets media attention. TAC has relied on the media as a part of the democratic process and to access life-saving prevention and treatment programmes in our health system. Rath uses the media and the controversy he generates to promote and sell his theories and products.

212.2 As I explained above, the role of community organisations cannot be overestimated in the townships and Matthias Rath sought to use community organisations to spread his message. The South African National Civics Organisation ("SANCO") is a national community-based civic organisation that is very active in the townships around South Africa. Founded in 1992 as a unitary structure of all the township residents’ organisations that resisted apartheid, SANCO is allied to the ANC and has failed to represent the interests of local communities in the areas of water, sanitation, health and housing delivery. Many of its leaders are elected as municipal councillors and retain a very strong network of patronage in communities linked to council tenders and other forms of business. (See article by Jeremy Seekings SANCO Strategic Dilemmas in a Democratic South Africa Transformation 34 (1997) pages 11-30). While this is by no means a description of the entire organisation or the motivation of all of its members, it does reflect the broad perception of SANCO (as a network held together by patronage) among civil society organisations that struggle for access to services by the state.

212.3 I know and understand that Matthias Rath has a relationship with SANCO whereby he uses them to spread his message in these communities. For example, I understand that SANCO members go from house to house in the townships to find people living with HIV/AIDS and to persuade them not to take ARVs but to take Matthias Rath's multivitamins instead. In fact, one of the Rath newsletters claimed that SANCO is "spreading its wings to the rest of the country", including vitamin centres in Gugulethu, Hout Bay, Phulami (outside East London), KwaMashu and New Germany (in Durban) and Soweto

212.4 I am aware that Matthias Rath has held public meetings in the townships and elsewhere in South Africa supported by SANCO. By way of example, I understand that there was a public meeting convened by him in Athlone in November 2004. I understand that both he and Anthony Brink delivered speeches, with Matthias Rath claiming that micronutrients treat AIDS and Anthony Brink claiming that ARVs are toxic.

212.5 I also understand that Matthias Rath has tried to create a kind of domino effect within the communities, whereby his message is delivered by word of mouth. For example, in an edition of his "You Can!" newsletter I have seen, he implores readers as follows:

"Read this book carefully and share this life-saving information with your friends, neighbours and colleagues"

"Help to spread this important health information in your community and to anyone you know. You can save lives!"

212.6 I am also aware that Matthias Rath has held press conferences in South Africa to promote his products (indeed, his own website gives details of a press conference held on 15 June 2005 and contains a photograph purporting to show patients on a trial run by him).

212.7 I am also aware Matthias Rath also published pamphlets and a newsletter (called "You Can!") in the townships and displayed posters in stop stations for minibus taxis. Many of these publications were in Xhosa so that he can also get his message to those people in the townships who do not understand English.

213. In 2005 in particular, Matthias Rath and the message he was spreading was widely known in the Western Cape area of South Africa in particular. As I said above, he had (and probably still has) significant political support - notably from Health Minister Tshabalala-Msimang – which simply gives more legitimacy, credibility and potency to his claims.

Relationship with the South African government and other AIDS denialists

214. Matthias Rath feeds into and uses AIDS denialism to promote his stance on HIV treatment and his products. 215. From early on in 2004, the Department of Health and Matthias Rath appeared to be in collusion. At least two sets of facts lead to such a conclusion. First, a letter signed on behalf of the Director-General of Health tries to avoid the registration of VitaCell as a medicine because according to the Department “will be regarded as a nutritional supplement”. The letter states further “we declare the combination [VitaCell] as a Food Supplement for distribution and importation in South Africa in terms of the Foodstuffs, Cosmetics and Disinfectants Act. This letter was attached by the Director-General in his answering affidavit in the litigation between TAC, Rath and the Department of Health. Second, on 23 March 2004, the country’s premier public research body, the Medical Research Council’s President Anthony Mbewu met with Rath and his associates. They described TAC as in the pay of the “pharma cartel” and proposed to get the late Professor Sam Mhlongo to work with them because of his ties to the Presidency”.

216. It is public knowledge that the previous head of the MRC, Professor William Malegapuru Makgoba resisted denialist pressure and courageously protected his researchers against interference from the Minister of Health. Professor Makgoba has also confirmed these facts to me in conversation. whose then new President Dr Anthony Mbewu

217. In April 2005 I was made aware of an imbizo (a large community meeting) in Khayelitsha that was chaired by Health Minister Tshabalala-Msimang, with Matthias Rath who she treated as the honoured guest. I recall a message from the chair of the Health Portfolio Committee Chairperson James Ncgulu ANC MP who informed me of this meeting. There were a number of activists from the TAC present and they kept asking the Health Minister to condemn Rath's activities, which she consistently refused to do. It was clear to me that our Health Minister, and so somebody whose views many people in the community would be persuaded by, was endorsing Rath.

218. In fact, Health Minister Tshabalala-Msimang was asked parliamentary questions about her relationship with Matthias Rath on 15 June 2005. I refer to the questions raised and her answers at pages [ ] to [ ] of "A[ ]A1". In summary, Health Minister Tshabalala- Msimang said that she had met with Matthias Rath and that they had discussed "his concern for people infected with HIV and suffering from the impact of AIDS". Most importantly, the Health Minister was asked whether she would distance herself from Matthias Rath's claims "that AIDS can be cured by vitamin supplements and that antiretrovirals are deadly poison", to which the Health Minister responded as follows:

I will only distance myself from Dr Rath if it can be demonstrated that the Vitamin supplements he is prescribing are poisonous for people infected with HIV.

219. The Rath publication You Can! states on page 2

The Dr. Rath Health Foundation Africa has the support of our Minister of Health and our Government. The vitamin programmes used are qualified as food and nutrition. As opposed to toxic ARV drugs, these programmes are safe because they are natural. Don't fall for the dirty tricks of the Drug Cartel: trust our Government and those who support it. 220. I am also aware that David Rasnick and Professor Mhlongo, who were both employees of the Rath Foundation (Professor Mhlongo has since passed away), presented the findings of their unapproved clinical trial at the National Health Council in Midrand on 23 September 2005, at the invitation of the Minister of Health Dr Manto Tshabalala- Msimang. The former Deputy Minister of Health Ms Nozizwe Madlala-Routledge who was present at this meeting informed me of this. Their presence at the National Health Council was not denied by the Director-General of Health in his affidavit in the matter relating to unregistered medicines, false medicinal claims and unlawful clinical trials.

221. Matthias Rath managed to get his message to at least hundreds of thousands of people in South Africa. He utilised the largest newspapers for his message. The delays from 2004-2006 by the Minister of Health to roll-out antiretroviral therapy was directly linked to the promotion of quack cures.such as those of Rath, Van der Maas and Gwala. More than the other quacks, Rath has a seemingly inexhaustible supply of money that makes him a great deal more dangerous as a promoter of false cures especially when allied to SANCO.

222. I have no doubt that Rath contributed in large part to the “madness” of AIDS denialism in our country that led during this period to the deaths of hundreds of thousands of people. I attach the statements It is not simply the fact that people died without medicines but the fact that their President refused to name their illness denied their death a dignity.

Matthias Rath's message and its effects

Irresponsibility of Matthias Rath's message

223. In light of their obvious and presumably deliberate potency to poor, undereducated, sick and desperate people living with HIV in South Africa, the TAC had to do a great deal of work to combat the message that he was promoting. Matthias Rath's activities were so widely known and his message so widely understood that there was a huge reaction against him by a wide range of people and organisations. I have read paragraphs [ ] to [ ] of Nathan Geffen's witness statement in this regard and I agree with and endorse their contents.

Effect of his message - confusion

224. I have encountered and am aware that numerous TAC members and others encountered widespread confusion amongst people living with HIV in the Western Cape, Gauteng, Eastern Cape, KwaZulu-Natal and beyond as a direct result of Matthias Rath's activities. In fact, I believe that Matthias Rath's advertisements are intended to persuade people with AIDS not to take ARVs, so it is little surprise that they often have that effect.

225. At least five deaths of named patients can be attributed directly or indirectly to the activities of Rath.

226. By way of example only, there is a well-known patient of Matthias Rath, Marietta Ndziba whose mother is a local ANC and SANCO leader. Ndziba, I understand was also the leader of the Matthias Rath patients' support group in Gugulethu. She died in early October 2005. I refer to a report from the Cape Times dated [ ] reporting this at pages [ ] to [ ] of "A[ ]A1" [(NG50) (LL6)]. Although Ms Ndziba's personal testimony as to the efficacy of Matthias Rath's medicines was on the Rath Foundation’s website in 2005, it no longer is on there.

Anthony Brink's genocide complaint

Anthony Brink and his ICC complaint

227. At various points in this witness statement I have referred to a prominent AIDS denialist in South Africa called Anthony Brink. I have been aware of his activities but ignored him for more than a decade. I continue to do so. In or around January 2007 I became aware that Brink had submitted a criminal complaint of genocide against me to the International Criminal Court ("ICC") in The Hague.

228. By way of illustration only, I set out below some of Anthony Brink's activities that I am aware of:

228.1 Brink tried to sue Glaxo Smith-Kline for causing the death of his friend James

228.2 When Nelson Mandela's son died of AIDS in 2005, Anthony Brink blamed ARVs even though President Mandela himself acknowledged that his son died of AIDS.

228.3 I refer to Brink's ICC complaint regarding me at pages [ ] to [ ] of exhibit "A[ ]A1". Amongst other things, this makes various false and ridiculous allegations against me, which the Defendants' solicitors have told me that I do not need to respond to in this statement.

229. The ICC complaint also states as follows:

In view of the scale and gravity of Achmat’s crime and his direct personal criminal culpability for “the deaths of thousands of people”, to quote his own words, it is respectfully submitted that the International Criminal Court ought to impose on him the highest sentence provided by Article 77.1(b) of the Rome Statute, namely to permanent confinement in a small white and concrete cage, bright fluorescent light on all the time to keep an eye on him, his warders putting him out only to work every day in the prison garden to cultivate nutrient-rich vegetables, including when it’s raining, in order for him to repay his debt to society, with the ARVs he claims to take administered daily under close medical watch at the full prescribed dose, morning, noon and night, without interruption, to prevent him faking that he’s being treatment compliant, pushed if necessary down his forced-open gullet with a finger, or, if he bites, kicks and screams too much, dripped into his arm after he’s been restrained on a gurney with cable ties around his ankles, wrists and neck, until he gives up the ghost on them, so as to eradicate this foulest, most loathsome, unscrupulous and malevolent blight on the human race, who has plagued and poisoned the people of South Africa, mostly black, mostly poor, for nearly a decade now, since the day he and his TAC first hit the scene. 229.1 He has regularly attacked TAC, clinicians, scientists, journalists and others in the most venomous and vexatious manner. A record of these attacks would fill a couple of hundred pages.

230. Any sane, never mind reasonable, person would ignore this complaint and statement as the behaviour of an obsessed and disturbed personality. I chose to follow the route of a reasonable person in this matter. However, the fact that Rath sued the Guardian over a report relating to this “complaint” invites the following responses.

231. In the defamation matter where TAC sought an interim interdict against Rath and his cohorts, Brink demonstrated his affinity for the fantastic. He presumed to diagnose my physical and mental health and the impact of ARVs on my life. His slander failed then on the basis of evidence by my doctors.

Relationship between Anthony Brink and Matthias Rath

232. I know that Anthony Brink is a close associate of Matthias Rath and a former employee of and spokesman the Rath Foundation. By way of example, I am aware that:

232.1 Anthony Brink conducted the Rath Foundation's correspondence with the ASASA when the TAC complained about the advertisement referred to at paragraph [ ] above;

232.2 Anthony Brink was responsible for the Rath Foundation's response to the libel action brought by TAC against Matthias Rath [(Rath radio interview on Prime Talk on 19 April 2005)];

232.3 Anthony Brink is named as the contact for interested persons in a number of the Rath Foundation advertisements;

232.4 Anthony Brink writes regular press releases, letters to organisations and political figures, and affidavits against the TAC and in support of Matthias Rath; and

232.5 Matthias Rath's website at www.dr-rath-foundation.org.za links directly to Anthony Brink's website at www.tig.org.za.

Matthias Rath's endorsement of the ICC Complaint

233. The ICC Complaint appears by a link on the Dr Rath Health Foundation website. On 15 January 2007 the Rath Foundation issued a press release, in which it described the complaint as “entirely valid and long overdue”. The press release’s only criticism of the complaint related to the focus on me only, since “there are many TAC individuals equally culpable”. Accordingly, rather than distance himself from the complaint, the Claimant in fact has sought to widen it and to implicate others who have sought to get the best possible treatment to people living with HIV/AIDS in South Africa. The press release remains accessible on the Rath Foundation’s website.

Summary

234. I would have no hesitation in ascribing the adjective madness to describe the decade of state-sponsored pseudo-science AIDS denialism that South Africa has experienced. Irrational ideological beliefs by the President, the Health Minister, aided and abetted by Rath, Brink Van der Maas, Gwala and others led to hundreds of thousands of the unnecessary HIV infections in infants, children, men and women and the preventable premature deaths of hundreds of thousands of other people.

235. At the other end stands the enormous sacrifices by countless people in our country who nursed, marched, counselled, provided treatment care and support to those who are ill and have died. Together, their efforts have ensured that nearly 500 000 people in South Africa are on ARV treatment.

236. I believe that the contents of this witness statement are true.

………………………………………. ……………………

Abdurrrazack [ ] Achmat Date

Defendants A[ ] Achmat First [ ] July 2008 "A[ ]A1" – "A[ ]A3"

Claim No. HQ07X02333

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

B E T W E E N:

MATTHIAS RATH

Claimant

-and-

(1) BEN GOLDACRE

(2) GUARDIAN NEWS & MEDIA LIMITED

Defendants

WITNESS STATEMENT OF ABDURRAZACK [ ] ACHMAT

90 High Holborn London WC1V 6XX

Tel: 020 7067 3000 Fax: 020 7067 3999

Ref: GAP/IRF/LXN/G3800.415

Solicitors for the Defendants