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Witness Statement: Nathan Geffen

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Witness Statement: Nathan Geffen Defendants N Geffen First 5 September 2008 Exhibits "NG1" – "NG3" 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 NATHAN GEFFEN I, NATHAN GEFFEN, of 2nd Floor, Westminster House, 122 Longmarket Street, Cape Town, 8001, South Africa, WILL SAY as follows: 1. I am the Treasurer of the Treatment Action Campaign (the "TAC"), which campaigns for the rights and health of people with HIV/AIDS in South Africa. 2. I make this statement in support of the Defendants, who published a number of newspaper articles relating to Matthias Rath. 3. Unless stated otherwise, the facts stated in this witness statement are within my own knowledge and belief. Background 4. I graduated with a M.Sc. in computer science from the University of Cape Town (UCT) in 1998. 5. During 2000 and 2001 I was a lecturer in computer science at UCT and it was during this period that I volunteered for the TAC. I began acting as the organisation’s Treasurer in 2000 and, from 2002 to the beginning of 2005, I was employed by the TAC on a full-time basis as its national manager. 6. I became the Co-ordinator of Policy, Research and Communications at the TAC in 2005 and, since then at the latest, I have been the individual at the TAC principally responsible for its work regarding the Claimant in this matter, Matthias Rath. I ceased being the Co- ordinator of Policy, Research and Communications at the TAC on 31 July 2008. 7. I was recently re-elected Treasurer of the TAC and resumed this position on 1 August 2008. The Treatment Action Campaign Rationale and objectives 8. The TAC is a limited company incorporated in South Africa under section 21 of the South African Companies Act 1973. This means that it is an “association not for gain" with a purpose "to promote religion, the arts, science, education, charity, recreation, any other cultural or social activity, or communal or group interests." 9. I refer to my Founding Affidavit (without its exhibits) in an action brought by the TAC and the South African Medical Association (SAMA) against Matthias Rath and others dated 17 November 2005 at pages 1 to 68 of "NG1". I explain the history, nature and status of this action in further detail below, but I refer now to paragraphs 29 to 39 inclusive of the Founding Affidavit which explain in summary what the TAC is and what it does. 10. I also refer to the Constitution of the TAC at pages 69 to 84 of "NG1". As is clear from its Constitution, the TAC is an independent non-profit organisation. The principal objectives of the TAC are set out at section 4 of its Constitution, including to: 10.1 Campaign for equitable access to affordable treatment for all people with HIV/AIDS. 10.2 Campaign for and support the prevention and elimination of all new HIV infections. 10.3 Promote and sponsor legislation to ensure equal access to social services for and equal treatment of all people with HIV/AIDS. 10.4 Challenge by means of litigation, lobbying, advocacy and all forms of legitimate social mobilisation, any barrier or obstacle, including unfair discrimination, that limits access to treatment for HIV/AIDS in the private and public sector. 10.5 Educate, promote and develop an understanding and commitment within all communities of developments in HIV/AIDS treatment. 10.6 Campaign for access to affordable and quality health care for all people in South Africa. 10.7 Train and develop a representative and effective leadership of people living with HIV/AIDS on the basis of equality and non-discrimination irrespective of race, gender, sexual orientation, disability, religion, sex, socio-economic status, nationality, marital status or any other ground. 10.8 Campaign for an effective regional and global network comprising of organisations with similar aims and objectives. 11. The day-to-day work of the TAC consists primarily of providing information about the prevention, treatment and science of HIV, mainly in working-class communities in six South African Provinces. Our members encourage people to get tested for HIV and, if they test positive, to enrol in public health system programmes that monitor health and when necessary provide patients with life-saving antiretroviral ("ARV") treatment. Much of the TAC's work also involves advocating for better government policies and better implementation of government policy with respect to health, especially HIV. The TAC also campaigns for pharmaceutical companies to make medicines more accessible, by dropping their prices and allowing generic competition on some patented essential medicines. We have had tremendous success in this regard. The TAC also campaigns against pseudo-scientific medicine and for the scientific governance of medicine. Structure and membership 12. The TAC has a national office, in Cape Town, six provincial offices, several district offices (planned to grow to 12 by end of 2009) and about 250 volunteer-driven branches across six of South Africa's nine Provinces. 13. TAC is a broad association of individuals and organisations. As at June 2008, the TAC has approximately 16,000 members. Most of the TAC's individual members, volunteers and staff live in the communities that they work. For example, the TAC has more than 1,500 members in Khayelitsha, which is probably Cape Town's largest township. Organisations associated with TAC include the Congress of South African Trade Unions (COSATU), the Federation of Unions of South Africa (FEDUSA), the Southern African Catholic Bishops Conference (SACBC), the South African Council of Churches (SACC), Médecins Sans Frontières (MSF), the AIDS Consortium, and a range of other organisations of people with HIV/AIDS and individuals with HIV/AIDS. 14. The TAC interacts regularly with the Joint United Nations Programme on HIV/AIDS (“UNAIDS”), the World Health Organisation (“WHO”), and the Global Fund to Fight AIDS, TB and Malaria (“GFATM”) on HIV/AIDS treatment strategy and policy. Funding 15. As I mentioned above, I used to be the TAC's Treasurer and recently resumed that post. I am therefore intimately aware of the sources of the TAC's funding. 16. Matthias Rath often alleges that we are funded directly or indirectly by the pharmaceutical industry and therefore are part of some kind of pharmaceutical industry conspiracy. This is wholly untrue and, indeed, the TAC was forced to bring an interdict against Matthias Rath in order to stop him alleging that we are "a front" for pharmaceutical companies (hereafter referred to as the "defamation interdict"). 17. 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. Independence from the pharmaceutical industry is written into TAC’s constitution. 18. As the TAC is a not for profit organisation, it of course relies upon donations to fund its activities. I refer at pages 85 to 106 of exhibit "NG1" to the TAC's annual financial statements for the year ended 28 February 2007 (the financial statements to February 2008 have not yet been finalised). This includes a full list of funders for that financial year (at pages 100 to 101 and 106). Examples of organisations that donate to the TAC include the following: 18.1 UNAIDS; 18.2 United Kingdom Department for International Development (Dfid); 18.3 Comic Relief; 18.4 Oxfam; and 18.5 Médecins Sans Frontières. 19. As far as I am aware, and to the best of my knowledge and belief, none of the organisations or individuals that donate or have donated money to the TAC are part of the pharmaceutical industry. In any event, TAC makes it clear that money deposited in its bank account from any of these institutions will be returned (I refer in this regard to a page from the TAC's website at www.tac.org.za at pages 107 and 108 of exhibit "NG1"). 20. I also refer at pages 109 to 122 to my affidavit in our defamation interdict against Matthias Rath dated 3 March 2006. In this I refer to two examples of specific donations that Matthias Rath has suggested may in fact be indirect donations from "the pharmaceutical industry": 20.1 In 2002, TAC received R482 683.52 from the Rockefeller Foundation. To the best of my knowledge and belief the Rockefeller Foundation is a well respected philanthropic organisation without any attachment to the drug industry of the sort claimed by Matthias Rath in the advertisements that were the subject of the defamation interdict. 20.2 In 2000, the TAC entered into a funding agreement with the European Coalition of Positive People (“the ECPP”). The funding agreement stated categorically, as is common practice in our funding contracts, that “no funding shall come from, directly or indirectly, any pharmaceutical company”. Because of the ECPP’s later public stance on affordable medicine and the closeness of its views to that of the pharmaceutical industry, the TAC, after accepting R120 000, refused to take the balance of the contract amount. However, neither I nor the TAC generally have any evidence that the ECPP breached the terms of its contract by sourcing the money from drug companies. 21. I refer at pages 123 to 138 of exhibit "NG1" to the judgment of the High Court of South Africa in the defamation interdict against Matthias Rath dated 3 March 2006. The Court held inter alia as follows: 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.
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