IN THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL DIVISION)

Case No. 12156/05

In the matter between:

TREATMENT ACTION CAMPAIGN First Applicant
SOUTH AFRICAN MEDICAL ASSOCIATION Second Applicant

and

MATTHIAS RATH First Respondent
DR RATH HEALTH FOUNDATION AFRICA Second Respondent
SAM MHLONGO Third Respondent
DAVID RASNICK Fourth Respondent
ALEXANDRA NIEDWIECKI Fifth Respondent
ANTHONY BRINK Sixth Respondent
TREATMENT INFORMATION GROUP Seventh Respondent
GOVERNMENT OF THE RSA Eighth Respondent
DIRECTOR-GENERAL OF HEALTH Ninth Respondent
CHAIRPERSON, MEDICINES CONTROL COUNCIL Tenth Respondent
REGISTRAR OF MEDICINES Eleventh Respondent
MEC FOR HEALTH WESTERN CAPE Twelfth Respondent

AFFIDAVIT

I, the undersigned,

DR MATTHIAS WILFRIED RATH

do hereby make oath and say:

  1. I am the First Respondent. I am also the founder and a director of the DR RATH HEALTH FOUNDATION AFRICA, the Second Respondent.
  2. I depose hereto on my own behalf and also on behalf of the Second Respondent.
  3. The facts stated herein are true and correct and in my personal knowledge and belief. Where the context indicates that they are not within my personal knowledge or belief, I verily believe them to be true.
  4. I am advised that this Application is resoluble upon a determination of three crisp issues, namely:
    1. Am I or the Second Respondent, or our agents, unlawfully distributing the products enumerated in paragraph 1.1 of the Notice of Motion in South Africa
    2. Am I or the Second to Seventh Respondents unlawfully publishing false or misleading advertisements for the said products or about vitamins and other micronutrients generally?
    3. Am I or the Second to Fifth Respondents, or our agents, unlawfully conducting clinical trials in South Africa ?
  5. As will appear from the facts and law set out below, the short answer to these questions is in the negative: I am advised that in all the welter of allegations contained in the Applicants’ 638 folios of supporting papers, they make no case for either proposition that is good in fact and in law.
  6. Before dealing with the material allegations of the deponents it is appropriate to make certain introductory remarks that will assist the Honourable Court to adjudicate the above issues in their proper context.

Summary

Our response to the present Application can be summarized as follows:

  1. The Applicants accuse us of distributing illegal drugs or “medicines” in South Africa .

    This is false.

    Fact is that the products in question are vitamins and nutritional supplements, not drugs or medicines.
  2. The Applicants accuse us of selling these nutritional supplements in South Africa .

    This is false.

    Fact is that we have never been selling our nutritional supplements or any other products in South Africa. We have been donating them to community organizations in the country without receiving any remuneration whatsoever. As reliance is being placed by the Applicants (for alleging that we sell our nutritional supplements) on the definition of the word to “sell” into the Act, I am advised that legal argument will be advanced at the hearing of the case that such a definition would be unconstitutional, and the Court would have to restrictively interpret it, or outrightly declare it unconstitutional, in so far as it is interpreted to connote “donate”.
  3. We are being accused of mass distributing medicines that have not been registered with the Department of Health in South Africa .

    This is false.

    Fact is that the only product donated in large quantities, Vitacell, has been registered with the Department of Health on 18 March 2004 and categorized as a “food supplement for distribution and importation into South Africa in terms of the Foodstuffs, Cosmetics and Disinfectants Act 54 of 1972.
  4. The Applicants allege that we are selling unauthorized products in South Africa that were categorized as drugs in other countries.

    This is false.

    Fact is that our nutritional supplement programmes are freely available in Europe, the US and anywhere else in the world.
  5. The Applicants allege that we are maintaining illegal clinics in South Africa .

    This is false.

    Fact is that we have never had nor in any way maintained any clinic anywhere South Africa. The nutritional supplements were distributed to community members by the South African National Civic Organization (SANCO) at its own locations or through community physicians.
  6. The Applicants accuse us of conducting “unauthorized clinical trials” in South Africa .

    This is false.

    Fact is that we have never conducted any clinical trials in South Africa. The distribution of vitamin programmes is organized by SANCO or community physicians with the informed consent of the participants in these programmes.
  7. The Applicants portray themselves as the “protectors” of the South African people protecting the public from allegedly illegal experiments. They even imply a comparison with the medical experiments of “German doctors” in the concentration camps of World War II.

    This is outrageous and false.

    Fact is that the inhumane medical experiments conducted among thousands of concentration camp victims did not consist of the voluntary distribution of vitamins and nutritional supplements. Those criminal experiments were conducted with patented chemotherapy drugs on behalf of the “IG Farben” cartel, the world‘s largest pharmaceutical multinational at that time consisting of Bayer, BASF and Hoechst. This class of drugs were the precursors of chemotherapeutic drugs like ARVs, which are currently heavily promoted by the Applicants for victims of AIDS. These important aspects will be dealt with in detail later in this affidavit.
  8. The Applicants allege that we are deceiving the public with false and misleading advertisements concerning the therapeutic effects of our products in relation to AIDS and other diseases.

    This is false.

    Fact is that the placements we made in newspapers and other media contained public health information - without mentioning any products at all. In fact, we have never placed a single product advertisement in the South African media. The public health information we published provided scientific facts about the role of vitamins and other micronutrients in relation to health. This knowledge has been documented in the textbooks of biology for decades and has been comprehensively confirmed at our own research institute (Annexures ‘Malnutrition Brochure’, ‘Jariwalla’, ‘HIV/AIDS Natural Control’).
  9. The Applicants allege that they represent the interests of the civil society and that we would be working against these interests.

    This is false.

    Fact is that our natural health approach is supported not only by SANCO but also by the “Traditional Healers Organization” (THO), the “National Association of People Living with AIDS” (NAPWA) and other organizations. Moreover, our approach is in line with the national strategic plan to combat AIDS developed by the South African government.
  10. The Applicants allege that our micronutrients have no proven health benefits for people living with AIDS and would even be harmful. They allege that the only proven therapy for AIDS patients are ARVs.

    This is false.

    Fact is that nowhere in the world have ARVs been registered to be sold as a cure for AIDS. Moreover, the extreme toxicity of ARVs – especially to the cells of the immune system – is undisputed. In contrast, micronutrients are known to enhance the immune system function, a fact that is documented in every textbook of biology and biochemistry. Moreover, while not being a cure, micronutrients can reverse the disease-defining symptoms of AIDS and significantly improve the quality of life of people living with AIDS as documented in the report from the community programme conducted by SANCO ( Annexure ‘Micronutrient Programme’).
  11. The Applicants allege that our conduct is being driven by profit motives and financial greed.

    This is false.

    Fact is that all our activities in South Africa are non-profit. Moreover, all our organizations in Europe and other areas of the world serve exclusively non-profit purposes. To underscore that fact, 100% of the shares of all our commercial entities are owned by a non-profit foundation and used to promote research and education in natural health to the benefit of people worldwide.
  12. The Applicants are aware of these facts. In order to camouflage them, they submitted a 640 page Application essentially consisting of defamation, half truths, deliberate omissions and lies. We will deal with the motives for such irresponsible conduct by the Applicants - namely instrumentalizing the High Court for their political and commercial purposes - in detail below.
    Before providing detailed responses to the Application there is the need to provide relevant background information to the Application (Introduction Part A), the larger dimension of the Application (Part B) and an overview of the work of our Foundation in South Africa (Part C).