Introduction Part A:
The Background of this application

The Hamburg Case

  1. The Applicant’s case has little legal merit and is largely based upon collateral issues. Their voluminous averments are a collection of innuendos, half-truths, misrepresentations and open defamation. Their use of collateral issue evidence in substantiation of their averments cannot be justified by any legally acceptable reliance on similar fact evidence principles.
  2. A centre-piece of the “collateral strategy” of the Applicants is the reference to other litigation brought against me in some other countries. I will deal with these allegations in detail below. Fact is that all these lawsuits were filed within a few specific countries, the common denominator of which is that they are major pharmaceutical export nations. Consequently, these countries are also the home of rather aggressive lobby organizations trying to protect the market monopoly for the pharmaceutical business with patented drugs – particularly against all threats from non-patentable, natural health approaches.
  3. Contrary to the allegations made by the Applicants, none of these lawsuits against me has ever resulted in our vitamin products being qualified as prescription items or being banned. To the contrary, during these lawsuits our vitamins were explicitly confirmed as freely available “nutritional supplements”.
  4. During the filing of their Application the Applicants were aware of ongoing litigation. In the Court of Hamburg, Germany, a case was tried where similar allegations to the current Application were being brought against me. The Applicants here were obviously prepared to use the outcome of the Court case in Germany as judicial precedent for this litigation.
  5. In order to negate that possibility and allow for an objective judicial process of the current Application, I felt obligated to wait for the conclusion of the litigation in Germany .
  6. This explains the filing of this Affidavit only at this time – after the conclusion of a possible precedent case in my home country.
  7. On October 9, 2006 the Court of Hamburg dismissed all charges against me for breach of the pharmaceutical law and all other allegations brought against me. The ruling of dismissal became final on December 19, 2006 .
  8. I should point out that the judge made a finding on a minor issue, namely a link between the website of our Foundation providing natural health research information and the website showing our vitamin formulas, which was corrected immediately. Because this was a minor issue, the prosecutor, the court and I agreed that I will make a donation to a charitable foundation, which I did.
  9. From a legal point of view, the case against me was dismissed in its entirety. For details I refer the Honourable Court to paragraphs 4 and 5 in the affidavit of my counsel Dr Krueger.
  10. Most significantly, during his final remarks the Judge of the Hamburg Court acknowledged the scientific validity of our research efforts. Summarizing two days of hearings including expert witnesses he stated that I could be considered a “pioneer for new approaches towards the control of cancer” and explicitly stated that the proceedings showed that I acted “honourably.”
  11. The decision of the Hamburg Court and its characterization of our research as “pioneering” challenge the very basis of the applicant’s efforts to win this case by discrediting my scientific credentials.
  12. The Applicants must have realized the potential consequences of the German Court decision for this very litigation here. Less than 4 weeks after the decision to dismiss all charges against me in Germany had been announced on October 9, 2006 , the “TAC” went public in the South African media and announced its wish to settle court cases - including this very case.
  13. On November 9, 2006, precisely 4 weeks after the court decision in Germany, the Cape Times, referring to the “TAC” general secretary wrote: “The TAC would also settle the alternatives to anti-retrovirals (ARVs) case and the Matthias Rath case if the government stated that nutrition was not an alternative to ARVs and that all claims for medicines were based on the Medicines Act”: (Annexure ‘Cape Times’)
  14. In a 180 degree turn from its previous aggressive PR campaign, the “TAC” changed its course towards “settlement.” There was no word any longer about interdicting our vitamins and banning them as drugs and no word of defamation about Dr Rath or his research team, which were the very subject of more than 600 pages in this Application!
  15. The alleged thawing of the relation between the “TAC” and the government referred to in this article can never explain such a dramatic shift in the position of the “TAC”, which simply rendered the allegations of this complaint null and void.
  16. In conclusion, the fundamental change in the position of the “TAC” in connection with this Application documents that the Application was not filed with the goal of addressing any serious legal issues rather than as yet another piece in its propaganda campaign promoting ARV drugs. If the current Application no longer serves the “TAC”’s propaganda goals – or if its outcome may even threaten to harm those goals – the “TAC” should simply announce that it wishes to abandon it.
  17. These events, in my view, strongly suggest that this case has never been about any breach of South African law but merely an effort by the Applicants to instrumentalize the High Court for propaganda purposes, serving the pharmaceutical investment interests.