Pharmaceutical companies and the right to access to medicine and health care : towards a stakeholder approach

LL.M. (Corporate Law)Abstract: South Africa is a country with 45 percent of her population living in poverty. Some of these people do not have access to medicine and health care despite this being a right entrenched in the constitution. The constitution states that the State must provide basic health care within the limits of resources available. This study looks at whether private pharmaceutical companies have any obligations to make the essential medicines they produce available at affordable prices to the patients who require them? If they do have obligations, how far do these obligations extend? In section 2 I will argue support for the stakeholder theory which states that a company in its operation must not only consider the interest of the shareholder but that of the stakeholder of the company. I will argue that the stakeholder theory is supported by corporate governance and company law in South Africa. Further in section 3 I will argue that the Constitution and the company law of South Africa not only provide for horizontal application of human rights obligations but also vertical application. This means that both the State and companies have human rights obligations, thus making the provision of the medicines and health care to everyone not only the responsibility of the State but also the private pharmaceuticals that produce the medicines