Attorney Bongani Luthuli: Gambling With Our Children
Attorney Bongani Luthuli: Gambling With Our Children
Bongani Luthuli is Attorney and Director at Bongani Khanyile ka Luthuli Attorneys Ince, pan-Africanist, ACDP NEC. Earlier this year, he won the the battle for Ivermectin in South Africa.
This is an edited segment from the weekly live General Assembly meeting on November 22, 2021. The full meeting can be viewed here.
[00:00:00] [00:00:30] Dr. Mark Trozzi, MD: So with no further ado, I would love to introduce attorney Bongani Luthuli to speak with us regarding child vaccination. [00:00:39] Bongani Luthuli: Good morning. Good evening. Good evening. [00:00:42] My name is Bongani. Literally, it is a singular honor for me to be here tonight. I particularly am comforted that I can see so many familiar faces that I know, and that’s very comforting. I am a practicing attorney, a little bit about me: personal attorney, running my own firm. And I’ve been in practice since 2014. [00:01:06] Now it feels like one is writing first draft of history. Given the epoch that we’re in, specifically with regards to the litigation that we’re facing in this country. And one almost thinks of the phrase, the Chinese curse: "May you live in interesting times," and since the advent of COVID we have been in interesting times. And I’ve been, maybe I should say blessed to be in the thick of things as a lawyer. [00:01:31] Even though the cases that we’ve taken to court have been quite sensitive and indeed life-changing, as far as, my express concern. Just two disclaimers, Mark, I’m not as creative as you. So I haven’t created any presentation. I think my voice is a bit more interesting than a presentation that I would give you. [00:01:50] So I’m a reluctant 21st century practitioner. I’d rather speak extempore and I will come in exchange around that. The second disclaimer is I’ll be discussing the legal nuances on the case as opposed to the medical and scientific issues involved there too. That’s best left to you better than I do, but I can certainly discuss the legal framework of my assignment here tonight. [00:02:14] And I think the best place to start is painting. A timeline of events and that’s how I can sketch where we are. So on the 29th of October the African Christian democratic party since the ride was called part in terms of its ideology, instead of launched an application to the high court in Pretoria joined Free the children save the nation foundation, the caring health workers coalition and COVID care Alliance, NPC. And there was a illegal action instituted against the minister of health as the first respondent, that’s doctor Paula, the acting director of health Dr. N Crisp, SAPRA, which is the regulatory authority when it comes to medicines in South Africa. Seeking the following relief. [00:02:57] And that’s quite pertinent from a substantive point of view. The first issue that the ACDP and all the applicants sought or seek in this application is pending the finalization of the free the children save the nation appeal, including any review that may arise there too. We need a stay of the rollout of the vaccination of children and mass and nationwide, which is a decision that was taken by vaccine known as comirnaty, and/or Pfizer BioNTech COVID-19 vaccine, for use and administration of an aged 12 to 17 to be restated specifically in the following two legs relieve that we seek. From implementing the children’s rollout in the country, as well as from administering the vaccine to the child identified as being 12 to 17 years. [00:03:52] But we actually do say in our papers that the relief we seek doesn’t seek to extend to the medic, to the emergency vaccination that a practitioner may actually prescribe, but that’s on a limited case by case basis. So you can already see that a lot of thought was put into this, not an irrational application by some bunch of fundamentalists. [00:04:13] But actually it is quite an important matter that we’ll bring on behalf of the concerned parents in the constituency of the ACDP and all the parties concerned. Now we seek also the following. That must be explained by SAPRA in calling out for the interdict. One, that they need to address us on the adverse effects that include blood clotting, myocarditus, pericarditis and neurological complications that you know, better than I do. [00:04:43] And two we seek understanding on the rationale around the fact that children generally are effectively no risk. As we know, there seems to be some medical consensus that they’re not at risk of SARS-CoV-2 virus. And that’s been the scholarship around in terms of our research. So why are we rolling out the vaccination to children that when we submit the children do not require vaccination for their own protective flowing from the first point that I’ve mentioned. [00:05:13] Fortunately, that the society at large does not require children to be vaccinated, to spread, to prevent the spread of transmission of COVID-19. So I act in the medical, we have the African Christian democratic party and free the children foundation. Let’s get to the factual metrics. And again, that will be best explained in terms of timelines. [00:05:34] So on the 12th of September SAPRA using its provision in terms of section 21 of the medicines and the latest substances act authorized Comirnaty to be used as an experiment against I think it’s, COVID 19 to the children aged 12, as I’ve explained, to 19, and this is used in, I must unpack section 21, that the rationale around Section 21 is that authorization is used for emergency use. And it’s a product only that should be used on a trial or experimental stage. So it begs the question as to why in an emergency treatment must you use the entire population to run a trial. Why are you not sampling as it were, it’s normal medicine or scientific ethics is that when you do any experimental study, you sample a population. [00:06:21] Why must we roll out in mass when we don’t have critical information around the adverse effects of the children? And that’s the first issue that the court must grapple with. And I think it’s quite a compelling argument that we make out to counter that justification around the massive roll out. [00:06:37] And on the 21st and 22nd September using what we call a Pyre application, that’s the promotion of access to information act. We wrote to the department of health and SAPRA requesting information around the scientific data that was used to bring about this rollout until the section 21. In fact, I must add that in our understanding of the definition for vaccine, this particular community doesn’t actually meet the definition of vaccines more of an experimental vaccine as far as we concerned. [00:07:10] [Inaudible] So to [inaudible] the SAPRA and the minister has litigated in similar perspective. So on the 8th of October, in terms of section 24, capital eight, and that’s critical to the application that we’re making. Because when they lost an appeal, section 24 capital ACEs, if you launch an appeal that appeal needs to be entertained 30 days from the date of noting. [00:07:35] And also you need to have been aware of the decision of in 30 days, you need to react to it. So that was filed on time. On the 8th of October now SAPRA ignored the particular appeal. And that is crucial in terms of why we went to court on an urgent basis because subtract didn’t actually allow the internal limit is to be exhausted as in visage in terms of section 24, capital a and as a result of that, on the base of that appeal, maybe if I can unpack it quite quickly, was that the scientific and medical evidence did not support the administration of vaccines. [00:08:10] I’ll talk a bit later about the kind of evidence and scientific research we rely upon on, on our papers. Be that as it may, and in light of the section 24 capital appeal that was launched on the 15th of October, suppler announced a decision [inaudible] the vaccination appeal, not withstanding. No response even given. [00:08:33] So [inaudible] whether they’re interested really in having a proper discourse around the decision that it wanted to take, when it completely silences and ignores correspondence and processes that are envisaged in terms of the act that regulates it. 8th of October, again, the free the children, the foundation sends out correspondence demanding that the rollout be suspended pending the appeal that is yet to be detained. [00:08:57] Already you can see that we’re building the case to high court for urgency. Again, no response from SAPRA. What we then have is on the 19th of October SAPRA making an announcement that the rollout will commence the next day, which is the 20th of October. [00:09:15] And perhaps for reflection here. One is to go back to the provisions of the constitution around the children’s. Section 28 says that the best interest the children of paramount importance. [00:09:27] Now, with the lack of science around this experiment, the question which I would ask rhetorically perhaps in this forum is whether, is it in the best interest to gamble? This is what it is. It’s a gambling with our children. Isn’t the best interest to gamble with the lives of children. In the name of this experiment. [00:09:47] Now 26 October was a meeting SAPRA called the parties, free the children foundation to sit with them. When they said the following important concession was made by SAPRA. And we have it on record in our paper, SAPRA said it only relied on information received from pharmaceuticals and they haven’t done any critical studies, they haven’t done any analysis of their own to roll out now without getting political or even speculative you can already see the agenda. [00:10:20] If you only taking one side and that’s the pharmaceutical side to roll out. For me, that’s not an informed, scientific decision that justifies the rollout of the vaccine on the children. And secondly, the further problem we have with this decision is the issue of liability that the supplier has been mum about. [00:10:41] If in the event of effects, in the event of clinical trial, on, on children, but what is the constitutional framework? Because South Africa lives in a constitutional democracy with sacrosanct rights and some of these sacrosanct rights must be explained quickly that support our application. I’ve already explained section 28, to which we submit this whole exercise is not in the best interest of the children, but crucially is section 12 2C of the constitution that says you have a right, not to be subject to medical treatment without informed consent. [00:11:14] The question is the policy says children can be vaccinated without the parent’s consent. Already falls foul to section 12 2C and nevermind consent. The issue of informed consent. There’s secrecy around the content of this comirnaty vaccine. How is anybody going to decide whether this vaccine is in the best interest of the children, which medical practitioner can advise on the adverse effect on specific children without knowing the content of the vaccination. [00:11:43] And that’s critically what we complaining about. And we know SAPRA will come in terms of section one to nine of the children’s vax and several will say there is a schema for an exception around section 1 29, which says under certain circumstances, consent may be dispensed with, and we submit with respect that this is not one of those situations, because that particular provision is clear on when consent may not be needed. [00:12:07] So there are lines of one to nine should SAPRA be so inclined to, to use as a justification won’t cut it in our view as a as a rationale. And looking at the rationale itself in our observation, a feature of COVID and that’s a part that’s from the scholarship, as well as the research has been done from the experts evident that we have it’s quite global in its reach is that there’s a disproportional effect on the age and fatality rate. [00:12:35] And the consensus has been that young people are most likely not going to contract COVID-19. And also the level of hospitality amongst 15 to 19 is low and even lower is the infection rate amongst that age group. So why then roll out a policy of that nature? In fact, in terms of the world health organization’s own studies and research, the fatility rate amongst young children is 0.15%. [00:13:06] And again, that’s quite scathing. When one looks at the rationale for rolling this out on children. We have Dr. Craig as one of our experts witness, and he gave us evidence around a study he did in UK and in his studies, he says the mortality data strongly suggests that young males, young males who have been vaccinated with Pfizer product, that’s been approved by by SAPRA is very high. And that’s disturbing. [00:13:34] And that shows again, that even from the justification point of view, there’s not much rationale. There’s not much studies. And if they ask that, is there, we’re just tone deaf on, on some of the conclusive evidence like Dr. Craig’s studies that he’s given in the case of UK. And that would take exception. [00:13:52] On the long-term effects on the children hasn’t been determined. Now we know that according to research now the efficacy of the vaccines likey [inaudible] around 20, 23, once the damage has been done by then the adverse effects on our children when that happens. [00:14:16] So the matter came before a judge free on the 10th of November. And at that time, that’s the first date of hearing on an urgent basis. At that time, SAPRA true to its its nature and litigating technique only filed its papers the day before at four o’clock, of documents spanning some 1000 pages at 4:00 PM. Who’s going to sit overnight and respond. And when do we file our response there to, to us, that’s clear Stalingrad tactic as it were. [00:14:46] But crucially SAPRA, who’s the main feature in the proceedings didn’t even bother to file its papers. And so we were forced to then ask the court to postpone the matter because the court needs to balance two versions, which may be mutually destructive, which is the version that we bring in the version that SAPRA is supposed to bring. [00:15:05] But when they don’t file papers it becomes problematic, I need to add for measure, for completion, SAPRA only filed papers Friday evening. So when we filed the, when we asked for this postponement, we then requested the deputy judge Preston to do a case management on this matter. Parties must be held on strict timeline because this is a matter of national importance. [00:15:30] This matter has been widely covered by media and to the credit of the judge president, deputy president his office responded the very same day and today, as we speak, we set in the morning with the deputy judge president, who then gave us certain directives. Now there’s been a lot of Amicus curiae applications by certain number of institutions that want to contribute example section 27 NPC as well as the national regulator information regulators want to make input on this matter. [00:16:00] So the judge has said those that need to file those Amicus applications must be filed by next week, Monday. On Wednesday, the parties must file their opposition to those papers, but this is what’s important for the meeting today is that, which is quite an exception to the normal way we litigate in this country. [00:16:19] The deputy president has said that a full bench will hear this matter. Now that’s very important because you have in South Africa, a full bench of the high court hearing a matter when it sits usually as a court of appeal. Very rarely it has a mentor is a court of first instance, which means already if there’s enough, It goes to the Supreme court of appeal. But that that shows you that what SAPRA is attempting to do to attack this application on lack of agency, to say, there’s no substance notification, the court’s already off a different view. [00:16:53] They deemed this to be a matter of public interest and they’ve given sufficient importance into the matter and that’s essentially where we are. So we’ll file all our closing papers. And then we will we’ll submit to the court. And that’s that’s where things are. I don’t know if there are questions. [00:17:09] Thank you so much, Mark. [00:17:11] Dr. Mark Trozzi, MD: Oh, thank you attorney Luthuli I’m so grateful for that really the heroic work you’re doing and attorneys legal experts around the world. On this specific subject, we have authors among us Dr. Verkerk, I see here who has written some excellent material of late, looking at the safety and the efficacy and the, some of the math that, that you mentioned there, where we know that for children it’s an underestimate to say the risk of death from injection is a hundred times the risk of death from COVID. [00:17:40] And now we’re learning as well from our scientists like Geert Vandenbosch and Dr. Verkerk’s recent work that the actual long-term dangers to the immune systems that these children is, could be catastrophic. And I can, we can quote Dr. Verkerk who present to the council last week, really beseeching the people of Africa to stop this and to hope that we can maintain a pool of healthy immune systems and achieve herd immunity somewhere in the world, because this natural process it would appear is being blocked in along the world. [00:18:11] And we’re in grave danger. So I want to thank you so much for the work you’re doing. I hope you’re. I think you are integrated with the legal counsel with the World Council for Health. [00:18:21] Dr. Naseeba Kathrada: Sorry, Mark, we, Shabnam has a comment and a question for Bongani. We do have one question for Bongani. So I’ll just let her — Shabnam? [00:18:30] Shabnam Palesa Mohamed: Thanks Naseeba, but I think Michael also has a question. I can see the lawyers want to jump in on this one. [00:18:41] Exactly. Exactly. All right. So I just everyone’s benefit Amandla in our African language means power. And the response which Bongani gave now is a way to, which means is ours is very much believe in people power. So thank you Bongani for that concise, but comprehensive exposition of this matter which is of course, a very critical one for us in South Africa, the African continent, and naturally around the world. [00:19:06] The first point I want to make, which is interesting about South Africa is when we embark on litigation, we use multiple tactics to raise public awareness and win in the court of public opinion. So what we’ve been doing as part of hope for humanity is getting out outside court with demonstrations, with banners, with Teddy bears, with, parents speaking out that, we don’t leave our kids alone. [00:19:27] We don’t want them to take jabs and also being getting a lot of as Bongani mentioned, space within the media as well to raise awareness about why this cause is so important. So that’s just a tactic that I think, and I think Bongani would agree is very effective and we need to utilize around the world very important. [00:19:43] Secondly is the question and third is the proposal. So the question Bongani is around the issue of urgency. For any court to say that this matter is not urgent, it’s bizarre to say the least. We know that the best interests of the child at paramount, we know that the courts are the apple guardian of children. [00:20:01] That’s what the legislation tells us. And we also know that in any matter, considered concerning a child is by its nature considered urgent. So I’d likely to respond and what you think. Not to be speculative, but I think by now we understand the terrain and the forces, which we face as to why a judge would say this matter is not urgent. [00:20:21] And then postpone it and allow SAPRA the leeway. And the other parties, the respondents, the leeway to file as in, when they want to, in the context of how serious South Africa takes the rights of our children. So that’s on the urgency and the proposal then given SAPRA’s consistent behavior and pattern of behavior in terms of not responding to emails, not filing papers on time, not even coming to parliament, when they’re call to address parliament, then what we actually need to do is push with a commission of inquiry into SAPRA. [00:20:53] I’ll leave it there. Thank you. Bongani. [00:20:56] Bongani Luthuli: Africa. Thank you, Shabnam. Let’s start by public opinion. I must express our gratitude as, as lawyers involved in this matter. And as, as litigants, of the support that you getting in, I must say courts aren’t really immune to public opinion and public pressure. [00:21:11] The wide coverage on this matter has forced the court in my view, to take the posture it has. It could have easily kicked it out on the grounds of urgency, which I’ll deal with as your second point, but because the parents have come out media has come and shown that we are concerned about this particular decision. [00:21:28] And so the courts then got the message that this is a serious matter, and we need to apply ourselves in a way also by some time, remember courts aren’t necessarily the best arbiters in, in, in resolving issues, especially issues of this nature, where you have a judge who is well-versed in law, but doesn’t know the science that’s involved in this. [00:21:46] So they need to consult as well, certain scholarships and assistance that they need, but that comes in very handy in terms of the support that they’re grateful for. [00:21:54] In terms of urgency there was an attempt by, by by SAPRA attorneys and the minister’s attorney’s to push this on urgency. And the court refused after obviously we vigorously opposed such a move because this must stay on the urgent role because as you correctly say it, if it involves the children, it’s by its nature urgent, but also look at the reach of this directive. [00:22:16] It’s actually nationwide. So we need to know if we’re on the right trajectory or not. So there’s no way one can say we are, the matter is not urgent. I agree with you that to allow SAPRA to file on these libertarian timeframes is a cause for concern given where we are. But I don’t think we must look at it only that way, because the court has still maintained that this matter must stay on, on, on an urgent rule and it will stay on and stay. [00:22:46] We can deal with SAPRA in terms of its tardiness in dealing with this matter, in terms of the cost orders. The proposal, certainly I agree from a political point of view that SAPRA must account, and we can do this once we have an order against them that this shouldn’t have been done, the section 21 authorization. [00:23:06] And that’s that calls already for a commission of inquiry, you would realize that the politicization of SAPRA as well as its biasness in so far as the stakeholders that are funding that are not disclosed to the public will come into the fall. And that the whole issue of the agenda will start building itself. [00:23:22] I think this proposal you’re making is very pertinent. It must be considered in its length. Thank you, Shabnam. [00:23:27] Dr. Naseeba Kathrada: Thanks. Thanks for that, Bongani. I just want to make a point in what Shabnam said. Before I came into this meeting, I was in a live discussion with the deputy minister of health and, our group the caring healthcare workers is part of the application. [00:23:39] And he, I think that it’s just a tactic and wash up memories about the urgency issue. So he made no minutes. He, and he said, Gilly, oh, there is a court case going on with a 12 to 17 year old, but the court has decided it’s not an urgent matter. And they dismissed the case. I stopped him right there. And I said, no, minister under minister, you are incorrect. [00:23:57] The matter has been deemed not urgent. It has not been thrown out of court. So they using that thing to actually put it out in public to say that the matter was dismissed, but it wasn’t, and that’s probably just a tactic. Thank you for that Bongani. I’m going to take one question from Michael Alexander. [00:24:12] And if I can ask you and put your questions in the Q&A, and Bongani will get to them please because we do have a full discussion today. And I’m just going to go with Michael to give his comments and questions, please, guys. [00:24:22] Michael Alexander: Okay. Thank you. Bongani, excellent presentation. Very concise. I really enjoyed it. [00:24:29] A question I have for you is one that I think lawyers are facing everywhere. And it’s a discussion that we are having here on an ongoing basis in my firm. And that is what kind of evidence or how you’ve been present the scientific evidence in a way to convince the court. It’s partly a communications problem, but it’s partly an evidentiary problem. [00:24:48] And so I say that because it in part depends on what your ever evidentiary standard is that you have to meet. So I was wondering what your standard is there, but also how you’re like if one side presents 50 studies, do you present 51 studies? Do you go for one killer study? There’s so many different ways in which the evidence can be presented quantitatively and qualitatively and people are here are up in the air about which approach to take. [00:25:14] So do you dump a meta analysis in front of everybody or you go for the one or two experts that can really make the case for you? Have you given any thought to that in the course of your preparation. [00:25:25] Bongani Luthuli: Yep. Thanks for that question. I’ll try to be brief, Michael. These are motion proceedings, meaning that they are dealt with on paper. [00:25:33] So your application rises or falls with the strength of your papers and their evaluation mechanism that the judges will use. Different from being a trial, of course, where you then put the expert witness and you put the version and you test the expert witness. So here, because it’s motion proceeding, there will be nearly three sets of affidavit. [00:25:50] Your finding affidavit that sets the premise of your case, and the way your case predicted, predicated upon. You’ve got the answering the affidavit, where they’ve come in with bat your initial affidavit and use their experts to do that. And then you have a final say if the applicant was dominance liters, to have a reply in affidavit, that’s where you deal with the answer of the other side, based on that the court looks and sees whether, cause the onus is on you as the applicant, have you made a compelling case, that’s enough for us to consider your expert witnesses and what you are saying, as opposed to the other side. [00:26:26] And that’s the scales and the delicate balancing act that the court will then come up with. And it’s a legal forensic way of dealing with evidence and one can find an activist judge who can go and actually study the science and even come with their own understanding and bring it to the mix and say, I choose this over that. [00:26:45] So black, we didn’t have a metal case. It was a classical example. And we had an activist judge who went just beyond what was given there. In fact went so far as to say, come to court every three months. Tell me how many people have got the other medicine drug. The same as Naseeba is saying, it’s a strategy that we give misinformation to discredit what that’s been done, and also misinform the public. [00:27:08] The whole issue of ivermectin was completely misinformed. It was said that the court did not agree that people can use ivermectin. It’s allowed in South Africa under section 21. That’s the legal issue. So that’s the issue. That’s the whole thing about evidence then quality quantitative, as well as qualitative, Michael, I don’t think for me given the court as much research as you can helps it, it’s a matter of authority. [00:27:33] Who’s an expert witness and what are the credentials and look at the weight that they can give. And we’ve been very careful. And our two expert witnesses to ensure that the ones we gave have the necessary weight. And Dr. Craig is certainly one of those that have the necessary weight. And I think when we give those to expert witnesses who will give pertinent studies informed and who are vetted and peer reviewed by the experts in the field. It carries much more weight than merely throwing every study that one can find from Google or from whatever source people can get. [00:28:07] Thank you, Michael. [00:28:07] Dr. Naseeba Kathrada: Thank you so much for that, Bongani. I just want to say to you that there are some questions for you in the chats. We are in a webinar set up, so there’s a Q&A button. I don’t see any questions there. And there’s also, our old format was putting a Q in front of the question. [00:28:22] So if Anna and Fary can put their questions either way we are getting used to the new webinar system. So Q&A, or you can write "Q" and put it into the regular chat. And I’m sure you you’ll get to the questions. Thank you so much Bongani and strength to you. We hope to hear from them soon regarding our court date. [00:28:38] Cause you know, they’ll say Christmas and holidays and move us over to next year, but we’re praying for a court date this year. And with that, I hand you over back to our host Mark. [00:28:46] Dr. Mark Trozzi, MD: Thanks, Naseeba. Yeah, excellent presentation, Bongani. I want to mention, there were a few little moments where your data scrambled a bit. So if you might consider it because I know a lot more people are going to want to share this, a lot of our affiliates are gonna want to share this. If you might have time. I know you’re very busy to maybe at some point re-record what you’ve presented to us. [00:29:05] You could record some of the questions and then we could put it up on the world council site. So our team and legal experts and affiliates could have and share that great work and really we’re all sending our positive intentions and gratitude for what you’re doing. [00:29:18]