The SA MTA (at point 2.14 and in the explanatory statement) requires that an HREC be a contracting party to the MTA. The reason for this request is not clear. Wenn der Grund darin best-nde, HRECs besser in die Lage zu bringen, die Bedingungen und die Umsetzung eines MTA zu beeinflussen, wre dies falsch gedacht, da die Aufsichtsfunktion der HRECs beeintr-chtigt wird, dass sie Teil eines Gegenstands ihrer Aufsicht werden – man kann kaum eine Aufsichtsfunktion Apart from the fact that it is counterproductive, the requirement that a HREC be part of an MTA is also not feasible: a fundamental rule of South African law is that a single legal entity has the legal capacity to enter into agreements (. B, for example, an MTA). So the question is: Are HRCs legal entities? Labuschaigne et al. recognize this issue and its implications when they say: but suppose there is a biobank somewhere in the world that requires that any unresolved quarrel be resolved at the LCIA. According to the LONDON Court of International Arbitration (LONDON) statistics, the average Arbiter LCIA costs $US 97,000 (approximately ZAR1.63 M) solely for court costs (such as arbitration fees) and administrative fees (fees charged by the LCIA secretariat). On the other hand, a judge who sits in a South African court, in the courtroom and in the administration of the court in South Africa is paid by the state – and it costs nothing to the parties. For this court and the administrative fees of arbitration at LCIA, legal fees must always be calculated by each party representing the respective law (probably British lawyers) who follows the arbitration on behalf of his clients. In this context, the most practical and just solution would be to require that whenever the supplier of human biological material is based in South Africa, South African law must apply and that the South African courts be competent, unless the parties agree to an arbitration procedure under South African law to be held in South Africa.
A degree of flexibility can be introduced by allowing the Minister of Health to grant leashes for good reasons. However, in cases where the supplier is in a non-African jurisdiction and the recipient is in South Africa, the SA MTA should not impose the legal system or jurisdiction. This is an unbiased approach that will provide more realistic protection for South African researchers. According to Labuschaigne et al., SA MTA is a good example of how South Africa protects researchers and protects dignity, fairness and justice. I suggest that this is an overly optimistic assessment. Defining unachievable requirements, such as attaching MTMs to MTAs, is a recipe for insecurity and embarrassment – not for justice. The promising ownership of material given to researchers, when such a property is owned only by the name, is a recipe for confusion and disappointment, not for the protection of dignity.