COVID CONSPIRACIES OP-ED: Jabs in the dark – why this anti-vax group’s case is a legal non-starter

I have been ill in bed for the past week with what may or may not have been a bout of Covid-19. In my befuddled state, I went down a Twitter rabbit hole of anti-vax conspiracy theories, including an entire subgenre of tweets about people who “died suddenly”, supposedly providing “proof” that Covid-19 vaccines are deadly. One example is the claim that US NFL football star Damar Hamlin’s on-field collapse in January was caused by Covid-19 vaccines, and the subsequent baseless conspiracy theory that the player had died but had been replaced by a “body double” or even a “clone”.

This got me wondering about an alleged court challenge recently launched in South Africa by a group calling itself the Freedom Alliance of South Africa (FASA). FASA says it has lodged papers in the Gauteng High Court to review and set aside various decisions by the South African Health Products Regulatory Authority (Sahpra) to register Pfizer’s Comirnaty Covid-19 vaccine for use in South Africa.

FASA is a fringe anti-vax group that promotes anti-Semitic conspiracy theories. Its Telegram channel makes rather novel claims about vaccines, including that they make you magnetic or emit Bluetooth signals, as well as bizarre 5G conspiracy theories about street lights. 

Reading FASA’s “court papers” (which can be accessed here) makes one cringe a little and laugh a little – a bit like when a CEO of a mid-sized company proudly shows you his schoolboy collection of Scope pin-up girls with the nipple caps digitally removed “with the latest technology”. 

It’s hard to look, but also hard to look away.

The 145-page founding affidavit, authored by a specialist neurosurgeon, Herman Jacobus Edeling, forms part of a bundle of documents of more than 700 pages. Dr Edeling often testifies as an expert witness in court cases. (He testified last week that Bosasa State Capture accused Angelo Agrizzi has neurological brain damage and is unable to participate meaningfully in court proceedings). 

I looked at the documents to find out what the legal basis for FASA’s alleged review application was, and what evidence it provided in support of its application. I am obviously not qualified to assess the veracity of all the claims and arguments advanced in the documents – I will leave that to the experts in the field – but am in a position to assess the soundness of the legal arguments on which the application is based, and to establish whether the documents, on its face, provide any factual basis for the review.

Legal basis

The first striking aspect of the founding affidavit is that it makes no attempt at setting out the legal basis for the purported challenge. It claims the review is based on all but one of the grounds of review listed in section 6(2) of the Promotion of Administrative Justice Act, and, in the alternative, on the principle of legality. It also claims the rights in sections 10, 11, 12 and 33 are “implicated” in the case. But as this is the sum total of the “legal analysis” contained in the document, it is impossible to know what the legal basis of the review might be.

FASA may, however, have brought the case for reasons other than fighting and winning the case in court. As in all review proceedings, FASA would be entitled to the full record on which the decision by Sahpra to register the Pfizer vaccine was based. For any group advancing a conspiracy about a vast, global cover-up, such a record would provide a wealth of information that could be misrepresented, distorted or otherwise exploited to promote their conspiracy. The affidavit hints at this, where Edeling summarises the purpose of the application as follows:

“This application is a call on Pfizer to explain its conduct for public scrutiny. It is also a call on the South African regulators and Government to hold Pfizer to account and to act in the best interests of the South African public. As a last resort, the applicant humbly requests this Court to come to the aid of bodies like the applicant, in the interests of the health of the South African public.”

Where’s the ‘evidence’?

The second striking aspect of the founding affidavit is that it makes many claims that contradict the scientific consensus, but makes no effort to back this up by linking it to supporting “evidence”. As the stated aim of the case is to challenge a tide of “misinformation” concocted in a vast global conspiracy, by people who glibly turn a blind eye to the killing of hundreds of thousands of people, one would think that Dr Edeling would at least have made an effort to point the court to the sources he relies on. Some of this “evidence” is contained in the voluminous appendixes, but one looks in vain for banks of footnotes that direct the reader to the specific study or article, and the specific page, that support any of the claims. 

Read more in Daily Maverick: Anti-vax appeal – court asked to stop South Africa’s Covid vaccination campaign pending an investigation

A third striking aspect of the founding affidavit is the speculative tone in parts of the document. (“I have reason to believe”, “one of the many questions that arise”, “because of the seriousness of the accusations levelled at Pfizer”, “research has shown”, “many medical practitioners have reported” and so on.) In essence the affidavit asks the court to trust the applicant’s “experts” (whose credibility has been questioned by those who are actual experts in the field), and, above all, to trust Dr Edeling, who asks the court to trust that the:

“opinions I express in this document are based on conclusions I have drawn from a careful consideration of available facts. Where I reference peer-reviewed journal articles, I ask the Court to accept them on the basis that I have satisfied myself of the correctness of the views and conclusions expressed in those articles, given that I have carefully scrutinised and assessed them by applying my aforementioned skillset.”

Standard of proof

But for me the most striking aspect of the affidavit is its failure to hold the applicants to the same standard of proof it demands of others. This is not surprising, as its case about the dangers of the vaccine implodes if one applies the standard of proof that Edeling insists is required to determine causality between the vaccine and any adverse effects suffered by those who got vaccinated. 

For all we know, the adverse event could have been caused by browsing an old collection of Scope pin-up girls with the nipple caps digitally removed.

Dr Edeling makes much of the fact that in the six-month trial data provided by Pfizer, the death of one of the participants had an unknown cause, while the report of the data concluded that “none of the deaths were considered to be related to” the Pfizer vaccine. 

Dr Edeling (reasonably, in my view) complains that the authors of the report “give no details as to how they established that there was no causal link between the deaths and the vaccines. Autopsies, together with detailed review of medical records, would have been the objective mechanism by which to determine causality.”

Yet, a substantial part of the affidavit quotes from a report by a “computational biologist”, Dr Jessica Rose, who relies on data downloaded from the US-based Vaccine Adverse Events Reporting System (VAERS), as “evidence” that the Pfizer Covid-19 vaccine “is already showing drastic increases (of hundreds or thousands of percentage points) in adverse events such as cancers, deaths, disability, fertility issues, and adverse events in children compared to all other vaccines over a decade-long period”. 

VAERS is an early warning system where doctors, nurses, healthcare workers and, yes, people receiving vaccines (or their families), can report adverse events suffered by individuals who have been vaccinated. Anyone with access to the internet, email or a telephone can report anything to VAERS. While VAERS provides a handy tool for researchers to explore possible problems with a particular vaccine, it does not provide evidence that a particular vaccine caused a particular adverse event since each report is not investigated (using an “objective mechanism”) to establish whether the vaccine caused the adverse event.

To illustrate, imagine a system was created where people could report adverse events linked to eating a KFC Streetwise Two meal. The reports are checked for accuracy (did the reporting person eat a Streetwise Two, and did they suffer an adverse event in the days that followed?), but this would not provide evidence that the KFC meal caused the adverse event. For all we know, the adverse event could have been caused by browsing an old collection of Scope pin-up girls with the nipple caps digitally removed.

In a court of law, Dr Rose’s report is therefore going to be of no assistance – at least not to the applicants. The legal absurdity of it all becomes clear when one peruses “case studies” of vaccine injury presented by two South African doctors. For example, Dr Mare Olivier recounts the story of a 57-year-old patient who “began presenting symptoms a mere four days” after getting his first vaccination. For unknown reasons he was only diagnosed with cancer a year later and tragically passed away in January this year. 

Read more in Daily Maverick: 

DA Western Cape’s Beverley Schäfer under whip after asking UK anti-vaxxer to speak at legislature

DA leaders should follow Premier Winde’s example on vaccines

According to Dr Olivier, “the sudden and unexplained onset of this patient’s condition, together with its rapid progression, and the close temporal association to the vaccine led me to conclude that this patient was injured by the Pfizer vaccine”. Needless to say, an expert witness who presents this kind of “evidence” in a court of law is going to have a torrid time, to say the least, and the professional reputation (if any) of such a witness will be destroyed under cross-examination. The fact that Dr Olivier seems blissfully unaware of the potential peril she is in (assuming the case goes to court and assuming the court allows oral evidence to be presented), could be read as either touchingly naive or as alarmingly ignorant. 

There are many other technical reasons that this case is a non-starter (Plascon-Evans rule anyone), and I would be surprised if it ever reaches the courts. In any event, it is obviously not in the interest of anti-vaxxers to have their claims subjected to the discipline of a court process requiring the production of evidence, not conjecture. 

But the alleged filing of court papers is already being celebrated by anti-vaxxers across the world as evidence that the tide is turning against science and against the experts who base their views on the best available evidence, and I have no doubt that the mere filing of these papers will cause immense harm. DM

Pierre de Vos is the Claude Leon Foundation Chair in Constitutional Governance and Head: Department of Public Law, at UCT.