As noted in the background section above, the NHA provides that compensation for the supply of biological material to human research must be limited to a reasonable cost and that any form of financial or other reward constitutes a criminal offence ( section 60, paragraph 4) (5)). As a result, some types of benefit sharing are clearly not legitimate options. In this context, SA-MTA could have provided useful guidance on the legally acceptable and ethically preferable content of an agreement on the distribution of benefits at the level of each research participant, its communities (if any), the health system and local researchers. We propose to develop guidelines on good practice in consultation with stakeholders. Labuschaigne M, Dhai A, Mahomed S, et al. Protection of health research participants: the South African agreement to transfer equipment. S Afr Med J. 2019;109:353-6. doi.org/10.7196/SAMJ.2019.v109i5.13803. Accordingly, SA MTA must be used whenever human biological material is transferred from the supplier to its recipient for research or clinical trials, and to bring the transfer under the jurisdiction of South Africa, at least one of the institutions is in South Africa. In a recent article on SA MTA, Labuschaigne et al.
suggest that SA MTA is only applicable in the case of export, i.e. when the supplier is in South Africa and the recipient is in a foreign jurisdiction . However, the Minister`s communication does not limit the application of SA-MTA to the export of human biological material, so it is sufficient to force the use of SA-MTA to either the supplier, the recipient or both, in South Africa. The SA MTA does not have a preamble, but correctly states, under the title “Objective,” that its objective is to “define a framework in which the parties participate in the transmission, use and processing of materials.” As a result, the ASA appears to be aimed at providing MTAs with minimal content and principles that fall within its scope. Beyond this statement, SAMTA gives no indication of its essential objectives. In addition to these practical questions, there is also the most fundamental question with regard to the question of legal personality; Contracting requires contractual capacity and, in turn, a legal personality. This requirement is problematic, however, since the vast majority of HRECs in South Africa do not have a legal personality.