In the following paragraphs, we familiarize the reader with the legal environment related to the use of human biological material for research in South Africa and with the SA MTA`s legis report. After providing this basic information, we move on to the analysis of the SA MTA in the main part of the article. The transfer of statutory assets can make the securitization process much easier. The law allows the transfer of agreements without obtaining the agreement of a third party and without respecting the usual requirements for the transfer of agreements or with the possible delegation restrictions contained in the agreements themselves. In terms of timing, it is much easier to arrange for the transfer of agreements to be closed under the act. The transfer of agreements takes effect without further action as soon as it is registered in the trade register. The provisions of the ASA are not limited to the transmission of human biological materials, but contain rules for the transmission of associated data. In the MTA SA ( paragraph 2.13), human biological material and associated data are together called « materials » – the first letter is in capital letters to indicate that the word is used in the defined sense and not in its usual meaning. However, the Minister`s communication in the government bulletin board refers to « biological material » in tiny, indicating that these words must have their usual meaning.
It should also be noted that neither the notice nor its schedule (SA MTA) specify that the definitions in the schedule apply to the contract notice, which means that the supplier and recipient are legally required to use sa-MTA only if the transfer contains « organic materials » in their usual significance. In other words, if only the data is transferred, the parties are not required to use the MTA as a framework. Pending the full entry into force of POPIA, the exchange of genomic data is therefore not regulated. We propose that this issue be resolved by the Minister in an amended communication that refers to « human biological matter and related data » instead of « biological matter. » The condition of the « treatment restriction » provides that personal data can only be processed if there is a legal reason for processing ( sections 9 to 12). One of these legal reasons – and probably the only one applicable in health research – is the consent of the « person concerned » (researchers in the context of health research). Consent is defined as « any voluntary, specific and informed manifestation of the will in which enerther is authorized to process personal data » ( Section 1, addition of the note). Interest in asset transfer Some experts argue that the interest of the cedant and the purchaser in the transfer of assets under the law must be greater than that of the third party in preserving the freedom to choose its contractors.