Important note: Information in this article was accurate in 2002. The state of the art may have changed since the publication date.
Mail & Guardian (Cape Town, Johannesburg) - 05 July 2002
Ben Maclennan, Fienie Grobler
Chief Justice Arthur Chaskalson delivered the judgment, saying there was a pressing need to ensure that the loss of lives was prevented.
"The anxiety of the applicants (the Treatment Action Campaign) is understandable because one is dealing here with a deadly disease," he said.
Chaskalson said the order the Constitutional Court had made would require the government to revise its policy.
A comprehensive and co-ordinated programme was necessary to help pregnant women combat HIV, and counselling and testing facilities should be provided at hospitals and clinics.
He said doctors should be permitted to prescribe nevirapine in consultation with the hospital superintendent. The government has been ordered to pay the costs of the application.
The TAC brought the government to court in December last year and Pretoria High Court Judge Chris Botha made a ruling which included an order that the Minister of Health and all the provincial MECs, except the Western Cape's, extend their antiretroviral nevirapine programmes beyond the existing 18 pilot sites.
On March 11, Botha allowed the government to apply to the Constitutional Court for leave to appeal against that order.
The judge also granted an execution order, which meant that the government should go ahead with the nevirapine roll-out pending the outcome of the Constitutional Court appeal bid.
The minister and MECs subsequently asked Botha to also allow them to apply to the Constitutional Court for leave to appeal against the execution order.
Botha refused this and granted a counter-application by the Treatment Action Campaign and two co-applicants that the order should be executed.
However, the Minister and MECs lodged an application with the Constitutional Court against both the latter order and the one of March 11.
The government was ordered by the court to roll out its anti-retroviral programme in the interim.
Geoff Budlender, senior counsel for the TAC said on Friday that he had always thought their case was "fairly strong".
"This is a judgment that saves lives... it is also a victory for pregnant women with HIV and it's a victory for the constitution. It shows that our social and economic rights are real and powerful. I am very happy, I hoped for this."
Special adviser to Health Minister Manto Tshabalala-Msimang, Patricia Lambert, said the judgment was "workable".
"The Minister will study the judgment during the day and will issue a more detailed statement."
Asked whether she was disappointed, Lambert replied: "I do not think that's a word that I would apply, there have been tremendous changes in government in dealing with HIV and Aids."
Meanwhile, Aids activist Zackie Achmat welcomed the court ruling, but says it will not change his personal decision not to take them.
Achmat, who is ill and reportedly close to full-blown Aids, says he will not take ARVs until the government has begun to make them available to all South Africans for therapeutic purposes.
He is so weak that he has turned down an invitation to speak at next week's international Aids 2002 conference in Barcelona, Spain.
"Obviously we're elated; we feel vindicated," he said from his Cape Town home after the judgement, which denied the government leave to appeal against a high court ruling forcing it to provide ARVs to stop mother-to child transmission of the HI virus.
"We call on the government to work with us in making comprehensive HIV care a reality for all," Achmat said.
He said the ruling gave him confidence to continue pressuring the government.
It also gave him hope that the government would change its position on making ARVs available as therapeutic treatment for all HIV-positive people, not just for mother-to-child transmission prevention.
He has said previously he will not take the drugs -- which could save his life -- before the government has agreed to at least pilot projects for ARV treatment in state hospitals in every province in the country. - Sapa
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