afrol News, 17 April 2002

The South African Department of Health reportedly has sent a circular giving public hospitals and clinics the go-ahead to provide the AIDS drug that could prevent thousands of children from being born with the deadly HIV virus. The Department under its Minister Manto Tshabalala-Msimang has been the gravity centre of resistance to the popular demand of providing Nevirapine to HIV-positive pregnant women.

The South African organisation Treatment Action Campaign (TAC) on 14 December 2001 won a legal battle with the government in a Pretoria court, which ordered the Health Department to immediately start providing Nevirapine. The Health Department immediately appealed the court order to the Constitutional Court, claiming the Pretoria High Court had "stepped into the realm of policy-making in its original judgement."

Waiting for the Constitutional Court to decide on the legal battle between TAC and the government, the same court however ordered the Health Department to start distributing Nevirapine in line with the Pretoria court order. This has now reluctantly been followed up by Minister Tshabalala-Msimang. The Nevirapine circular outlines the circumstances in which Nevirapine can be prescribed, advises what information patients should receive before and after Aids testing, as well as the required dosages for women and their babies.

Civil society has welcomed the late move by Tshabalala-Msimang. Also the South African trade union COSATU - an ally to the government party ANC - today welcomed the Ministry's Nevirapine circular. COSATU had been sceptical toward the controversial AIDS drug policy followed by ANC and President Thabo Mbeki.

- This is a victory for logic, said COSATU spokespersons Patrick Craven and Moloto Mothapo. "It will save the lives of hundreds of babies who would otherwise have been born HIV-positive." The trade unionist earlier had stated they could "not agree with the ANC's view that Nevirapine cannot be administered outside the areas where the government's research programme is being carried out until the results of this research programme have been completed and the first babies whose mothers were treated with the medicines have reached 12-18 months." This is the principle argument of the ANC against the large row of criticisers.

The government however has not changed its view on Nevirapine and heading on with its legal battle against TAC in the Constitutional Court. The case is to be heard on 2-3 May, but TAC seems to have a strong case against the government.

This week, three South African high-profile organisations threw their weight behind TACs arguments and want to be heard by the Court, the local daily 'Business Day' reports. Cotlands, one of the country's best known baby sanctuaries, wants to "focus on the constitutional rights of children," claiming these are curtailed by denying the distribution of the life-saving drug. The South African Institute for Democracy (Idasa) wants to argue that "the judiciary does have a role to play in the fulfilment of these kinds of socio-economic rights," and that the Pretoria Court order thus did not step "into the realm of policy-making," as the Ministry claims. The Community Law Centre will argue that by not supplying HIV-positive women with Nevirapine, "government has failed to comply with its minimum constitutional obligations to guarantee people's rights to health."

Appeals have come from South African civil society and the international community for the government to drop the appeal case, but Minister Tshabalala-Msimang has made her mind up to go through with it. COSATU today urged the government to continue to distribute Nevirapine "regardless of the outcome of the Constitutional Court appeal" and urged "the government to expand its programme for distributing anti-retroviral drugs as quickly as possible." Several provincial governments have already broken with the national government on this issue and are distributing the drug freely.

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