Important note: Information in this article was accurate in 2001. The state of the art may have changed since the publication date.
Associated Press - Wednesday December 19, 2001
Mike Cohen, Associated Press Writer
The Pretoria High Court ordered the government Friday to institute a comprehensive program to reduce mother-to-child transmission of HIV and make the AIDS drug nevirapine available to HIV positive pregnant women.
The government will file its appeal to the Constitutional Court, said Health Minister Manto Tshabalala-Msimang.
She denied the appeal was an attempt by the government to obstruct the development of a program to prevent mother-to-child transmission of HIV.
"Rather it is aimed at clarifying a constitutional and jurisdictional matter which, if left vague, could throw executive policy making into disarray and create confusion about the principle of the separation of powers, which is a cornerstone of our democracy," she said.
An estimated 4.7 million South Africans - one in nine - are HIV positive, the highest number of any country in the world, and the government has come under fire for its haphazard and often confusing approach to combatting the epidemic.
Its decision to appeal the court ruling drew a fresh barrage of criticism.
"They are defending the indefensible," said Tony Leon, leader of the Democratic Alliance, the country's main opposition party. "It equals a death sentence for thousands of babies that could otherwise be saved." Studies show nevirapine can reduce the transmission of HIV from mother to child during labor by up to 50 percent.
The German-based pharmaceutical company Boehringer Ingelheim has offered free distribution, but the government argued that the drug's safety remained unproven and that it lacked the resources to provide follow-up treatment.
Distribution of the drug was restricted to 18 pilot sites.
Aids activists and a group of pediatricians sued the government to change its policy.
The government's decision to appeal was regrettable, said the Treatment Action Campaign, the Children's Rights Center and Save Our Babies, the three organizations that filed the lawsuit.
"Their legal grounds for the appeal - (that) courts have no right to make policy - demonstrate a profound misunderstanding of constitutional democracy," the organizations said in a statement. "Government action or inaction is not above the law."
If High Court Judge Chris Botha grants permission for the government to appeal his ruling, it could take the Constitutional Court up to a year to make a finding, depending on its availability to hear the case, said Debbie Pearlmain, a legal adviser to the health department.
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