Inter Press Service - November 28, 2001
Farah Khan

Judge Chris Botha has said he will pass judgement before December 25 on whether he will order government to provide an Aids-fighting drug, Nevirapine, and to set up a national plan to prevent mother to child transmission.

Every year, an estimated 70 000 babies are born HIV-positive when they contract the virus from their mothers, either during birth or when breast-feeding. About 20 000 die annually from Aids, according to the Treatment Action Campaign (TAC), which, together with 200 doctors who work in the public service, took the government to court this week.

The case is being fought on constitutional principles - the organisations and doctors want to secure the babies right to life. This week's case is a highly emotive one and has generated enormous public sympathy and debate. The TAC made a compelling argument - it said that Nevirapine (which it wants government to provide in all public hospitals) had been registered with the Medicines Control Council and was a "safe and affordable" option to prevent mother to child transmission.

Manufacturers Boehringer-Ingelheim had offered to provide it free to the South African government for five years, but the state had not yet acted on the company's offer. Studies in Uganda had shown that half a teaspoon of Nevirapine syrup given to a baby within three days of birth, improved its chances of not contracting HIV by 50 percent. Last year, former President Nelson Mandela was told about such evidence and he proposed a nationwide treatment plan. But it has come to nought and after years of lobbying and negotion, the TAC took its battle onto the streets and into the courtroom.

Monday felt like the tape had been reeled back to the anti- apartheid struggle as government felt the onslaught of mass anger. In Cape Town, people living with HIV marched on Parliament to amplify the call being made in court in Pretoria.

They carried crosses, to symbolise the babies' who had died, and they laid the crosses at Parliament's gate. In Pretoria, the mothers of other babies' led a march to the Health Department to hand in a petition.

The case is supported by a coalition of religious leaders and by the major trade unions. Arguably, government has not faced such a force of opposition since it took power in 1994.

Ahead of the case, government tried to limit the damage by drawing attention to the 18 sites in nine provinces, where it has sanctioned pilot projects with Nevirapine. An explanation sometimes forwarded for the state's tardiness in expanding the programme is that President Thabo Mbeki is an Aids sceptic (he questions its founding equation - that HIV causes Aids) and has publically questioned the effectiveness of anti-retroviral drugs.

In court, the government advanced its explanation as follows. "Public pressure for a cure and quick solutions, while understandable, could contribute to hasty decisions to assuage the sentiments of the public with negative consequences," warned the Health Department director- general Ayanda Ntsaluba in court. He said government was treading cautiously because not enough is known about the drug and he said that administering a drugs programme was about a lot more than just providing a tablet or syrup.

The calls by the TAC and others "ignore vital infrastructural and operationsal considerations which accompany treatment, such as volunatry counselling and testing and the monitoring and evaluation of the mother and child to esnure effectiveness," he said in court papers.

But the Western Cape province - run by the opposition New National Party - has a programme in place to prevent mother to child transmission and this was shown to the judge. Impressed with the programme, he kept referring to the provincial programme, saying there was a precedent.

In a heated two-day hearing, two of the countries top lawyers traded arguments. TAC lawyer Gilbert Marcus neatly used government's own phraseology to make his point. He said the epidemic posed an "incomprehensible calamity" and said SA was in "the grip of a catastrophe". The limited pilot projects discriminated against the poor since the drug was widely available and was being used in the private sector.

In turn, government said that the TAC case was "simplistic, ill- informed and ignored vital issues such as the availability of resources". While he may not have meant to make it sound so cruel, lawyer Marumo Moerane put his case bluntly. "By allowing doctors in the public sector to prescribe Nevirapine at their discretion, budgets would be strained...". A balanced budget, it seemed, had come to trounce life in the public service. The ball's now been left in the judiciary's hands to see if this should be the case.

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