Inter Press Service - December 19, 2001
Anthony Stoppard and Farah Khan

Health Minister, Manto Tshabalala-Msimang, said government would appeal the judgement in the Constitutional Court.

"We consider it critical, in order to create certainty in the public policy domain, to seek the wisdom of the Constitutional Court," she said. Civil society had hoped government would accept last week's judgement and not take it on appeal.

At the same time government extended an olive branch to the front of non-governmental organisations (NGOs), trade unions and churches which had assembled to support the court action of the Treatment Action Campaign (TAC) last month.

The TAC took government to court to secure an order forcing government to extend a treatment programme to HIV-positive women and new-born babies. Tshabalala-Msimang also said government would meet in January to assess its existing mother to child transmission prevention programme and would consult with civil society on future plans.

Officially, there are 21 test sites carrying out pilot projects - an effort regarded as inadequate and too laborious to cope with the growing AIDS menace. Government's effort at peacemaking is likely to be cold comfort.

In a widely welcomed step, High Court judge Chris Botha ruled government must make the anti-retroviral drug, Nevirapine available to HIV-positive pregnant women and new-born babies. The drug has been shown to reduce the chances of transmission of HIV and AIDS from mothers to their babies.

The drug given at birth is also thought to half a baby's chance of contracting the virus.

It is estimated that as many as 70,000 children, a year, are infected through mother-to-child transmission of HIV.

Judge Botha said women who are treated with the drug should be appropriately tested and counselled, and that medication should also be made available to their babies.

Government must also supply baby formula to HIV positive mothers, to eliminate the need for breast-feeding, which may transmit HIV to their children.

The court also ruled that the government must put a national programme in place to reduce HIV transmission from mothers to children.

Details of the programme needed to be lodged by the end of March 2002. The court deadlines no longer apply when an appeal is lodged.

Now, the Constitutional Court is not likely to be asked to rule on whether or not government should provide the AIDS fighting drugs, but on a secondary legal question. This queries the extent to which the judiciary can make public policy.

"This judgement could have far-reaching implications in defining our constitutional democracy and in shaping the state's responsibility for the delivery of social services," said the Health Minister.

She denied that the appeal was a delaying tactic. If the judgement was not clarified, she said, it could "throw executive policy-making into disarray and create confusion about the principle of the separation of powers".

Government also argued that it does not have the resources to make the drug widely available, to monitor its effects, and to make sure it is used correctly by people being treated with the medication.

It is estimated that up to 4.7 million South Africans are living with HIV and AIDS.

In his judgement, Botha said government was contravening the Constitution that guarantees the country's citizens the right to healthcare. He described government's refusal to make the drug available as: "an unjustifiable barrier to the progressive realisation of the right to health care."

Botha rejected government's concerns about the cost of the drugs by pointing out that the manufacturer of Nevirapine, Boehringer Ingelheim, has made a public offer to supply Nevirapine to South Africa's health authorities free of charge, for five years.

The appeal is likely to re-ignite tensions between civil society and government.

TAC spokesperson Mark Heywood said that if government had responded to the ruling immediately, as many as 50,000 lives could be saved next year.
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