Important note: Information in this article was accurate in 2002. The state of the art may have changed since the publication date.
South African Press Association (Johannesburg) - April 3, 2002
Senior counsel Gilbert Marcus, appearing for the Treatment Action Campaign (TAC) and two other parties, argued this in opposition to the government's application for leave to appeal an earlier Pretoria High Court execution order.
The order demands it provide nevirapine to state patients where it has the capacity while waiting for the outcome of an appeal against yet another Pretoria High Court order in the TAC's favour.
The initial order, given in December last year, orders a general widening of state patient's access to nevirapine. The drug is prescribed to HIV-positive pregnant mothers in an attempt to prevent mother-to-child transmission of the virus, for which there is no cure.
The Constitutional Court has convened during its recess to hear the application.
Marcus argued that nevirapine was "the closest (thing) we have to a vaccine" and that it was between 30 and 50 percent effective in preventing mother-to-child transmission of HIV.
He said that South Africans were, however, faced with a situation where nevirapine could not be provided, according to government protocol, outside the state's 18 pilot sites.
Senior counsel for the State, Marumo Moerane, earlier in the day explained that the drug was under government study to determine available and necessary resources, and the efficacy and effect of the drug.
He argued that extending the programme beyond the 18 official sites would jump the gun on these studies.
Marcus said the TAC had made its initial court application last year because of the government's approach to State provision of nevirapine.
"Even if there is capacity, or if the (pregnant) mother is prepared to pay, or the doctor is prepared to pay out of his own pocket (this is not allowed)," Marcus said.
He said a state sector doctor who had "whipped around" and paid to provide his patients with nevirapine had been labelled "irresponsible".
"Doctors who do so (prescribe nevirapine outside the pilot sites) are liable to discipline," Marcus said.
He dismissed the State's argument that there was no financial capacity for a full-scale roll out of a state nevirapine programme, saying University of Cape Town health economist Nicoli Nattrass had shown that provision of the drug would save government money.
The pressures of dealing with hundreds of HIV-positive babies were far greater, Marcus argued.
He also said it had never been the TAC's case that there should be a complete roll out of the drug programme "immediately".
"We accept the need for a phased approach," he said.
Marcus said interim execution orders, such as the order under argument, should not generally be appealable and applicants -- in this case the State -- would have to prove that "irreparable prejudice of some significance" would be caused if the execution order was carried out.
This echoed the sentiments of some of the judges who questioned Moerane during his submissions earlier in the day.
Moerane argued that the state would suffer irreparable damage through the chaos which he predicted would erupt in the public health system if the high court judgment stood.
"The demand for nevirapine on a national scale would put major pressure on government resources and undo all the good work which has been done," he said. Earlier he also argued that there would be irreparable harm caused to discipline in the public health sector and its protocols.
Marcus argued that the government's policy was unconstitutional because it discriminated against those not living in pilot site catchment areas. He said there would be massive "psychological devastation" caused to HIV-positive mothers living outside these areas.
"Saying to a mother, 'You can't get the drug,' is a form of irreparable damage," he said.
Marcus said some 70000 babies were born to HIV-positive mothers in South Africa each year and that nevirapine had been offered to the public health sector free of charge. It only cost R10 a dose anyway, he said.
Chief Justice Arthur Chaskalson, at the end of Wednesday's proceedings, asked counsel to return to the court, in Braamfontein, Johannesburg, on Thursday morning, in case the judges had further questions.
He did not indicate when judgment would be given.
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