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 16, 2002
Idasa's constitutional analyst Thabani Masuku told Sapa on Tuesday afternoon the organisation wanted to encourage a co-operative approach between the government and the judiciary.
"The case will determine not only the scope of the judiciary's intervention in socio-economic rights, but, equally the level of protection that must be given to these fundamental rights," he said.
The Constitutional Court will hear argument on May 2 and 3 on a Pretoria High Court order that the anti-retroviral drug, nevirapine, be made available to HIV-positive pregnant women in state hospitals with the capacity to do so. The ruling was in favour of the TAC, an Aids lobbyist group.
The government is appealing the ruling, made in December last year.
Health Minister Manto Tshabalala-Msimang at the time said the provision of nevirapine was not the only issue at stake. She expressed concern about the judiciary's authority over the government, and said the latter issue would also be tested in the Constitutional Court.
The TAC subsequently applied to the High Court in March asking that the government be ordered to provide the drug until the Constitutional Court hearing took place in May. Judge Chris Botha ruled that the government should carry out the execution order he gave in the TAC's favour pending the outcome of the May hearing.
In reaction to the latter judgment, the government applied for leave to appeal against the execution order. The Constitutional Court convened during its recess at the beginning of April to hear the application and refused leave to appeal. The Constitutional Court will now hear the initial appeal against the first Pretoria High Court ruling in December last year and Idasa has applied to intervene as amicus curiae (friends of the court).
Masuku said Idasa's main submission will be that the constitutional obligations placed on the executive to implement policy, could be achieved through the co-operation of other branches of the state, especially the judiciary. "I think the TAC has done a good job on the nevirapine issue. We will focus on the roles of the judiciary and the executive in the case," he said.
"The effect of our submission is not that we support the TAC per se, but that we believe the courts are constitutionally justified to grant that sort of strong remedy requested by the TAC in this case."
Masuku said it was vital that the executive was placed in a strong position to take and implement government decisions.
"Both organs of state are vital for the protection and implementation of socio-economic rights. This is the constitutional commitment; to enable these organs of state to constructively engage with each other...
"The winner must not be the government of the judiciary but socio-economic rights," he said.
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