South African Press Association (Johannesburg) - May 1, 2002

The Constitutional Court will hear the appeal of Health Minister Dr Manto Tshabalala-Msimang and seven health MECs against a Pretoria High Court judgment ordering them to make the drug available to all HIV-positive pregnant women where medically indicated and where the women concerned had been tested and counselled.

In December Judge Chris Botha granted an application in this regard by the TAC, the Children's Rights Centre and paediatrician Dr Haroon Saloojee of the Save Our Babies campaign.

The judge ordered the government to extend its existing nevirapine programme of two pilot sites per province.

He also instructed government to draw up a comprehensive national programme to prevent or reduce MTCT of HIV, including the provision of voluntary counselling and testing, and where appropriate, nevirapine or other medicine, and formula milk for feeding.

The government had to report back on its progress with the plan by March 31 this year.

After the judgment was delivered, government applied for leave to appeal to the Constitutional Court. Botha granted the leave. At the same time he granted an application by the TAC and the two other applicants for an execution order. That meant that pending the Constitutional Court appeal the government had to provide nevirapine for HIV-positive women in state hospitals where it was medically indicated and where testing and counselling could be done.

The government also asked the Constitutional Court to overturn the execution order, but was refused. The court said it would give reasons for its ruling after this week's hearing, where the appeal against the original order is to be heard.

The government contends that the original order infringes the principle of the separation of powers. It also maintains that its MTCT programme is consistent with its constitutional obligations. The pilot projects are intended to help understand the operational demands of running a successful programme and to research the safety and efficacy of the drug and whether it promotes the development of drug-resistant strains of HIV.

As its knowledge expands and resources allow, government will extend the programme to other public hospitals.

The TAC opposes the appeal, saying that even without feeding supplements or other interventions, nevirapine reduces the risk of MTCT of HIV.

The government's refusal to make the drug widely available is unconstitutional, it says.

Three organisations have joined the case as amici curiae (friends of the court) in support of the High Court order. They are the Community Law Centre of the University of the Western Cape, the Institute for Democracy in South Africa and Cotlands Baby Sanctuary.

The government has decided to go ahead with the appeal case despite its anti-retroviral policy turn-around earlier this month.

Following a Cabinet meeting, Tshabalala-Msimang said plans were on track for a universal roll-out of nevirapine to HIV-positive pregnant women, she hoped from next year.

It was also announced that rape victims would be able to get anti-retroviral drugs at state hospitals as soon as possible, probably within the next six months.

The issues the Constitutional Court will have to decide on, include:

-- Whether the original Pretoria High Court orders constitute making policy on behalf of government and if so, whether that violates the separation of powers;

-- Whether the government's programme comply with its constitutional obligation to take reasonable measures, within available resources, to progressively realise the right to health care, including reproductive health care;

-- Whether the existing programme discriminates against those pregnant women and their babies who are dependent on public health care and are unable to go to an existing access point for treatment as opposed to those who are able to do so;

-- Whether it results in discrimination against the poor, and indirectly against black women, given that private doctors may generally prescribe nevirapine where medically appropriate, but doctors at state hospitals outside the pilot sites may not do so;

-- Whether it is a breach of the constitutional rights of the child, including the child's right to life and basic health care; and

-- Whether the programme violates certain other constitutional rights, such as the rights to life and dignity and the right to make decisions concerning reproduction.
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