South African Press Association (Johannesburg) - May 2, 2002

Arguing for the Treatment Action Campaign (TAC), Gilbert Marcus, SC, said the state's policy, at the time TAC took the government to court in August last year, left state doctors with an "utterly intolerable dilemma".

"(It was) asking a (state) doctor to take a conscious decision to allow a child to die, or face disciplinary action," he told the court's 11 judges.

The government is appealing against a Pretoria High Court judgment ordering the national Health Department to make the drug available to all HIV-positive pregnant women at state hospitals, where medically indicated and where the women have been tested and counselled.

Senior counsel for the government, Marumo Moerane, agreed that the issue at hand was one of life and death, and that this had to factor in the government's policy on the use of the drug.

The government has subsequently ordered that its nevirapine programme be extended to all state institutions for the benefit of rape victims, HIV-positive pregnant mothers and their babies and others needing the medicine.

Moerane submitted that this needed to be taken into account by the Constitutional Court.

He also argued that the TAC was premature in taking the government to court in August last year because the government was then just beginning its programme of testing the drug at several pilot sites around South Africa.

He said pilot sites were initially necessary because the long term effects of nevirapine were not known. He agreed that the government's decision not to give out the drug flew in the face of a World Health Organisation study which concluded that the positive benefits of a range of anti-retrovirals, including nevirapine, "greatly outweighed" any possible adverse effects.

The study also concluded there was no need to restrict the use of the drug to pilot sites.

Moerane said this was because the long term effects of the drug had not been considered by the study.

Justice Richard Goldstone replied that one dose was needed for a mother and one for a child, and asked: "What is the relevance of long term toxicity?" Moerane did not reply.

Justice Kate O'Regan pointed out that the study did, in fact, refer to a study on the long term effects of nevirapine.

Moving to another point Moerane said it had been necessary to ensure the state's nevirapine programme did not negatively impact on the state's obligation to provide basic health care to all South Africans.

"What could be more basic than a free drug that can save life?" asked Chief Justice Arthur Chaskalson.

Marcus, in turn, argued that it was the "utter rigidity and inflexibility" of the state's programme which had prompted the TAC's litigation.

"It drives doctors of conscience to do what their life's calling trained them to do and, in so doing, to take the law into their own hands," he said.

Marcus was referring to government statements earlier in the year that state doctors - not involved in the pilot site programmes who prescribed nevirapine, even if they paid for it themselves - would be disciplined.

Marcus said the state's attitude was "utterly intolerable" to state doctors' ethics, and was "nothing short of an assault on (the mothers') psychological integrity" and meant suffering and premature death for babies.

Marcus is to address the court on the second leg of the application on Friday -- on whether courts can make orders which effectively create or materially change state policy.

Moerane has argued that a judge does not have this authority and that the Pretoria High Court judge who made the order demanding that the government expand its nevirapine programme, in doing this, had made a policy decision.
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