South African Press Association (Johannesburg) - May 6, 2002

Those opposed to the government's view that the anti-retroviral drug nevirapine, which was registered in April 2001, should be used to prevent mother-to-child transmission of the HI virus told the court the government was not taking South

Africa's Aids epidemic seriously enough, or acting with enough urgency.

The State has argued that it is serious about combating Aids, but that the long term effects of the anti-retroviral drug nevirapine were not known and that its safety and efficacy had to be tested via pilot sites.

It has met with a barrage of dissent from the Treatment Action Campaign (TAC), which initially took the government to court on this issue in August, and three "friends of the court" -- the University of the Western Cape's Community Law Centre, the Institute for Democracy in SA (Idasa) and Cotlands Baby Sanctury.

"Death is different," the TAC's senior counsel Gilbert Marcus said, arguing on Friday.

"This is a case in which thousands of babies who are born, die in misery. A single dose (of nevirapine) can ensure them a life of health and well-being," said Wim Trengove, senior counsel for the Community Law Centre and Idasa.

"The sheer weight of the gravity of harm (for the child born HIV-positive) renders unknown and unspecified long-term risks negligible," counsel for Cotlands Baby Sanctuary, Susie Cowen, argued on Monday.

Cowen argued that children born with HIV risked losing their parents, or a parent, to the virus, through ill health or death and also risked "abandonment" if they were put up for adoption. This was because prospective adoptive parents were less likely to apply to adopt sickly babies which were likely to die at an early age. There was also general discrimination against HIV-positive people.

Cowen argued that the State had a duty to, at least, take measures to ensure all citizens had access to basic health care and that this included the provision of an anti-mother-to-child transmission programme.

On Thursday, senior counsel for the government Marumo Moerane said the government was not prepared to provide nevirapine in the public sector unless it could provide a "full package" of services, including testing, counselling, monitoring and breast milk formula. The formula is necessary because breast feeding can cause the transmission of the HI virus. The State was not able to extend its perinatal anti-HIV programme to provide anti-retrovirals because it could not yet provide this full package, he argued.

Arguing on Friday, Trengove said this approach was flawed because testing, monitoring, counselling and breast milk formula should already be in place. "They are the A B C of any (anti-)mother to child transmission programme... These should have been in place long before nevirapine appeared on the horizon," he said.

Trengove argued that the fact that "the package" referred to by Moerane was not in place when nevirapine was registered in April 2001 constituted a pre-existing flaw in the government's programme.

He said the State had a constitutional duty to ensure that everyone had physical and economic access to basic health care.

Probed about the practicalities of this suggestion, he answered that there were obvious cost constraints, but that the government had to work towards a situation where this was true for all South Africans.

"Not providing (anti-retroviral treatment) is a violation of the right to dignity. It says that the mother and baby are not worthy citizens," Trengove said.

Moerane on Monday countered that the State "obviously" aspired to meeting all citizens' constitutional rights in full, but that money was a problem.

"All (constitutional obligations) are tied to the availability of resources," Moerane said.

Chief Justice Arthur Chaskalson interrupted: "But as I understand it, the provision of nevirapine... does not present a financial problem... (it) can only be the collateral resources of counselling and testing. ...Isn't counselling and testing standard treatment?" asked Chaskalson.

Moerane said yes.

Chaskalson then went on to ask: "Considering the government first established an anti mother-to-child HIV transmission policy which included counselling and testing in May 2000, what additional spending is necessary to include nevirapine?"

Moerane repeated the government stance on a "package of care."

Judge Ben du Plessis interjected: "But the package is already there."

Moerane admitted this but said it took time to implement government policy, and additional training was needed to introduce nevirapine.

The court also heard argument from David Unterhalter, senior counsel for KwaZulu-Natal premier Lionel Mtshali, on the State's separate application for leave to appeal against a decision by the Pretoria High Court to remove KwaZulu-Natal health MEC Zweli Mkhize as a respondent in the first application. Mtshali, when the matter was being heard in the High Court, took over the litigation because he contended that Mkhize had not properly represented the province's stance on the matter. The High Court replaced Mkhize with Mtshali as a respondent.
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