Sunday Times (Johannesburg) - Sunday 07 April 2002
Carmel Rickard

But there was a second crucial issue never far from the minds of those listening to the argument - can the state be allowed to disregard a court order simply because it doesn't like what it's been told to do?

Both elements were strongly canvassed during Wednesday's hearing, for some of the time under the eye of the Minister of Health, Manto Tshabalala-Msimang. She arrived late, then sat in stony silence, sometimes taking notes, sometimes holding her head in her hands, and she left early.

Perhaps it was mere coincidence, but her departure coincided with a robust round of questions from the court to her legal counsel, Marumo Moerane SC, and some derisive snorts from the public at his response.

Many people are angry and puzzled about the government's bizarre attitude to the provision of nevirapine to pregnant women to prevent mother-to-child transmission of HIV/Aids. But many are also rightly anxious about the meaning of the government's constant attempts to thwart the Pretoria High Court's order that it "execute" the terms of the judgment against it, and provide nevirapine to pregnant women under specified conditions.

There has been a clear impasse between the executive and the judiciary over the issue, raising concern for future relations between these central elements of government.

The most telling exchange on this question came deep in the afternoon session, during a discussion about the need to bring Health Department "protocols" into line with the Constitution and court orders.

Moerane was asked why he was so worried about doctors prescribing nevirapine without the requisite departmental permission. Surely, commented Judge Lawrie Ackermann, the issue was that doctors should obey a court order and the Constitution, even if it meant exceptions to protocols and procedures. "Court orders must be obeyed," he observed.

Moerane replied with his most crucial line of the day: "That is the problem: the court order orders us to do something we think is wrong", to which Judge Richard Goldstone instantly shot back: "That is what court orders always do".

Earlier, Moerane indicated that the state's resistance to compliance with the order was based on grave considerations. It would be wrong to provide nevirapine more widely than the chosen test sites, he said, because monitoring and research were not far enough advanced. The drug and the counselling that went with it had to be provided in a proper, planned way.

On Moerane's suggestion that women outside the "pilot sites" could not be given access to the medication at this stage, Judge Albie Sachs commented: "What one is asking for is a generation of mothers to be sacrificed in the name of scientific planning. Isn't that too much to ask?"

The state also argued that if doctors were permitted by the court order to prescribe nevirapine when they believed it was in the best interests of the patient to do so, there would be indiscipline in the ranks.

Judge Johann Kriegler wanted to make sure he understood: "Do you say that the case you are making is a loss of departmental discipline?"

Moerane replied: "We say it is subversive of good governance in the Department of Health."

The judges clearly understood the significance of the issues before them, coming out of recess to hear the appeal and giving a ruling the very next day - together constituting unprecedented behaviour by the court.

The court said that the decision ordering that the execution order be complied with did not in any way prejudge next month's appeal. This will deal with the correctness of the Pretoria High Court's order that nevirapine be provided countrywide.

But this week's swift action has important consequences nevertheless - it means that over the next few months at least, many infants otherwise denied a chance at life could survive; and the judges have reasserted judicial authority on the question of whether the government may refuse to obey an order simply because, as Moerane put it, "the court orders us to do something we think is wrong".

Short history of the case

December 14 2001: Judge Chris Botha of the Pretoria High Court rules in the dispute between the Treatment Action Campaign and the Minister of Health. He finds that the government has a duty to provide nevirapine to pregnant women who are HIV-positive, giving birth in state institutions, where it is medically indicated, and where there is capacity to do so.

He rules against the present system of providing the medication only at certain "pilot sites", and orders that the government present an outline of how it plans to extend provision of the medication to its birthing facilities countrywide.

The state does not implement the order, and on March 1 2002, asks Judge Botha for a certificate to appeal to the Constitutional Court. At the same time, the Treatment Action Campaign asks that the judge rule that part of his order be "executed" by the state, pending the hearing of the appeal by the Constitutional Court on May 2 and 3 2002.

March 11 2002: Judge Botha grants the certificate allowing his original judgment to be considered by the Constitutional Court, but also orders that a crucial section of his original judgment be implemented pending the appeal. The state gives notice that it will also appeal against this "execution" judgment.

22 March 2002: Judge Botha hears leave to appeal on this question, and on March 25 again rules that his original order be implemented. In its opposition to this ruling , the state indicates that it will continue appealing in this way, each time Judge Botha says the state must obey his "execution order". After his March 25 ruling, the state files another urgent appeal with the Constitutional Court - this time against the judge's decision that, pending the first appeal due next month, sections of the original judgment be implemented.

April 3 2002: The Constitutional Court hears argument on the question of whether the state may appeal against the ruling that it "execute" Judge Botha's ruling, and on April 4 dismisses the appeal, deciding that the state has to obey. The court will give full reasons for this decision as part of its judgment when the whole issue is argued next month.

What this week's ruling means

THE unanimous decision of the Constitutional Court means that the state may no longer avoid complying with the order by the Pretoria High Court. The ruling should defuse the tension that had developed between the government and the judiciary over the state's thwarting of the court order.

The Constitutional Court has, however, made it clear in its April 4 ruling that the order is a temporary one and will apply only until the decision of the Constitutional Court on the appeal due to be heard by that court on May 2 and 3.

The court ruling on Wednesday also stressed that the temporary order does not require "a wholesale extension of nevirapine" outside the government's pilot sites. This in turn means that complying with the order will not result in extraordinary unanticipated expenditure by the state.

What this implies is that, pending the Constitutional Court appeal, the state must in the meantime immediately obey Judge Chris Botha's order to make nevirapine available in public health facilities where, in the opinion of the doctor attending the pregnant woman concerned and in consultation with the medical superintendent, the medication is indicated and where "preconditions for its prescription already exist".

In the real world this could mean that a number of state medical institutions will still not provide the medication because "preconditions" for the prescription of nevirapine do not exist.

However, the order should also provide some protection for doctors who buy the drug out of their own pockets to provide for their patients: in several cases the state has threatened such doctors and the Treatment Action Campaign made it clear during argument this week that their legal action was at least partly directed at ensuring these medics could continue to act conscientiously without facing disciplinary action.

The 18 pilot sites

EACH of the nine provinces operates two pilot sites. These are connected to a number of "access points":

GAUTENG: Natalspruit (Natalspruit Hospital and J Dumane Community Health Centre) and Kalafong (Kalafong Hospital and Pretoria West Midwife Obstetric Unit).

WESTERN CAPE: Guguletu (Guguletu MOU and eight clinics in the Nyanga district) and Paarl (Paarl Hospital, T C Newman Community Health Centre and 17 surrounding clinics).

LIMPOPO: Mankweng (Mankweng Hospital and 19 clinics) and Siloam (Siloam Hospital and six out of 17 clinics).

MPUMALANGA: Shongwe (Shongwe Hospital and nine out of 23 surrounding clinics) and Evander (Evander Hospital, Legohang Community Health Centre and Embalenthle clinic).

FREE STATE: Virginia (Virginia Hospital and eight clinics) and Frankfort (Frankfort Hospital and eight clinics).

KWAZULU-NATAL: Durban (King Edward VIII Hospital and KwaMashu Polyclinic, Prince Mshyeni Hospital and feeder clinics in sections D and K, Umlazi) and Pietermaritzburg (Grey's Hospital, Northdale Hospital and Sobantu and Northdale clinics, Edendale Hospital and Imbalenhle and Taylors Halt clinics, Church of Scotland Hospital).

EASTERN CAPE: East London Complex (Frere Hospital and 29 clinics, Cecilia Makiwane Hospital and 19 clinics) and Umzimkulu subdistrict (Rietvlei Hospital and 12 clinics).

NORTHERN CAPE: Galeshewe (Galeshewe Day Hospital, Kimberley Hospital, Masakhane clinic and Roodepan clinic) and De Aar (De Aar Day Hospital, Motana clinic, Amalia clinic, Nomzwakazi clinic and one community health centre).

NORTH WEST: Thlabane (Rustenberg Hospital, Thlabane Health Centre and four clinics) and Lehurutshe (Lehurutshe District Hospital and 21 surrounding clinics).

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