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

For them, the victory might have come too late, said Zackie Achmat of the Treatment Action Campaign, the organisation that challenged official policy on treating HIV-positive mothers.

Achmat was commenting after the Constitutional Court handed down what a number of human rights lawyers have described as one of its most important decisions yet.

In terms of the judgment delivered on Friday, the state's policy on providing nevirapine to mothers giving birth at public institutions was found to be unconstitutional as it did not fulfil the healthcare and other guarantees in the Bill of Rights.

Achmat said his organisation felt vindicated by the court's decision, adding: "We call on the government to work with us in making comprehensive HIV care a reality for all."

The judgment represents a comprehensive defeat for the government. Not only was its fiercely defended health policy declared unconstitutional on key questions related to combating the spread of HIV/Aids from mother to child, but it also lost its challenge over the court's right to intervene on the question.

Responding to the judgement, the Minister of Health, Manto Tshabalala-Msimang, put on a brave face, saying the government "accepts" the ruling of the court, and that the judges had "confirmed the approach" of her department in planning to extend the availability of nevirapine.

She also welcomed the fact that the court said there was no reason to doubt the integrity of the government regarding the implementation of court decisions.

The state had appealed against a ruling by the Pretoria High Court that the policy of providing nevirapine only at a few selected sites was unlawful, and that it had to provide the drug at all state birthing institutions where the facilities exist to do so.

The state claimed that the court's ruling infringed the key principles of the separation of powers, and that the judiciary was trespassing on areas that were the prerogative of the executive.

In its judgment, the Constitutional Court unanimously rejected all the state's contentions.

The court found the state had not met its constitutional obligations, and ordered that, to do so, it should remove the restrictions preventing nevirapine from being made available at public hospitals and clinics that are not research and training sites.

It found that there was no reason why the state could not continue to collect data and closely monitor the use of nevirapine at its chosen pilot sites.

But, at the same time, it should provide the drug at its other birthing institutions where the facilities exist to do so.

The state was also ordered to take reasonable measures to extend testing and counselling throughout the public health sector to facilitate the use of nevirapine.

The judgment shows the court at its most assertive so far, particularly on the issue of separation of powers. It clearly shows that the court will hold government to its constitutional duties.

Rejecting the argument that the court could not make orders that would have the effect of altering policy, the judges found that this would in fact be the court's obligation if the Constitution were being infringed.

The court also awarded costs against the state.

The judgment develops the law in a number of important areas, but human rights lawyers will peruse it carefully to see what it says about the nature of socio-economic rights in the Constitution. There had previously been a view that these rights were not implementable, and represented "aspirations" only.

This week's case, based squarely on these rights, was in a sense a test case.

Geoff Budlender, of the Legal Resources Centre and a member of the legal team appearing for the Treatment Action Campaign, said the court's finding left no room for doubt: "The court found it could hold the state accountable for not realising these rights, and that shows that these are real rights for real people - especially for the poor."
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