Business Day (South Africa)
July 6, 2002

Both sides to the Constitutional Court dispute on the provision of nevirapine to prevent mother-to-child transmission (PMTCT) of HIV were claiming victory on Friday night.

Government said it accepted a judgment handed down earlier in the day, adding that the ruling confirmed its approach to the pandemic as articulated by Cabinet in April, particularly on the provision of nevirapine beyond the research sites.

In its judgment the court gave the final go-ahead for the distribution of nevirapine to HIV-positive pregnant mothers — almost a year after the battle between the government and Aids activists started.

Chief Justice Arthur Chaskalson, who delivered the judgment, said there was a pressing need to ensure that the loss of lives was prevented.

“The anxiety of the applicants (the Treatment Action Campaign) is understandable because one is dealing here with a deadly disease,” he said.

He said the government’s Aids policy was an infringement of the constitutional right to health care.

The Constitutional Court denied the government leave to appeal a Pretoria High Court order forcing it to provide anti-retrovirals to HIV-positive pregnant women and their babies in state hospitals with the capacity to do so.

“This is a judgment that saves lives. It is a victory for pregnant women with HIV and the constitution,” TAC senior counsel Geoff Budlender told Sapa shortly after the ruling.

TAC leader Zackie Achmat, who is reportedly close to full-blown Aids, welcomed the decision but said he would not take anti-retrovirals until the government started to make them available to all South Africans for therapeutic purposes.

“Obviously we’re elated, we feel vindicated ... We call on the government to work with us in making comprehensive HIV care a reality for all,” he said from his Cape Town home.

The TAC started the high court action against the Health Department’s Aids policy in August last year.

The policy states that nevirapine would only be made available at 18 pilot sites countrywide until the completion of its research period.

The Pretoria High Court ruled in December that nevirapine be made available in the public sector to pregnant women with HIV. It further ordered the government to plan an effective and comprehensive national programme providing for implementation and to deliver reports to the court on steps taken in this regard.

The government then decided to apply for leave to appeal the ruling.

Meanwhile, the TAC secured an execution order from the Pretoria High Court, compelling the government to provide the drugs in state hospitals pending the outcome of its appeal. In turn, the government applied for a second time to the Constitutional Court for leave to appeal the execution order. The Constitutional Court refused the appeal in April this year.

The Constitutional Court on Friday gave reasons for its April decision against the execution order.

“The (high court) order obliges the applicant (government) to carry out an order of court pending appeal. Granting leave in such circumstances would frustrate the very purpose of the interlocutory order,” Chaskalson said.

The Constitutional Court also denied the government leave to appeal December’s high court order on Friday, saying its Aids policy was unreasonable.

The Constitutional Court said it was necessary to spell out in a mandatory order what the government had to do to meet its constitutional obligations to the mothers and babies concerned.

However, it decided that an order requiring a report-back was not called for — unlike the high court ruling.

“At the stage when the high court made such an order, government was still relatively inflexible in its attitude to the supply of nevirapine. That has now changed materially.

“Government has in the past been scrupulous in its compliance with orders of the Constitutional Court and there is no reason to anticipate anything else in this instance.”

The Constitutional Court set aside the orders made by the high court and substituted it with the following orders:

— The government should devise and implement within their available resources a comprehensive and co-ordinated programme to realise the rights of pregnant women and their babies to access to health services to combat mother-to-child-transmission (MTCT) of HIV.

— The programme must include counselling and testing pregnant women for HIV.

Chaskalson said the government’s policy fell short in two instances. Doctors at public health institutions were not able to prescribe nevirapine, and the policy failed to make provision for counsellors at hospitals and clinics other than the research sites.

The government was ordered to pay the costs of the application.

Special adviser to Health Minister Manto Tshabalala-Msimang, Patricia Lambert, said the judgment was “workable”.

“The minister will study the judgment during the day and will issue a more detailed statement.”

Asked whether she was disappointed, Lambert replied: “I do not think that’s a word that I would apply. There have been tremendous changes in government in dealing with HIV and Aids.”

The government statement, which bore Tshabalala-Msimang’s name, said government would continue with research on using nevirapine against mother-to-child transmission of HIV at its 18 experimental sites, covering more than 200 health facilities.

It added that government would implement the temporary ruling of the Constitutional Court on provision of nevirapine beyond the designated sites, on the basis of a determination by relevant health authorities regarding the existence of appropriate capacity.

“In the meantime the Department of Health will work on a universal roll-out plan in preparation for the post-December 2002 period when tests will be done on a group of mothers and babies who have gone through 18 months of treatment and observation.

“The ruling by the Constitutional Court today confirms this approach, particularly on the provision of Nevirapine beyond the research sites.”

Spontaneous applause erupted from the public gallery in court after Chaskalson delivered judgment.

The TAC’s Thembeka Majali said shortly afterwards at a media briefing the decision meant a lot to poor people.

“We will never again have a Nkosi Johnson who had to die because his mother did not have access to preventative medication,” she said.

Cati Vawda of the Children’s Rights Centre and Doctor Haroon Saloojee of the Save our Babies organisation also attended the media briefing.

Saloojee said that since the start of the case in the Pretoria High Court, at least 40000 babies had been unnecessarily exposed to suffering.

The SA Medical Association said it could assist the government with the new treatment protocols.

“We believe that wherever there is a doctor, there is also the capacity to provide nevirapine,” Sama said in a statement.

Anglican Archbishop Njongonkulu Ndungane said the ruling was both welcome and alarming.

“While the outcome is a tribute to those who have persevered against severe odds... we cannot lose sight of the time and lives that have been lost and will continue to be at risk until our state hospitals shift into gear.”

The ruling was also welcomed by the Congress of SA Trade Unions, the Democratic Alliance, the New National Party and the United Democratic Movement.

Sapa

TORONTO

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