Publications

BOOKS PUBLISHED BY AJ

Cases On Human Rights

Volume 1

Administrative Law

– Executive prerogative to formulate state policy - Judicial review thereof – Whether doctrine of Separation of Powers restricts court in making pronouncements on the constitutionality of policy "Minister of Health v. Treatment Action Campaign"

Minister of Health
Member of the Executive Council for Health, Eastern Cape
Member of the Executive Council for Health, Free State
Member of the Executive Council for Health, Gauteng Member of the Executive Council for Health, Kwazulu-Natal
Member of the Executive Council of Health, Mpumalanga
Member of the Executive Council for Health, Northern Cape Member of the Executive Council for Health, Northern Province
Member of the Executive Council for Health, North West

v.
Treatment Action Campaign
Dr. Haroon Saloojee
Children Rights Centre
Together with
Institute for Democracy in South Africa
First Amicus Curiae
Together with
Institute for Democracy in South Africa
First Amicus Curiae
Community Law Centre
Second Amicus Curiae

Cotlands Baby Sanctuary
Third Amicus Curiae

CONSTITUTIONAL COURT OF SOUTH AFRICA

Case CCT 8/02
Chaskalson CJ
Langa DCJ
Ackermann J
Du Plessis AJ
Goldstone J
Kriegler J
Madala J
Ngcobo J
O'Regan J
Sachs J
Skweyiya AJ

Friday, 5th July 2002

HUMAN RIGHTS – Social and Economic rights – Enforceability thereof – Obligation of government to plan and implement an effective, comprehensive and progressive programme to actualize socio-economic rights - Whether daunting socio-economic realities will mitigate government's obligations to actualize socio-economic rights

HUMAN RIGHTS – Social and Economic Rights - Right of access to health care services – Whether imposes obligation on government to provide access to health care services – What court must do in a dispute concerning socio-economic rights

HUMAN RIGHTS - Social and Economic Rights –Right of access to health care services – HIV/AIDS pandemic - State policy restricting the availability of a potentially life saving antiretroviral drug for safety and efficacy considerations – Where such policy deprives mothers and their new born children of vital access to potentially life saving drug – Whether policy reasonable

HUMAN RIGHTS – Social and Economic Rights – Infraction thereof – What constitutes appropriate relief – When court can forge new tools or shape innovative remedies

ADMINISTRATIVE LAW – Executive prerogative to formulate state policy - Judicial review thereof – Whether doctrine of Separation of Powers restricts court in making pronouncements on the constitutionality of policy

CONSTITUTIONAL LAW – Separation of Powers – Prerogative of executive arm of government to issue and direct State Policy – Whether precludes judicial review – Whether circumstances exist when judicial intrusion in the domain of executive powers will be constitutional

CONSTITUTIONAL LAW – Separation of Powers – Judicial review of state policy -– Whether court can issue orders with budgetary implications that shape policy-making and implementation - What court must consider when asked to pronounce on the constitutionality of state policy

CONSTITUTIONAL LAW – Separation of Powers – Judiciary – Structural interdicts - When court will use structural interdicts to prescribe steps to remedy a situation and set time frame for full compliance with its order

Issues for determination
1. Whether it was reasonable for the respondents to exclude the use of nevirapine for the treatment of mother-to-child-transmission of HIV/AIDS at public hospitals and clinics, other than at designated pilot research and training sites, where testing and counselling are available and where the administration of nevirapine is medically indicated.

2. Whether the Respondents are obliged, as a matter of law, to implement and set out clear timeframes for a national programme to prevent mother-to-child transmission of HIV, including voluntary counselling and testing, antiretroviral therapy, and the option of using formula milk for feeding.

Facts:
The respondents collectively referred to as ‘the government' in this case, devised a programme to deal with mother-to-child-transmission (MTCT) of HIV at birth and identified nevirapine as the drug of choice. The Medicines Control Council, a body created under the Medicines and Related Substances Control Act, 101, to determine the safety of drugs before their being made available in South Africa registered nevirapine in 1998, confirming the quality, safety and efficacy of the drug. The World Health Organisation had also recommended the administration of the drug to mother and infant at the time of birth in order to prevent MTCT. For safety and efficacy concerns however, government adopted a policy that restricted the availability of nevirapine in the public health sector to pilot sites designated for purposes of research and training personnel on the use of the drug. An observation period of two years was reserved to test the suitability of the drug within the South African socio-economic context, with two pilot sites designated for each of the provinces of South Africa. However, the use of the drug in private health facilities whenever it was medically indicated and where there were testing and counseling facilities was not restricted.

e applicants challenged the government's policy of restriction, contending that the policy was unreasonable when measured against the constitutionally mandated requirement that the state and all its organs must give effect to the rights guaranteed by the bill of rights, the rights in issue being the right to have access to health care services and the right of children to be afforded special protection. They prayed for an order directing the government to make nevirapine available to pregnant women with HIV who give birth in the public health sector and to their babies where the drug is medically indicated and the women concerned have been tested and counseled. They also sought an order directing government to plan and implement an effective, comprehensive and progressive programme for the prevention of MTCT of HIV throughout the country.

Government countered that the administration of the drug required a multiple-strategy approach or comprehensive package that could best guarantee its efficacy, but the immediate implementation of which was, at the material time, cumbered by social, economic, public health, cultural and manpower constraints that made the restrictive policy necessary. The Government argued that administering a comprehensive package of nevirapine treatment required substituting breastfeed for formula feed (bottle-feed) in order to prevent subsequent transmission after the administration of the drug. However socio-cultural preferences for breastfeeding among an overwhelming majority of nursing mothers (most of whom were rural dwellers) who lacked easy access to hygienic water and the means to procure formula feed, constituted a major impediment to persuading HIV/AIDS nursing mothers towards using breast milk substitutes. These constraints, it was argued, increased risks to infants growing up with inadequate nutrition and sanitation. Government accordingly submitted that the policy was introduced to equip government with sufficient data that would help it develop and monitor its human and material resources on a national scale for the delivery of the comprehensive MTCT prevention package.

The High Court granted the applicants' prayers and the respondents appealed.

Held (Unanimously allowing the Appeal):
Although there is some justification for restricting nevirapine to pilot sites from which vital information could be gathered for developing the best possible prevention programme for MTCT from the public health point of view, the rigid application of the policy denies mothers and their newborn children at public hospitals and clinics outside the research and training sites their constitutional rights to access health care services, and, is, in the face of the life threatening potentials of the HIV/AIDS pandemic, unreasonable. The court declared that government was under constitutional obligation to devise and implement within its available resources, a comprehensive and co-coordinated programme to realize progressively, the rights of pregnant women and their newborn children to have access to health care services to combat MTCT of HIV, alongside appropriate testing and counseling. The court also ordered the government to, amongst others, remove restrictions on the availability of nevirapine at public hospitals and clinics that are not research and training sites, and to permit and facilitate the use of the drug throughout the public health sector, when the drug is medically indicated. The court did not preclude government from adapting its MTCT policy in a manner consistent with the Constitution whenever the need arose.