Legal and Human Rights Responses to the HIV/AIDS Epidemic

• Jurisdiction: South Africa
• Pages: 47-90
• Date: 27 May 2019
• Published date: 27 May 2019
• Author: Edwin Cameron
• Citation: (2006) 17 Stell LR 47

LEGAL AND HUMAN RIGHTS RESPONSES TO

THE HIV/AIDS EPIDEMIC

*

Edwin Cameron

Hons BA LLB BCL MA

Judge of the Supreme Court of Appeal

1 The Challenge of AIDS and the Role of the Law in Responding

to it

South Africa is experiencing an HIV/AIDS epidemic of devastating

proportions.Responsible estimates put thenumber of South Africans living

with HIV or AIDS at between 5.7 million and 6.7 million — the mid-point

estimate is 6.29 million.

1

In July 2002 the Constitutional Court opened its

judgment in the case the Treatment Action Campaign (TAC)

2

brought to

oblige governmentto institute a national programme to preventmother-to-

child transmissionof HIV with a deliberately dramatic statement:

‘‘The HIV/AIDS pandemic in South Africa has been described as ‘an incomprehensible

calamity’ and ‘the most important challenge facing South Africa since the birth of our new

democracy’ and government’s fight against ‘this scourge’ as ‘a top priority’. It ‘has claimed

millions of lives, inflicting pain and grief, causing fear and uncertainty, and threatening the

economy’. These are not the words of alarmists but are taken from a Department of Health

publication in 2000 and a ministerial foreword to an earlier departmental publication.’’

3

* I would like to express my deep appreciationto Ms Anna-MarieHavenga (Principal State Law Adviserat

the South AfricanLaw Reform Commission) for collectingand arranging the legal researchmaterial that

forms the basis for this exposition, and for whose contribution these words are a wholly inadequate

recognition.

1

Department of Health Republic of South Africa National HIV and Syphilis Antenatal Sero-Prevalence

Surveyin South Africa (2004) 12. Reliable empirical data on the epidemicin SouthAfrica are hard to come

by. The main source of information is the annual antenatal sero-prevalence surveys the Departmentof

Healthconducts. According to these there has beena rapid spread of HIV from 1990 (when the prevalence

was less than 1%)to 2004 (when a national prevalence amongst those attendingantenatal clinics of nearly

29.5% was recorded) (National HIV and Syphilis Antenatal Sero-Prevalence Survey in South Africa 6).

Statistics releasedby the government on 18 February 2005 show a 57% increasein the number of deaths

between 1997 and 2002. Government statisticians believe that a large proportion of the increase is

attributable to AIDS (StatisticsSouth Africa Mortality and Causes of Death in South Africa,1997-2003:

Findingsfrom Death NotificationStatistical ReleaseP0309.3 (2005) 9; Sidley ‘‘SharpRise in Deaths in South

Africais Largely Due to AIDS’’ 2005-02-26 BMJ 438; ‘‘Calculationof Mortality in South AfricaConfirms

Massive Increase in AIDS Deaths’’ 2005-01-31 TAC Electronic Newsletter 1 available online at http:/

www.tac.org.newsletter/2005/ns31_01_2005.htm (2005-02-25) while it was reportedthat the then Interim

President of the MedicalResearch Council of South Africa told Parliament on15 March 2005 that the

Councilbelieves that close to 26% of these deaths mightbe HIV/AIDS-related (ParliamentaryMonitoring

Group ‘‘HIV/AIDSSocio-Economic Impact: MedicalResearch Council Briefing’’ Minutes of the Science

and Technology Portfolio Committee (2005-03-15) available online at http://www.pmg.org.za/min-

utes.php?q=1[2005-03-22].

2

The Treatment Action Campaign, established in December 1998, is an HIV/AIDS activist group

focusing primarily on health care issues affecting people with HIV in South Africa through highlighting

disparities and problems in access to treatment and campaigning to have them eliminated. Information

on the TAC and its activities are available at http://www.tac.org.za.

3

Minister of Health v Treatment Action Campaign No 2 2002 5 SA 721 (CC) par 1, citing the

Department’s HIV/AIDS & STD Strategic Plan for South Africa 2000-2005 (see n 49 infra) and an

earlier report to which it refers.

47

(2006) 17 Stell LR 47

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Tellingly, the Court used its power to order the government to respond

properly and effectively within its means to the challenges its own

documents had so starkly outlined: its very order instanced the role that

the law and legal institutions can play in responding to the crisis.

4

The

interposition of judicial power in the epidemic could be seen as the high

point of nearly a decade of jurisprudential development, and came

against a background of intense legal and popular activism directed at

achieving equality, non-discrimination and dignity for people living with

HIV/AIDS. The Constitutional Court’s order in the TAC case thus

represented the culmination of a campaign to create a framework within

the law for dealing rationally, fairly and effectively with the epidemic.

More generally, the law’s response to HIV/AIDS involves critical

questions about the nature of South African society. In the negotiations

that led in 1994 to the adoption of a Constitution, South Africans chose

to embody their democratic aspirations within a framework of legal

regulation — at just the time when the epidemic was beginning to take its

fearsome hold on the population. Legal values and human rights, as

enshrined in the Bill of Rights, became the touchstone of the country’s

values. The Constitution explicitly committed all institutions to the

foundational values of human dignity, the achievement of equality and

the advancement of human rights and freedoms, non-racialism and non-

sexism, and the supremacy of the Constitution and the rule of law.

5

One of the questions is whether the law has fulfilled these high

promises in relation to the HIV/AIDS epidemic. What role has the law

played in practical management of the epidemic? What light does the

law’s response to HIV/AIDS cast more generally on South Africa’s

attempts to grapple with the problem? And what do the limitations of the

law tell us about our failings in dealing effectively with HIV/AIDS and

other social problems? It is these questions I examine in this paper.

2 The Context of the Law’s Response in South Africa

From the early 1990s South African lawyers started to focus attention

on the possible impact of the disease on our society and the challenge the

spread of the epidemic posed for our legal system and our legal values.

6

Medical science lacks a means to cure HIV infection or any simple way to

4

See also discussions of the decision by Van Wyk ‘‘The Enforcement of the Right of Access to Health

Care in the Context of HIV/AIDS and its Impact on the Separation of Powers’’ 2003 THRHR 389 401

et seq; Ngwena ‘‘The Historical Development of the Modern South African Health-care System: From

Privilege to Egalitarianism’’ 2004 De Jure 290 303 et seq; Heywood ‘‘Preventing Mother to Child HIV

Transmission in South Africa: Background, Strategies and Outcomes of the Treatment Action

Campaign Case against the Minister of Health’’ 2003 SAJHR 278 et seq.

5

Constitution of the Republic of South Africa Act 108 of 1996 s 1(a)-(c).

6

Cf Cameron & Swanson ‘‘Public Health and Human Rights — The AIDS Crisis in South Africa’’ 1992

SAJHR 200 201; Van Wyk Aspekte van die Regsproblematiek Rakende VIGS (1991) 81.

48 STELL LR 2006 1

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stop the spread of the virus.

7

It was widely accepted, however, that the

law would necessarily play an important role in attempting to curb the

epidemic and to diminish its effects.

8

Initially many in South Africa demanded that the law be employed to

isolate and quarantine persons with HIV and for making AIDS

compulsorily notifiable.

9

Under apartheid, in line with approaches

elsewhere, the government introduced coercive measures for HIV and

AIDS. The Regulations relating to Communicable Diseases and the

Notification of Notifiable Medical Conditions promulgated in 1987

10

under the previous Health Act 63 of 1977 contained various measures

aimed at certain ‘‘communicable diseases’’. The wide definition of

‘‘communicable disease’’ in section 1 of the Health Act clearly

encompassed HIV infection.

11

In addition, the Regulations provided

for specific coercive measures that were to be applied mandatorily to

expressly listed communicable diseases. With semantic imprecision, the

regulations listed AIDS (which is not communicable), but not HIV

(which is).

12

The measures (whether they had to be applied in the

discretion of the health authorities or mandatorily) when read to include

HIV infection encompassed the following:

13

authority, under certain

circumstances,

14

to close teaching institutions and restrict attendance at

7

Although — for those to whom they are available and accessible — combinations of anti-retroviral

drugs have since 1996 proved to be extremely effective in diminishing mortality and morbidity, in

prolonging lives, improving quality of life, revitalising communities and transforming perceptions of

HIV/AIDS, there is still no cure for HIV infection or AIDS (South African Government Information

Operational Plan for Comprehensive HIV and AIDS Care, Management and Treatment for South Africa

2003-11-19 13, available online at http://www.info.gov.za/others/2003/aidsplan.pdf [2005-03-15]. A

protective vaccine is also not expected to become available in the foreseeable future. Developing a

vaccine is not only complicated by the nature of the virus but by the large financial reserves and human

and infrastructural components required (Tanne ‘‘AIDS Vaccine is a Long Way Off’’ 2005-05-21 BMJ

1170; Tucker & Mazithulela ‘‘Development of an AIDS Vaccine: Perspective from the South African

AIDS Vaccine Initiative’’ 2004-08-21 BMJ 454-456. See also South African Government Information

Update on the National HIV and AIDS Programme 2003-03-19 available online at http://

www.info.gov.za/issues/hiv/update03.htm [2005-03-15].

8

Van Wyk Regsproblematiek rakende VIGS 81.

9

See the incidents recorded by Cameron & Swanson as reported in the press during 1988-1991 (Cameron

& Swanson 1992 SAJHR 201); cf also Ngwena Legal Responses to AIDS: South Africa in Franskowski

(ed) Legal Responses to AIDS in Comparative Perspective (1998) 117 et seq. Isolation is traditionally

applied to isolate ill persons in order to treat them and to prevent them from spreading disease: Van

Wyk Regsproblematiek rakende VIGS 444-445; Jarvis, Closen, Hermann & Leonard AIDS Law in a

Nutshell (1991) 285-289. Quarantine is traditionally used to restrict the freedom of movement of healthy

persons who have been exposed to a disease, but who do not yet show signs of infection, in order to

prevent the spread of disease: Van Wyk Regsproblematiek rakende VIGS 444-445; Jarvis et al AIDS

Law 285-289.

10

GN R2438 in GG 11014 of 1987-10-30 promulgated in terms of ss 32 33 and 34 of the Health Act 63 of

1977.

11

South African Law Reform Commission Aspects of the Law Relating to AIDS Project 85 First Interim

Report (1997) par 5.1-5.16.

12

See Annexure 1 of the 1987 Regulations.

13

FD For a more detailed discussion of these measures see Aspects of the Law relating to AIDS First

Interim Report (par 5.1), Third Interim Report (1998) par 3.8-3.10, Fourth Interim Report (2000) par

6.9-6.14 and Fifth Interim Report (2001) par 5.8-5.12.

14

The circumstances required generally referred to situations where the health authorities were

reasonably satisfied that the spread of the particular communicable disease constituted or would

constitute a danger to public health (see eg regs 2(1) 3(1) and 14(1)).

RESPONSES TO THE HIV/AIDS EPIDEMIC 49

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