Minister of Health and Others v Treatment Action Campaign and Others (No 2)

• Jurisdiction: South Africa
• Judge: Chaskalson CJ, Langa DCJ, Ackermann J, Goldstone J, Kriegler J, Madala J, Ngcobo J, O'regan J, Sachs J, Du Plessis AJ and Skweyiya AJ
• Judgment Date: 05 July 2002
• Citation: 2002 (5) SA 721 (CC)
• Docket Number: CCT 8/2002
• Counsel: M T K Moerane SC (with him P Coppin and B Vally) for the appellants. G J Marcus SC (with him B C Majola and G M Budlender (attorney)) for the respondents. W H Trengove SC (with him N Bawa, A C Dodson and K Pillay) for the first and second amici curiae.
• Court: Constitutional Court

The Court: B

Introduction

[1] The HIV/AIDS [1] 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 C 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. [2] D

[2] This appeal is directed at reversing orders made in a High Court against government, because of perceived shortcomings in its response to an aspect of the HIV/AIDS challenge. The Court found that government had not reasonably addressed the need to reduce the risk of HIV-positive mothers transmitting the disease to their babies at birth. More specifically the finding was that government had acted E unreasonably in (a) refusing to make an antiretroviral drug called Nevirapine [3] available in the public health sector where the attending doctor considered it medically indicated and (b) not setting out a timeframe for a national programme to prevent mother-to-child transmission of HIV. F

[3] The case started as an application in the High Court in Pretoria on 21 August 2001. The applicants were a number of associations and members of civil society concerned with the treatment of people with HIV/AIDS and with the prevention of new infections. In this judgment they are referred to collectively as 'the applicants'. The principal actor among them was the Treatment Action Campaign (TAC). The respondents were the national Minister of Health and the respective members of G

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the executive councils (MECs) responsible for health in all provinces, save the Western A Cape. [4] They are referred to collectively as 'the government' or 'government'.

[4] Government, as part of a formidable array of responses to the pandemic, devised a programme to deal with mother-to-child transmission of HIV at birth and identified Nevirapine as its drug of choice for this purpose. [5] The programme imposes restrictions on the availability of Nevirapine in the public health B sector. This is where the first of two main issues in the case arose. The applicants contended that these restrictions are unreasonable when measured against the Constitution of the Republic of South Africa Act 108 of 1996, which commands the State and all its organs to give effect to the rights guaranteed by the Bill of Rights. This duty is put thus C by ss 7(2) and 8(1) of the Constitution respectively:

'7(2) The State must respect, protect, promote and fulfil the rights in the Bill of Rights.

. . .

8(1) The Bill of Rights applies to all law, and binds the Legislature, the Executive, the Judiciary and all organs of State.' D

At issue here is the right given to everyone to have access to public health care services and the right of children to be afforded special protection. These rights are expressed in the following terms in the Bill of Rights:

'27(1) Everyone has the right to have access to - E

(a)

health care services, including reproductive health care;

. . . .

(2) The State must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights.

. . .

28(1) Every child has the right - F

. . .

(c)

to basic nutrition, shelter, basic health care services and social services.'

[5] The second main issue also arises out of the provisions of ss 27 and 28 of the Constitution. It is whether government is constitutionally obliged and had to be ordered forthwith to plan and G implement an effective, comprehensive and progressive programme for the prevention of mother-to-child transmission of HIV throughout the country. The applicants also relied on other provisions of the Constitution which, in view of our conclusions, need not be considered. H

[6] The affidavits lodged by the applicants addressed these two central issues from a variety of specialised perspectives, ranging from paediatrics, pharmacology and epidemiology to public health administration, economics and statistics. The applicants' papers also include the testimony

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of doctors, nurses and counsellors confronted daily with the human tragedies of HIV-infected mothers and their A babies. In addition there are poignant accounts of HIV-positive pregnant women's pleas for access to Nevirapine for themselves and their babies at public health institutions where its supply is prohibited.

[7] The principal deponents to the government's answer are the director-general of the national Department of Health, Dr Ayanda B Ntsaluba, and Dr Nono Simelela, the chief director of the department's HIV/AIDS programme, whose affidavits were signed on 20 October 2001. They are supported by a number of experts and by the administrative heads of the respective provincial health departments. Although the two main issues relate to government policy, as distinct from mere administration, neither the Minister nor any of the MECs was C a deponent.

[8] On 14 December 2001 the High Court made an order substantially in accord with the notice of motion as then worded. Its main provisions were the following: D

'1.

It is declared that the first to ninth respondents are obliged to make Nevirapine available to pregnant women with HIV who give birth in the public health sector, and to their babies, in public health facilities to which the respondents' present programme for the prevention of mother-to-child transmission of HIV has not yet been extended, where in the judgment of the attending medical officer, E acting in consultation with the medical superintendent of the facility concerned, this is medically indicated, which shall at least include that the woman concerned has been appropriately tested and counselled.

2.

The first to ninth respondents are ordered to make Nevirapine available to pregnant women with HIV who give birth in the F public sector, and to their babies, in public health facilities to which the respondents' present programme for the prevention of mother-to-child transmission of HIV has not yet been extended, where in the opinion of the attending medical practitioner, acting in G consultation with the medical superintendent of the facility concerned, this is medically indicated, which shall at least include that the woman concerned has been appropriately tested and counselled.

3.

It is declared that the respondents are under a duty forthwith to plan an effective comprehensive national programme to H prevent or reduce the mother-to-child transmission of HIV, including the provision of voluntary counselling and testing, and where appropriate, Nevirapine or other appropriate medicine, and formula milk for feeding, which programme must provide for its progressive implementation to the whole of the Republic, and to implement it in a reasonable manner. I

4.

The respondents are ordered forthwith to plan an effective comprehensive national programme to prevent or reduce the mother-to-child transmission of HIV, including the provision of voluntary counselling and testing, and where appropriate, Nevirapine or other appropriate medicine, and formula milk for J

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feeding, which programme must provide for its progressive implementation to the whole A of the Republic, and to implement it in a reasonable manner.'

A number of supporting provisions and a costs order against the government were added.

[9] Because of the importance and urgency of the matter, an early date was allocated for the hearing of government's appeal B against the order of the High Court. This was followed by an unsuccessful interim application to this Court by government aimed at staying the High Court's order pending the determination of this appeal. At the commencement of the appeal hearing we dismissed a belated application for admission as an additional amicus C curiae and an application by an amicus to adduce evidence. The High Court had also granted an application by the Premier of KwaZulu-Natal to be substituted for his MEC for Health and that substitution gave rise to both an appeal to this Court and an application to present further evidence. These were heard immediately after argument in the main proceedings had ended and both were refused at the time, the reasons to follow. Then, some days after the hearing, D the Court addressed an enquiry to the parties which, instead of enlightenment, unfortunately elicited a great deal of contention and yet another application to adduce further evidence, dealt with below. This judgment focuses on the principal issues and these minor matters will be dealt with either in passing or in separate judgments. E

Factual background

[10] The two principal issues had been in contention between the applicants and government for some considerable time prior to the F launching of the application in the High Court. Thus, when the TAC in September 1999 pressed for acceleration of the government programme for the prevention of intrapartum mother-to-child transmission of HIV, it was told by the Minister that this could not be done because there were concerns about, among other things, the safety and efficacy of Nevirapine. Nearly a year later (in August 2000), following the G 13th International AIDS Conference in Durban and a follow-up meeting attended by the Minister and the MECs, the Minister announced that Nevirapine would still not be made generally available. Instead each province was going to select two sites for further research and the use of the drug would be confined to such sites. H

[11] Close to a year later, in a letter dated 17 July 2001 written...