Budlender, Geoff

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RECENT DEVELOPMENTS South African court rules on the state's obligation to prevent mother-to-child transmission of HIV GEOFF BUDLENDER Attorney: Constitutional Litigation Unit of the Legal Resources Centre Treatment Action Campaign and Others v Minister oj Health and Others Case no 21182/2001 TPD Editor's note On 14 December 200 1 Justice Chris Botha of the Pretoria High Court found in favour of the Treatment Action Campaign. the Children's Rights Centre and paediatricians represented by Dr Saloojee against the Minister of Health and the provincial Ministers of Health on the issue of mother-to-child HIV trans-mission. 1 Five days later the Minister of Health responded that they will appeal to the Constitutional Court since "this judgment could have far-reaching implications in defining our constitutional democracy and in shap-ing the state's responsibility for the delivery of social services" and to "clarify a constitutional and jurisdictional matter which - if left vague - could throw executive policy making into disarray and create confusion about the princi-ple oj the separation of powers [between the judiciary and the executive). ,,2 The issue decided in the High Court was whether the steps taken by the state with regard to the prevention of mother-to-child HIV transmission by establishing J 8 pilot sites and confining the dispensing of Nevirapine (an antiretroviral medicine used to reduce the risk of HIV transmission) to those sites. could be considered to be compliance with the obligation of the state to take reasonable legislative and other measures, within its available resources. to achieve the progressive realisation of the right to access to health care services (section 27(2) of the South African Constitution). Below is a brief comment on the context and controversies surrounding the justiciability of socio-economic rights by Geoff Budlender. who acted as attorney for the Treatment Action Campaign and the other applicants in this matter. 1 The coun judgment and some of the co un documents are available on the Treatment Action Campaign website: h[tp:llwww.tac.org.za. 2 Department of Health Press release. t 9 December 2001. available from the Department of Health website: http://196.36.153.56/doh/doc/pr/2001. On 1 1 March 2002. Justice Botha ordered that Nevirapine be made available [0 pregnant women with HIV. pending the outcome of the Appeal in the Constitutional Court in May 2002 (Case no CCT 8/02) 129 Reproduced by Sabinet Gateway under licence granted by the Publisher (dated 2009).LAW. DEMOCRACY Ii DEVELOPMENT One of the apparent ironies of the pre-1994 constitutional negotiations was that. while the liberal-conservative panies opposed the introduction of social and economic rights. the African National Congress (ANC) -which clearly was the party which would govern. and would carry the primary burden of implementing them insisted on their presence in the Bill of Rights. The rAe judgment in the High Court shows the impact of the inclusion of these rights. They are not, as some opponents have said. mere piOUS hopes or aspirations. They are rights, which have a specific content and meaning. As the Constitutional Coun said in Grootboom', they are en-forceable: the only question is how they should be enforced. There are many ways in which the rights can be enforced, In some instances they will be negatively enforced by invalidating laws or prohibiting conduct which interfere with the exercise of the rights. This is very familiar territory for the courts. In other instances they will be capable of immediate enforcement by a positive order for performance, The rAe case demonstrates this: if a life-saving and demonstrably safe medicine is immediately available at no or nominal cost. there is no reason at all why the government should not be ordered to make it available immediately at those places where the neces-sary staff and service infrastructure already exist. and where the medical professionals believe that this is in the interests of their patients. The most heated debate usually takes place over a third category of cases. where the right can not immediately be fulfilled, and a programme is necessary to achieve this. In the rAe case, this is the position in respect of those public health facilities which are not yet in a position to provide Nevirapine for example, because they are not yet able to offer voluntary counselling and testing. Here, the courts will rightly be reluctant to step into the shoes of the executive. which is responsible for designing and implementing governmental programmes. As the Supreme Coun of Canada has observed, there is a 'myriad' of different ways in which government can perform its constitutional obligations - once it correctly understands what those obligations are. A declaration of the right and the corresponding duty, and an order on government to give effect to it, is therefore appropriate It is also appro-priate that the government be required to submit that programme to the scrutiny of the court, so that the court can determine whether it falls with-in the framework permitted and required by the constitution. An order of this kind both ensures that government does not drag its feet and gives all parties the advantage of a determination. before implementation of a possibly expensive programme, that it meets the constitutional mandate. All of this means that social and econom ic rights place burdens on the government, We should not be surprised if government officials should grumble that the courts are making 'policy' decisions which properly :3 Government of the Republic of South Africa and others v Grootboom and others 2001 (1) SA 46 (CC) 130 Reproduced by Sabinet Gateway under licence granted by the Publisher (dated 2009).SOUTH AFRICAN COURT RULES ON THE STATE'S OBLIGATION belong [0 the elected branches of governmem. But once social and eco-nomic rights have been included in the cons[i[Ution, it is inevitable that couns will have [0 decide whether policies are consistem with the re-quiremems of the consti[Ution. In fac[, this is an inevitable consequence of having a Bill of Rights at all. Even in the absence of social and eco-nomic rights, consti[Utionai decisions have policy implications and conse-quences. One of the striking the aspects of the TAe case is that it could have been decided, with the same result, on a variety of other, more traditional, consti[Utional grounds - for example equality, or administra-tive justice, or rationality. So why bother [0 have social and economic rights? And why did the ANC insist on this? Two main reasons are suggested. First, social and economic rights compel the governmem [0 keep its focus on the most vulnerable and the most disadvamaged. This is one of the lessons of Grootboom. The more far-Sighted of the ANC represematives at the constitutional negotiations recognised that in a country like ours, with its his[Ory of insti[Utionalised dispossession and discrimination, a focus on addressing disadvantage and poveny has [0 be a fundamemal goal and central purpose of government. Secondly, the social and economic rights keep other rights in balance, and enable the governmem to do what it should do and wams [0 do. The pharmaceutical manufac[Urers attempted [0 prevem the governmem from making less expensive drugs available to South Africans. They relied in part on their propeny rights, which are constitutionally entrenched.' Part of the answer was found in the social and economic rights, which author-ised governmem [0 take reasonable measures [0 achieve effective health services. Social and economic rights are largely poor people's rights: the wealthy have achieved most of the benefits which they promise. A constitution without an effective right [0 health services would lead to a health system even more severely skewed towards the needs of the wealthy, and would impede the attempts of government to meet its historic mandate and duty. The irony of the constitutional negotiations is therefore more apparem than real. It was [0 be expected that those who represem established and vested interests would wam [0 exclude social and economic rights. Con-versely, it was [0 be expected that those who represem the poor would see the need for social and economic rights in order [0 be able [0 achieve the fundamemal transformation of our coumry. 4 See article by Heywood "Debunking 'Conglomo-lalk': A case study of lhe amicus curiae as an inSlrumenl for advocacy. investigalion and mobilisalion". 131 Reproduced by Sabinet Gateway under licence granted by the Publisher (dated 2009).

South African court rules on the state's obligation to prevent mother-to-child transmission of HIV

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South African court rules on the state's obligation to prevent mother-to-child transmission of HIV

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