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Minister of Health and Others v Treatment Action Campaign and Others.

Name of Case

Minister of Health and Others v Treatment Action Campaign and Others. 

Keywords, Forum, Remainder of Citation, Context, On what breach of law was the case brought?, Process , How did civil society mobilise around the case?, Result of case, Effect of case, What has this case done to further the right to education? 

Keywords

Children‘s Rights, Health Rights, HIV/AIDS, Right to Life, Maximum Available Resources, policies on rights, Progressive Realization/Non-Retrogression, Women’s Rights positive right, medical, accessibility, availability, acting reasonably to provide on progressive basis, South Africa, constitutional law, national level

Forum

Constitutional Court of South Africa

Remainder of Citation

(2002) 5 SA 721 (CC); 5 July 2002

Context

In 2000 the anti-retroviral drug Nevirapine was offered to the South African Government for free for five years.  The drug offered the potential of preventing the HIV/AIDS infection of 30 – 40,000 children per year. However, the South African Government announced it would introduce Mother-To-Child-Transmission (MTCT) only in certain pilot sites and would delay setting these up for a year, thereby denying most mothers access to treatment. 

On what breach of law was the case brought?

Alleged violation of the following sections of the South African Constitution:

s.27; ‘Everyone has the right to have access to a) health care services, including reproductive health care;’ The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights.

s. 28(1)(c) Every child has the right to basic nutrition, shelter, basic health care services and social services;

Note. There is no mention of the government being allowed to achieve children’s rights to health care on a progressive basis.

Process

The applicants sought to force the South African government to provide and to allow the provision of anti-retroviral drugs to all HIV-positive pregnant women in order to prevent woman-to-foetus HIV transmission.

The Treatment Action Campaign (TAC) launched a constitutional challenge, arguing that the steps so far taken by the state to give the whole affected population access to a woman-to-foetus transmission prevention programme could not be regarded as reasonable and thus constituted a violation of the constitutional right to have access to adequate health care. 

How did civil society mobilise around the case?

The following groups all played a role in the case: Treatment Action Campaign (TAC), Save Our Babies (SOB), Children’s Rights Centre, Duran, Institute for Democracy in South Africa, Community Law Centre, Cotlands Baby Sanctuary.

The case provides an inspiring model for integrating political and legal action.  5,000 people marched to the court in Johannesburg at the opening of the hearing.

Result of case

The High Court decided in favour of TAC, ordering that Nevirapine be made available to infected mothers giving birth in state institutions and that the government present to the court an outline of how it planned to extend provision of the medication to its birthing facilities, country-wide.

The Government appealed the decision to the Constitutional Court. The Constitutional Court rejected the appeal, finding that the restrictions of Nevirapine to pilot sites excluded those who could reasonably be included in the programme. The Court ordered the Government to extend availability of Nevirapine to hospitals and clinics, to provide counsellors; and to take reasonable measures to extend the testing and counselling facilities throughout the public health sector.

Whilst the Court noted that 'it would in any event be impossible to give everyone access even to ‘core’ service immediately’ (at paragraph 35), it should act reasonably to provide access to the socio-economic rights identified in sections 26 and 27 on a progressive basis.  With that in mind, the Court held that the State’s policy not to make nevirapine available at hospitals and clinics other than the research and training hospitals was unreasonable and, therefore, fell short of meeting its obligation to devise and implement within its available resources a comprehensive and co-ordinated programme to realise progressively the rights of pregnant women and their newborn children to have access to health services to combat woman-to-foetus transmission of HIV.

Effect of case

The judgment in this case saved thousands of lives. In addition, it served to mobilise affected individuals and groups across the country.

The Court asserted its right to order effective relief, and to maintain supervisory jurisdiction, but actually chose to simply order immediate implementation of the remedy.  Follow-up pressure was needed in some provinces to achieve compliance, including the filing of a contempt of court action against one provincial authority.

Note. If a person or body is found to be in contempt of court, it means they have been disrespectful to the court or as was alleged in this case, have failed to obey an order of the court. Sanctions can include a fine or jail.

What has this case done to further the right to education?

The decision establishes a conceptual and remedial framework for judicial review and enforcement of the obligation to ensure access to healthcare and other esc rights.

The case did much to highlight the suffering of those affected by AIDS/HIV infection. A legal case has the potential to not only bring positive orders of a court for action to be taken to resolve a situation but can also provide the catalyst for widespread publicity leading to political and social action as well.

Note. See the section on the website relating to the reasons for bringing litigation.

The case reaffirmed the concept of progressive realisation that of realising as quickly as possible a right that if not able to be realised immediately i.e. if a particular products or materials are in existence, they should be made available as widely as possible - If the materials such as school books are in existence, a government should not use a general excuse of lack of resources not to distribute them or to not distribute them without discrimination. See case of Purohit and Moore v Gambia in the section of cases on progressive realisation and non-discrimination.