Minister of Health v Treatment Action Campaign (TAC) (2002) 5 SA 721 (CC)

Nature of the Case

Constitutional Challenge to restrictions on the provision of anti-retroviral drugs to HIV positive pregnant women, resulting in tens of thousands of unnecessary infections and deaths; Alleged violation of the right  to health care services in s.27(1) and s. 28(1)(c) of the South African Constitution.  Progressive realization.  Whether there is an unrestricted right to minimum core medical services; Whether granting injunctive relief and supervisory jurisdiction breaches the separation of powers.

Enforcement of the Decision and Outcomes

The judgment in this case is estimated to have saved tens of thousands of lives.  In addition, it served to mobilize affected individuals and groups across the country.   The Court asserted its right to order effective relief, and to maintain supervisory jurisdiction, but 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.

Significance of the Case

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.  It 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.  But the case also highlights the unimaginable suffering of so many from an epidemic that has its origins in earlier and ongoing violations of ESC rights in South Africa and around the world.

Groups Involved in the Case

Treatment Action Campaign (TAC)

Save Our Babies (SOB)
Dr Haroon Saloojee, President
Children’s Rights Centre, Durban
Institute for Democracy in South Africa
Community Law Centre
Cotlands Baby Sanctuary