Minister of Health v Treatment Action Campaign (TAC) (2002) 5 SA 721 (CC)
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.
South Africa is in the midst of an HIV/AIDS epidemic with more than 6 million people infected. In 2,000, with infections of newborns in the range of 80,000 per year, the anti-retroviral drug Nevirapine offered the potential of preventing the infection of 30 – 40,000 children per year. The drug was offered to the Government for free for five years, but 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. The Treatment Action Campaign (TAC) launched a constitutional challenge, alleging a violation of the right to access health care services and demanding a program to make the drug available throughout the country. Judge Chris Botha of the High Court ruled 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. Botha, J. granted interim relief pending the appeal. The Constitutional Court rejected the appeal, finding that the restrictions of Nevirapine to pilot sites excluded those who could reasonably be included in the program. The Court ordered the Government to extend availability of Nevirapine to hospitals and clinics, to provide counselors; and to take reasonable measures to extend the testing and counseling facilities throughout the public health sector. The Court rejected the argument advanced by one of the interveners for a distinction between a minimum core content of the right to healthcare and the obligations imposed on the state in section 27(2) that are subject to progressive realization and available resources.
Keywords: Minister of Health v Treatment Action Campaign (TAC) (2002) 5 SA 721, Life, Right
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.
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.