Summary
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
