TO lose one court battle is a misfortune, but to lose four in a row looks like blind obedience to orders from the top, worthy of the Charge of the Light Brigade. This week the entire Constitutional Court rejected yet another attempt by the Minister of Health, Manto Tshabalala-Msimang, and her provincial counterparts to save themselves from the awful task of providing nevirapine to pregnant HIV-positive women.
Watching the 11 judges circling the government’s legal arguments, repeatedly firing questions when they failed to get satisfactory replies, reminded one of a pack of dogs baiting a bear. Fortunately, the end of this particular drama was quick and clean.
Now the stage is set for next month’s Constitutional Court appeal against the original high court order that the government must provide a planned rollout of nevirapine.
In the heat of battle, it takes strength and confidence to step back and seek another way forward. But that is what the government can and should do, both to save itself from further public humiliation and to unite the nation against the true enemy – HIV/Aids and all the misery it brings.
The May appeal hearing has ramifications for South Africa that go far beyond nevirapine. It will shed light on the state’s responsibilities on constitutionally enshrined socio-economic rights. It will also clarify the question of the separation of powers between the executive and the judicial branches of the state.
But in the interim, the government should give serious consideration to the plea by Constitutional Court Judge Albie Sachs that it show flexibility and seek some accommodation with its opponents, rather than locking horns in a pointless and time-consuming battle of wills. Sachs asked whether the ministerial task team into mother-to-child transmission of HIV, announced with much fanfare last week, could encourage the warring sides to work together to save children’s lives before the appeal hearing starts on May 2. Both parties say they want to save as many children as possible from infection, as safely and as quickly as possible.
Tshabalala-Msimang was in court during the hearing and, one hopes, noted Sachs’s plea. She has the power to pull together an inclusive task team to form a united front against this national emergency. The government has the opportunity not only to save face, but to save lives. At least the cavalrymen of the Light Brigade endangered no lives but their own.
Another reason to schlep?
The Myburgh Commission of Inquiry into the rand is becoming something of an embarrassment for South Africa. About R25-million has been spent hiring an army of lawyers to probe the fiendishly complicated currency market for an explanation of the collapse of the rand late last year. It was always going to be a daunting task, and it was never likely that South African Chamber of Business (Sacob) chief Kevin Wakeford’s sinister allegations would be proved. The best that could be hoped for was an efficient inquiry that elucidated the intricacies of the market.
Now it looks as if we will not get off that lightly. Instead of being much ado about nothing, the undertaking could positively damage the country’s reputation.
No one would want to discourage whistle-blowing. But it now emerges that Wakeford forwarded to the presidency a wafer-thin set of allegations about collusion between private institutions and the central bank. He is paying the price for this bravado. As he admits, he neither corroborated the claims nor ran them past his colleagues at Sacob. The question now is whether he should retain his place at the helm of one of South Africa’s premier business bodies.
The presidency also deserves a drubbing for appointing an inquiry largely on the basis of Wakeford’s flimsy missive. Wakeford has told the commission the presidency acted on other information as well – let us hope the commission discovers what this was. Why did the presidency not refer the matter to the Reserve Bank, which is responsible for policing exchange control regulations? Wakeford claims he avoided the bank because he feared it was party to the conspiracy. The presidency will have to do better than that.
As it is, we fear the letter pandered to two worrying tendencies in the ruling party: a naïve belief that capitalism can be “patriotic” and a penchant for conspiracy theories.
There is one fundamental reason for the rand’s weakness: a lack of confidence in the country’s future. Most well-heeled South Africans – and presumably many companies – have long sought to move their capital off shore, to “schlep”, as some term it. Much of this lack of confidence is misplaced and stems from prejudice. But some of it is founded in reality, and is likely to be fuelled by events like the appointment of the Myburgh commission.
The Wakeford saga points to poor judgement in high places. Another reason to schlep?