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Shirley Mabusela We feel we should provide clarification on the supposed misunderstanding that has resulted from the Human Rights Commission’s decision to withdraw as a friend of the court in an action brought by the Treatment Action Campaign (TAC) aimed at challenging the government to provide free nevirapine to all pregnant mothers with HIV/Aids to prevent mother-to-child transmission of the disease. The commission is of the view that the right to access health care services and to reproductive health care, enshrined in Section 27 (1) (a) of our Constitution, must be enjoyed by all, including those living with HIV/Aids. With regard to the issue of mother-to-child transmission, the commission adopted a policy to the effect that measures be taken by the government “to provide women with HIV/Aids access to treatment which reduces mother-to-child transmission including formula food where appropriate”. The commission was approached last year with a complaint on a similar matter in which the complainant, acting on behalf of pregnant women, wanted the commission to declare that it is a right of pregnant women to be given free anti-retroviral drugs and to access health-care services. The commission, which has never denied that pregnant women are entitled to these rights, engaged the Department of Health to find out the “reasonable legislative and other measures” being taken “within its available resources to achieve the progressive realisation of” the right to health. Our interaction with the government on this matter revealed that it had taken and was still taking steps to ensure progressive realisation of the rights, especially with regard to mother-to-child transmission, which was the fact at issue in this complaint. Based on our interaction with and the response we received from the government, we were of the view that the government was ensuring enjoyment of this right progressively as required by Section 27(2). This decision was communicated to the complainant, who wasn’t satisfied. In terms of the regulations of the commission, the complainant appealed this decision to the chairperson of the commission. At the same time, the commission was approached by the TAC to join it in an action against the government to force the latter to provide free nevirapine to all pregnant mothers to prevent mother-to-child transmission. At first instance, the commission agreed to join as an amicus curiae, that is, as a friend of the court, to provide information that otherwise had not hitherto been provided. In terms of the rules of amicus curiae, the person applying to be the friend of the court is obliged not to repeat submissions made by other parties but to raise new contentions, which are different from the others and of some use to the court. The commission in terms of this rule wrote to all the parties of the case, requesting their permission to join. The TAC and the Western Cape government granted permission while the other respondents declined. Under these circumstances the commission had only one choice; apply to the court to obtain permission to join. Papers were filed to this effect but before the court could decide on the matter a full and frank deliberation of a meeting of the commission took place and came to the conclusion that it would not be able to satisfy the legal requirements of entering the case as an amicus that is to say, to place information or legal argument that has not previously been placed before the court by any of the parties. Secondly, the applicants’ founding papers contained all the submissions possible in the case and these submissions were to be argued by a senior and very able counsel. From the above account, it is clear that the commission was never a party to the action ab initio and neither had it been granted permission to be an amicus. It is therefore incorrect to claim that the commission withdrew from an action with the TAC. The commission has also never spoken against the provision of nevirapine to pregnant mothers. As a matter of fact, this position is clearly stated in the HIV/Aids policy of the commission. The commission, being an independent statutory body, has the right to reverse any of its earlier decisions if it realises it is not in the interest of pursuing its mandate. The decision to withdraw the amicus application was taken at a properly constituted meeting of commissioners and senior management. It is therefore ill-conceived to think that because the chairperson talked with advocate Moerane from the president’s office the commission was pressurised to withdraw the application. It should be emphasised that while commissioners are free to talk to whoever they choose, the commission is responsible for its final decision. No single commissioner makes a decision on behalf of the commission, not even the chairperson. There are processes that have to be followed and the proper process was adopted to arrive at the decision not to pursue the amicus application in this case. Shirley Mabusela is acting chairperson of the Human Rights Commission