Belinda Beresford
The next bout of legal mud wrestling between the Treatment Action Campaign (TAC) and the government over anti-HIV treatment for pregnant women is expected today in the Pretoria High Court.
It is the latest in a series of skirmishes between the two sides that looks set to see the government pile appeal on appeal in a legally groundbreaking case.
The TAC and two other applicants, the Children’s Rights Centre and paediatrician Haroon Saloojee of Save Our Babies, are trying to get a legal grip on the national and provincial departments of health. They want the government to provide nevirapine to HIV-positive pregnant women attending public health facilities that are able to provide voluntary counselling and testing for the virus. It was government policy to provide such an intervention: studies have shown that the anti-retroviral drug can safely cut transmission of HIV during the birthing period by up to 50%.
The government claims it needs to do further research into nevirapine, which means that a nationwide programme cannot be implemented until at least next year.
The TAC wants the process speeded up. It argues that medical, scientific and many of the implementation issues have already been answered, and that the delay is political, due to government queasiness about anti-retroviral drugs.
The provinces have started to go their own way on this issue. During court hearings the KwaZulu-Natal government pulled out of the defence, saying it intended to provide universal access to nevirapine, which is far more extreme than the TAC request. The Western Cape government has started rolling out its nevirapine programme, and says it intends to provide access to the drug at all its public health facilities. ANC-controlled Gauteng, which has been more discreet about its often praised HIV/Aids programmes, is also extending access to nevirapine far beyond the two pilot sites.
Anti-retroviral drugs, including nevirapine, are routinely used for HIV-positive women lucky enough to be able to afford private medical care. In some developed countries doctors boast of having got transmission rates of HIV from mother to child down to less than 2% with the help of anti-retroviral medicines.
In December Judge Chris Botha came down on the side of the TAC. He ordered the government to provide a time-tabled roll-out plan to allow women access to nevirapine where it was medically indicated and facilities were available to do it properly.
The government asked for leave to appeal to the Constitutional Court against this judgement. Leave to appeal usually suspends the original order. In response the TAC went to court for a compulsion order, which would force the government to obey the original judgement pending the constitutional appeal. Such orders are not that unusual they are sometimes used during eviction proceedings, for example.
Earlier this month Botha simultaneously gave the government leave to appeal to the Constitutional Court, and acceded to the TAC’s request.
The effect was that if state health facilities that could provide antenatal counselling and testing for HIV failed to provide nevirapine where medically indicated, the relevant minister of health would be in contempt of court. He also decided that the premier of KwaZulu-Natal, the Inkatha Freedom Party’s Lionel Mtshali, could over-rule the ANC MEC for Health, Zweli Mkhize, and effectively pull the province from the court case.
A week ago the government appealed against the decision and the compulsion order. This is one area where the TAC’s case is precedent-setting. Compulsion orders may not be that unusual, but appealing against them is. Lawyers are divided over whether one can, in fact, appeal against such an interim order this is one argument that Botha will hear tomorrow.
Whatever his decision, there is a good chance that the losing side will try to counter with another appeal even though it’s not certain whether this would be legally allowable. One legal expert says almost every court order is appealable, a situation that is exploited by vexatious litigants.
There are other reasons why the case is intriguing from a legal point of view. It is uncertain whether the compulsion order has been suspended until judgement is given on the arguments.
On a more fundamental level, the case has constitutional implications both in terms of government responsibility to fulfil the socio-economic rights enshrined in the Constitution, and as a debate about the separation of powers between the judiciary and the state.
It is these implications that saw the government’s appeal leapfrog to the highest court of the land. On May 2 and 3 the Constitutional Court will hear the government’s original appeal to reverse Botha’s original order granting the TAC its desire for an expedited and detailed roll-out plan. That decision will be binding, although judgement is unlikely before late June.