Pretoria | Tuesday
SOUTH African justice minister Penuell Maduna has apologised after he said that a Pretoria High Court judgement on nevirapine supply was not binding in other provinces.
Maduna issued the statement through his representative Paul Setsetse.
Legal experts on Tuesday also slammed Maduna’s comments, saying the court’s decision that nevirapine should be made available to HIV-positive pregnant women is binding on all the provincial MECs cited in the case.
Maduna had suggested that provinces were able to ignore the ruling given on Monday.
”This is the decision of just one court and purely on the basis of our legal system it is not binding on the rest of the country,” Maduna said on SABC television news.
Judge Chris Botha made an execution order, compelling the government and seven provinces to carry out an order he granted earlier this month, requiring them to provide nevirapine for prevention of mother-to-child transmission of HIV beyond 18 existing pilot sites.
He issued the execution order after the government lodged a Constitutional Court appeal against a more extensive order on the nevirapine programme he gave last year.
Professor David McQuoid-Mason of the University of Natal’s law school said on Tuesday that when a judge in a particular division of the High Court gave a judgement, he or she was interpreting what the law was in the whole country, not just a part of it.
”His word is what the law is,” McQuoid-Mason said.
However, Maduna was ”partly right” in that another judge in another division of the High Court might be called on to deal with a case involving the same issues and come to another conclusion.
In that scenario, the finding of the first judge would be what lawyers called ”persuasive precedent”, but not binding on the second judge.
It was only when an issue had been considered by the Supreme Court of Appeal or the Constitutional Court that rulings became binding on all courts.
Professor Rob Midgley of Rhodes University’s law school said the simple fact that provincial MECs were cited as respondents bound them to the judge’s ruling.
He said that though Botha had refused the government leave to appeal against his execution order, Health Minister Manto Tshabalala-Msimang could still petition either the Supreme Court or the Constitutional Court for leave to appeal.
However, he suspected such a move would not have the effect of suspending the execution order, as a petition was not a ”proper” appeal.
He said that Tshabalala-Msimang’s statement on Sunday that she would not comply with Botha’s ruling ran the danger of fostering a culture of lawlessness.
”It is not up to litigants to overrule judges, it is up to courts to overrule them. Litigants should abide by court decisions until a higher court has overruled them,” he said.
”The message they (the government) are giving here is that people can do what they want, can ignore court rulings. The culture of lawlessness is one that we do not need in this country,” he said.
McQuoid-Mason said any attempt by the minister to have Botha’s ruling overturned would be ”most unusual”.
In most cases, if there had been a specific argument on why a judgement should not be suspended, that was usually the end of the matter.- Sapa