SUE BLAINE, Johannesburg | Thursday
IT was HIV-positive pregnant women, parents and babies who were the real winners when the Constitutional Court on Thursday refused the government leave to appeal against a Pretoria High Court execution order, Treatment Action Campaign (TAC) representative Mark Heywood said.
Heywood was speaking outside the court minutes after Chief Justice Arthur Chaskalson read the 11 judges’ response to the government’s application against the order, which demands that the government provide the anti-retroviral drug nevirapine in State hospitals with the capacity to do so between now and the outcome of a further court hearing in May.
Chaskalson said the judges would give reasons in their ruling in the May hearing.
”This obliges the government to immediately comply (with the Pretoria High Court order) until this court gives its judgment,” he said.
Chaskalson added that the ruling did not mean that the government had to supply the drug ”wholesale”, but only where the State institution had the capacity and the drug was prescribed with the consent of the doctor and medical superintendent.
”This means that from today or tomorrow children’s lives can be saved at institutions where there is capacity and the doctors want to use the medicine,” Heywood said.
He spoke after silencing a group of about 30 toyi-toying and chanting TAC supporters who were celebrating the organisation’s fourth court victory over the government.
”We never wanted this fight with the government. It is unseemly to fight over people’s rights, especially with this government,” Heywood said.
The Democratic Alliance has welcomed the ruling, saying the government could have used the money wasted on court cases and appeals to roll-out the nevirapine programme instead.
Health Minister Dr Manto Tshabalala-Msimang, who was not present during the court’s ruling on Thursday, was not immediately available for comment.
A representative said the minister was occupied with the official visit by United States Health Secretary Tommy Thompson.
In the court case, senior counsel Gilbert Marcus, appearing for the Treatment Action Campaign (TAC) and two other parties, argued that nevirapine was ”the closest (thing) we have to a vaccine” and that it was between 30 and 50% effective in preventing mother-to-child transmission of HIV.
He said that South Africans were, however, faced with a situation where nevirapine could not be provided, according to government protocol, outside the state’s 18 pilot sites.
Senior counsel for the State, Marumo Moerane, earlier in the day explained that the drug was under government study to determine available and necessary resources, and the efficacy and effect of the drug.
He argued that extending the programme beyond the 18 official sites would jump the gun on these studies.
Marcus said the TAC had made its initial court application last year because of the government’s approach to State provision of nevirapine.
”Even if there is capacity, or if the (pregnant) mother is prepared to pay, or the doctor is prepared to pay out of his own pocket (this is not allowed),” Marcus said.
He said a state sector doctor who had ”whipped around” and paid to provide his patients with nevirapine had been labelled ”irresponsible”.
”Doctors who do so (prescribe nevirapine outside the pilot sites) are liable to discipline,” Marcus said.
He dismissed the State’s argument that there was no financial capacity for a full-scale roll out of a state nevirapine programme, saying University of Cape Town health economist Nicoli Nattrass had shown that provision of the drug would save government money.
The pressures of dealing with hundreds of HIV-positive babies were far greater, Marcus argued.
He also said it had never been the TAC’s case that there should be a complete roll out of the drug programme ”immediately”.
”We accept the need for a phased approach,” he said.
Marcus said interim execution orders, such as the order under argument, should not generally be appealable and applicants in this case the State would have to prove that ”irreparable prejudice of some significance” would be caused if the execution order was carried out.
This echoed the sentiments of some of the judges who questioned Moerane during his submissions earlier in the day.
Moerane argued that the state would suffer irreparable damage through the chaos which he predicted would erupt in the public health system if the high court judgment stood.
”The demand for nevirapine on a national scale would put major pressure on government resources and undo all the good work which has been done,” he said.
Earlier he also argued that there would be irreparable harm caused to discipline in the public health sector and its protocols.
Marcus argued that the government’s policy was unconstitutional because it discriminated against those not living in pilot site catchment areas.
He said there would be massive ”psychological devastation” caused to HIV-positive mothers living outside these areas.
”Saying to a mother, ‘You can’t get the drug,’ is a form of irreparable damage,” he said.
Marcus said some 70 000 babies were born to HIV-positive mothers in South Africa each year and that nevirapine had been offered to the public health sector free of charge. It only cost R10 a dose anyway, he said. – Sapa