After losing a marathon battle over nevirapine the government can no longer use the courts to delay its roll-out of anti-retrovirals
Belinda Beresford
The nevirapine genie was let out of the bottle this week by the Constitutional Court, which effectively forced the government to provide the antiretroviral drug to save unborn children from HIV infection.
On Thursday the court rejected a government application for leave to appeal against an interim execution order requiring it to supply nevirapine to public health facilities that request the drug. If given to an HIV-positive pregnant woman during labour and the infant shortly after birth, nevirapine can reduce the chances of transmitting the virus to her child by up to half.
The decision by the highest court in the land means that the government has been forced into a corner. It can no longer use the courts to drag its heels on nevirapine provision.
In the words of the High Court, the drug must now be provided “where in the opinion of the attending medical practitioner, acting in consultation with the medical superintendent of the facility concerned, this is medically indicated, which shall at least include that the woman concerned has been appropriately tested and counselled”.
The national and provincial ministers for health will be in contempt of court if they fail to provide nevirapine in terms of the order.
The Treatment Action Campaign (TAC), which led the legal charge on nevirapine, is gearing up to lay contempt of court charges if the drug is not provided to health facilities that request it.
The NGO is in contact with several hospitals and clinics that say they have the capacity to properly give nevirapine. The government declared in court that there was no institution outside the 18 nationwide pilot sites with the facilities to so.
This week’s legal arguments were marked by repeated strong questioning by the Constitutional Court judges. Some of them pointed out that if there was indeed no capacity to provide nevirapine outside the pilot sites, the execution order was redundant and there was no need to appeal against it.
There were also sharp exchanges between some judges and the state counsel, Marumo Moerane, on government challenges on the safety of nevirapine. Moerane had to concede that after almost 11 months of drug provision at some pilot sites, no serious problems had been reported among women or children treated with the drug.
On May 2 and 3 the Constitutional Court will hear an appeal against the original judgement forcing the government to provide a detailed roll-out plan for nevirapine in state health facilities. The execution order remains in place until judgement on that final appeal which is not expected until late June at the earliest.
But the Court’s decision this week fails to resolve the legal points debated during this week’s hearings, as it merely issued the order and said the reasoning would be given at a later date. Among the issues at stake is whether such an execution order is subject to appeal and whether such an order lies in the jurisdiction of the high court.
The Constitutional Court was at pains to stress that its decision in no way prejudges the appeal in May and that the execution order is a temporary one.
Even if the government wins the final legal round, it will find it extremely difficult to return to scratch by restricting the provision of nevirapine to the 18 pilot sites.
It appears as if the TAC has effectively won its campaign, almost regardless of the final court decision.