SENIOR counsel for the Treatment Action Campaign (TAC), Gilbert Marcus, is to address the Constitutional Court on Friday on whether judges can make orders which change government policy.
This will take up at least the morning of the second day of the government’s appeal against a Pretoria High Court judgment ordering the Health Department to make the drug available to all HIV-positive pregnant women at state hospitals, where medically indicated and the women have been tested and counselled.
On Thursday the court heard argument on the issue from senior counsel for the government, Marumo Moerane.
Moerane argued that Pretoria High Court Judge Chris Botha’s ruling, in August last year, was a policy-making decision.
”We submit that policy-making is a matter for the legislature and the executive,” he said. He argued that the court was entitled to rule that certain legislation was unconstitutional, but that Botha had then gone on to submit a new policy for the government to follow.
”The order should have been that the health authorities should come up with a new policy,” he said.
Justice Johann Kriegler then asked Moerane how a court could then award a litigant ”appropriate relief” as allowed in the constitution.
In answer Moerane simply reiterated his position: ”We submit this does not empower the court to grant an order making policy”.
Justice Laurie Ackermann answered: ”That’s unfair to the judge (Botha)… he left (the policy) to the professionals.”
Marcus did not have the chance to reply by the close of court. ? Sapa