TREATMENT ACTION CAMPAIGN
Save Our Babies
Children's Rights Centre
19th DECEMBER 2001
MINISTER TSHABALALA-MSIMANG:
Yesterday, the Minister of Health and her colleagues met to consider the
judgment of the Pretoria High Court on mother-to-child HIV transmission.
TAC had hoped that government would accept the judgment and move forward to
develop a coherent HIV/AIDS programme. The government's reponse has
two-sides.
Following the court order and public support for TAC, the health Ministry
announced that it will review its MTCT programme in January 2002 through a
"broader stakeholder consultation". TAC welcomes this action and we will
participate at every level to ensure that a reasonable and constitutional
programme for the whole country is developed. TAC hopes that this
"invitation" is not simply a temporary expedient to allay the anger of civil
society. Even though our experience of negotiation with government for over
five years on this issue is a negative one, we will act to make this
consultation a success.
Public pressure and TAC court action has finally made the South African
government listen. Now we hope that it will act reasonably and with humility
to develop a national mother-to-child HIV prevention programme.
However, in their response to the judgment of the Pretoria High Court, the
Minister of Health and Health MECs for eight provinces have also decided to
challenge the court. This is regrettable. Their legal grounds for the
appeal - "courts have no right to make policy"- demonstrate a profound
misunderstanding of constitutional democracy.
Government action or inaction is not above the law. Judge Botha did not
make policy on MTCT prevention. He found that the government did not have
reasonable and constitutional policy. He directed the government to develop
such a policy and to present it to the court by 31 March 2002. In a
constitutional state, all courts have a legal power and duty to review
policies and laws when any person alleges a violation of fundamental rights.
We urge the government not to take one step forward and two steps back.
Because 200 children every day become infected with HIV and because women
suffer tremendous anguish as a result, TAC urges Minister Manto
Tshabalala-Msimang and her colleagues not to delay their appeal in any way.
The best way forward is still, to drop the appeal and to work with civil
society on a programme to present to the court with the support of TAC, the
Children's Rights Centre and Save Our Babies.
TAC is confident that its position will stand the test of the Constitutional
Court. We will continue to fight for the rights of women, children and
people with HIV/AIDS. Let us work together to give women a choice and
children a chance.
Siphokazi Mthathi (TAC)
Dr. Haroon Saloojee (Save Our Babies)
Cati Vawda (Children's Rights Centre)
[TAC Statement ENDS]
Response of Health Minister and MECs to Judgment on Nevirapine
19 December 2001
Yesterday I met with the MECs for Health from eight provinces for the
purpose of receiving a comprehensive briefing on the High Court judgment
concerning the use of Nevirapine in the public sector in an effort to reduce
mother-to-child transmission of HIV.
We jointly considered and debated the judgment in terms of its impact on
the future of the MTCT Programme and the relationship between the judiciary
and the executive in matters of public policy.
And, having done so, we decided to respond by pursuing a double course of
action. On the one hand - for reasons explored below - we felt we could not
allow the court judgment to remain unchallenged. On the other, we are
determined that an appeal against the judgment must not stand in the way of
developing a dynamic and well-articulated MTCT prevention programme.
Government takes the view that policy, including policy on HIV/AIDS, may be
guided by firm principles but that it is not cast in stone. We decided at
yesterday's meeting to conduct a further appraisal of the current MTCT
programme at the Health Minmec in January next year, taking into account the
latest data from the current MTCT sites.
On the basis of this, we will organize a broader stakeholder consultation
on the MTCT Programme to share the lessons of the pilot sites and to chart
plans for the future of this programme on the basis of broad consensus.
The consultation will be conducted in an inclusive and open manner. And we
hope that this will reassure the public that we are committed to a
successful, accessible MTCT programme.
When it came to the legal issues, we were quite clear that an appeal
against Justice Botha's judgment is unavoidable. Having examined the
reasoning of the judgment and the orders made, we came to the conclusion
that this judgment could have far-reaching implications in defining our
constitutional democracy and in shaping the State's responsibility for the
delivery of social services.
We have therefore instructed our legal counsel to appeal the judgment to
the Constitutional Court as soon as practicable. We consider it critical, in
order to create certainty in the public policy domain, to seek the wisdom of
the Constitutional Court on this matter.
We would like to emphasise that this appeal is not an attempt to obstruct
the development of the MTCT Programme. Rather it is aimed at clarifying a
constitutional and jurisdictional matter which - if left vague - could throw
executive policy making into disarray and create confusion about the
principle of the separation of powers, which is a cornerstone of our
democracy.
Dr Manto Tshabalala-Msimang
Minister of Health
Inquiries to:
SAVE LIVES, ACT URGENTLY WITH REASON AND HUMILITY
MEDIA RELEASE
Sibani Mngadi (082 772 0161) and Jo-Anne Collinge (082 787 0202)