CASE LAW

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CASE LAW

in Tilburg Law Review

References

12002 (5) SA 721, 2002 (10) BCLR 1033 (CC) (hereinafter 'TAC'). Judgment available at . The decision was an appeal against a decision of the Transvaal Provincial Division of the High Court, Treatment Action Campaign and Others v Minister of Health and Others 2002 (4) BCLR 356 (T) (hereinafter `TAC1'), available at . 2 They South African Constitutional Court is court of final instance in constitutional matters and highest court in South Africa (section 167 of the Constitution of the Republic of South Africa, 1996) (hereinafter 'the Constitution'). HIV is an acronym for the human immunodeficiency virus, a virus that leads to

the acquired immune deficiency syndrome (AIDS). The two earlier cases dealing with constitutional socio-economic rights are Soobramoney v Minister of Health, KwaZulu- Natal 1998 (1) SA 765, 1997 (12) BCLR 1696 (CC) (hereinafter 4Soobramoney')(decision of state hospital to refuse patient access to renal dialysis treatment at state cost violates neither right to life, nor right not to be refused emergency medical treatment, nor right to have access to health care services); and Government of the Republic of South Africa and Others v Grootboom and Others 2001 (1) SA 46, 2000 (11) BCLR 1169 (CC) (hereinafter 'Grootboom')(failure in state housing policy to make provision for basic housing needs of those in housing crisis violates right to have access to adequate housing). Regarding Soobramoney, see P. Alston & C. Scott, Adjudicating constitutional priorities in a transnational context: A comment on Soobramonev's legacy and Grootboom's promise, 16 SAJHR, 206 (2000). Regarding Grootboom, see R. Bos, Case of Government of RSA and others v Grootboom and others, 9 TFLR, 417 (2002). See also, in general, S. Liebenberg, South Africa's 's evolving jurisprudence on socio-economic rights: An effective tool in challenging poverty? 6 LAW, DEMOCRACY AND DEVELOPMENT, 159 (2002). Both cases are available at . For South African literature on TAC, see D. Bilchitz, Towards a reasonable approach to the minimum core: Having the .foundation.s for future socio-economic righf.s jurisprudence, 19 SAJHR, 1 (2003); S. Khoza, Reducing the mother-to-child transmission of HIV, 3:2 ECONOMIC AND SOCIAL RIGHTS REVIEW, 2 (2002); and M. Heywood, Contempt or compliance? The TAC case after the Constitutional Court judgment, 4:1 I ESR REViEw 7 (2003) (hereinafter Heywood, Contempt). 4 Grootboom, note 3 above.

5 It is generally acknowledged that the Grootboom-decision, although an important legal precedent, has not had desired impact on government policy and the position of the homeless in South Africa that was hoped for before the decision was handed down. I review some of these criticisms and some of the reasons for this perceived failure below in sections 3.1 (c) and 4 below. 6 An estimated 4.68 million South Africans (10% of the population) are HIV positive (Treatment Action Campaign v Minister of Health 2002 (4) BCLR 356 (T) at 359). ' TAC1, note 1 above, at 359.

8 The HIVNET012 trial, conducted in Uganda, and the so-called SAINT trial, conducted in South Africa, show that Nevirapine reduces mother-to-child transmission of HIV at birth by as much as 50%. The South African Medicines Control Council (the body responsible for certifying the safety and efficacy of medicines in South Africa, created by the Medicines and Related Substances Act 101 of 1965) certified in 1998 that Nevirapine was safe and effective for use in preventing MTCT of HIV at birth. The World Health Organisation further recommended the medicine for the prevention of MTCT of HIV at birth in January 2002 (TAC, note 1 above, para [12]). For purposes of prevention of MTCT of HIV at birth, it requires the administration of a single oral dose to the mother just before birth, together with a single oral dose to the child within 72 hours after the birth. The manufacturers of the drug also offered it to the South African govemment for free for a period of five years.

�° The Treatment Action Campaign's political and legal struggle against government, and the context within which it was waged, was recently exhaustively documented by Mark Heywood, one of the leaders of the TAC. See, in general, M. Heywood, Preventing mother- to-child HIV transmission in South Africa: Background strategies and outcomes of the Treatment Actiou Campaign case against the Minister of Health, 19 SAJHR, 278 (2003) (hereinafter Heywood, Prevention). 11 TAC 1, note 1 above, at 359. 12 These sections read as follows: 27. (1) Everyone has the right to have access to - (a) Health care services, including reproductive health care (b) ...

(c) ... (2) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of [this right]. 13 section 7(2) of the Constitution requires the state to "respect, protect, promote and fulfil" the rights in the bill of rights, implying that all those rights, including socio-economic rights impose both positive and negative duties on (at least) the state. "■TACl,notel 1 above, at 385. 151d, at 386 - 387. 16 Id, at 387. This part of the order reads as follows: "5. Each of the respondents is ordered to deliver, before 31 March 2002, a report or reports which set out, under oath:

5.1 what he or she has done to implement the order in paragraph 4 [the order compelling the state to devise a comprehensive plan to deal with MTCT of HIV] 5.2 what further steps he or she will take to implement the order in paragraph 4, and when he or she will take each such steps. 6. The applicants may within a month of delivery of such reports deliver their replies, under oath, to the respondents' reports. 7. The respondents may within two weeks of delivery of such reports deliver their answers to the replies of the applicants. 8. The application is postponed to a date to be fixed by the Registrar for the consideration and determination of the said reports, replies and answers." Regarding the use of supervisory interdicts in socio-economic rights cases, see W. Trengove, Judicial remedies for violations of socio- economic rights, 1:4 ESR REVIEW 8 at 9 (1999). See also August v Electoral Commission 1999 (3) SA 1, 1999 (4) BCLR 363 (CC) paragraph [42], for an example of such a supervisory interdict used by the Constitutional Court (judgment available at ). 17 The High Court order was handed down on 14 December 2001. The High Court refused leave to appeal against its decision. Government applied for such leave to the Constitutional Court. This application, as well as the substance of the appeal was to be heard by the Constitutional Court on 2 and 3 May 2002. The effect of this application was to suspend the implementation of the order of the High Court until the appeal to the Constitutional Court was finalised. On application by the TAC, the High Court on 1 1 March 2002 handed down an execution order requiring government, pending the final determination of the substantive appeal by the Constitutional Court, to implement that part of the High Court order compelling it to make Nevirapine available at public health facilities outside of the designated pilot sites. Govemment promptly applied to the Constitutional Court for leave to appeal against this execution order. This application for leave to appeal was dismissed by the Constitutional Court on 4 April 2002 (the decision is reported as Minister of Health and

Others v Treatment Action Campaign and Others (2) 2002 (10) BCLR 1075 (CC)). The reasons for the refusal of leave to appeal against the execution order were provided by the Constitutional Court in a later judgment, Minister of Health and Others v Treatment Action Campaign and Others (No 1) 2002 (5) SA 703 (CC). The effect of this dismissal was that the execution order handed down by the High Court on 11 March 2002 came into effect and that government was required immediately to make Nevirapine available to be administered at all public health facilities where, in the opinion of the attendant physician and his or her superintendent it was medically indicated for MTCT of HIV. However, this requirement was in effect only until the Constitutional Court handed down its judgment in the substantive appeal (this occurred on 5 July 2002). A further judgment of the Constitutional Court's relevant to but separate from its decision in the substantive appeal is reported as In Re Certain Amicus Curiae Applications: Minister of Health and Others v Treatment Action Campaign and Others 2002 (5) SA 713 (CC). This judgment dealt with and dismissed an application to be admitted as amicus curiae to the main appeal, and an application by one of the existing amici curiae to adduce further evidence during the hearing before the Constitutional Court. All three of these additional judgments are available at www.law.wits.ac.za. 18 TAC, note I above, paragraph [18].

19 in, paras [23] and [33]-[34] and [39]. 2°ld, para [37]. 21 Id, paras [57]-[66].

22 Id, para [80]. z3 �bid. 24 Id, para [95]. 25 in, para [135].

zb Grootboom, note 3 above, para [34]. 27 Id, para [38]. 28 Id, para [41 ]. z9 /d, paras [39]-[44]. 30 Id, paras [29]-[33].

31 Id, para [69]. 3z TAC, note 1 above, para [23]. 33 Id, paras [26]-[39]. 34 Id, paras [38]-[39]. 35 Id, paras [80] and [95].

36 Grootboom, note 3 above, paras [39]-[44]. 37 TAC., note 1 above, para [123]. 38 Heywood, Prevention, note 10 above, at 287 and 307.

39 The High Court in that case granted their application for an order directing government to provide them with temporary shelter on that basis. See Grootboom v Oostenberg Municipality (2000) 3 BCLR 277 (C). Grootboom,, note 3 above, paras [76]-[79]. See, for instance S. Liebenberg, note 3 above, at 173.

az TAC, note 1 above, para [76]. 43 Id, para [79].

44 Grootboom, note 3 above, para [41 ]. °5 TAC, note 1 above, para [96] 4,1 Id, paras [98] - [ 11 l ]. 47 Id, paras [106] and [113]. ].

48 Id, para [ 129]. a9 See, .for instance, in general, Heywood, Contempt, note 3 above. so K, Pillay, Implementing Grootboom: Supervision needed, 3:1 ESR REVIEW 13 (2002). 1 See, for instance D. Bilchitz, note 3 above.

52 vor an overview of the difficulties experienced in implementing the TAC order, see, in general, Heywood, Contempt, note 3 above and Heywood, Prevention, note 10 above, at 314. 53 Heywood, note 10 above, at 112.

sa For such positive responses to Grootboom see, in general, R. Bos, note 3 above; P. de Vos, Grootboom, the right of access to housing and substantive equality as contextual fairness, 17 SAJHR, 258 (2001); S. Liebenberg, The right to social assistance The implications of Grootboom for policy reform in South Africa, 17 SAJHR, 232 (2001); and C.R. Sunstein, Social and economic rights? Lessons from South Africa, 11 1 CONSTITUTIONAL FORUM, 123 (2001). ). 55 See, in general, K. Pilllay, note 50 above; K. Pillay, Implementation of Grootboom: Implications for the enforcement of socio- economic rights, 2 LAW, DEMOCRACY AND DEVELOPMMENT, 255 (2002); and T. Roux, Understanding Grootboom - A response to Cass R Sunstein, 12 CONSTITUTIONAL FORUM, 112 (2002).

sb Cabinet Statement on HIV/Aids (17 April 2002), availabe through . 57 Both announced that they would commence the provision of Nevirapine at all public health facilities where the capacity existed to administer it. See Heywood, Prevention, note 10 above, at 294 and at 303-304. The Westem Cape provincial government (not under ANC control at the time) had also been providing Nevirapine and AZT universally at al public health facilities in that province all along (Heywood, note 10 above, at 292). 581d, at 315.

s9 This position was adopted by South African President Thabo Mbeki in October 1999 and has been a persistent theme of government policy on HIV//Aids ever since. It is expressed in probably its most vitriolic form in an anonymous policy document, reportedly authored by an ANC collective: Castro Hlongwane, caravans, cats, geese, foot and mouth and statistics: HIVllAids and the struggle for the humanisation of the African, January 2002, anonymous. bo TAC, note 1 above, para [62]. 61 The extent to which the TAC case led to the scrutiny of government policy and the eventual (public) identification of the inconsistencies

and factual errors on which it was based highlights an important aspect of socio- economic rights litigation. The TAC's political struggle against government's policy stance on the prevention and reduction of MTCT of HIV at birth was throughout hampered both by government's practice not formally to state and explain its policy position (so that they were able to shift position from day to day) and its practice to manipulate information about Nevirapine in the public discourse. The litigation effectively dealt with both these problems: it required govemment clearly to outline a specific policy position and to describe the motivation for that position so that they could be held to account for it; and it allowed the claims and assumptions upon which government's position was based to be scrutinised in the dispassionate arena of reasoned judicial discourse. In this context govemment's position simply did not hold up. This was not only significant within the confines of the courtroom. Because the hearings in the Constitutional Court were extensively reported in the different news media, the methodical refutation of claims that govemment was elsewhere able to represent with a veneer of scientific legitimacy, became part of the public debate also. �2 TAC, note 1 above, para [ 12]. 63 Nevirapine had shown various contra- indications when used on a regular basis to treat Aids. The use of this information, applicable only in cases of long term and regular use of Nevirapine, to dispute the safety of the single dose required for prevention of MTCT, is an example of the manipulation of information that characterised the Department of Health's case throughout. For further

examples, see Heywood, note 10 above, at 296-297 and 307-308. 64 As quoted by Heywood, note 10 above, at 307. Justice Kriegler during the hearing of the substantive appeal, was much more blunt, putting it to the legal representatives of government that, by insisting that Nevirapine could only be provided where optimal infrastructural support existed, and would not be provided elswhere, under "second best" circumstances, as it would not be so effective then, despite the fact that Nevirapine even then would effectively reduce MTCT of HIV, govemment was making a choice between "dead babies and second best", and was choosing dead babies. Personal notes taken at appeal hearing, 2 May, 2002. bs TAC, note 1 above, paras [88]-[89].

66 Id, paras [48]-[49] and [71]. ].

67 see,ingeneral Heywood, Prevention, note 10 above. See also the Constitutional Court's remarks in this regard - TAC, note 1 above, para [20]. Heywood,, Prevention, note 10 above, at 298.

69 Id, at 310.

701bid.711d, at 315.

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