Minister of Health and Others v Treatment Action Campaign and Others, Case CCT 8/02

Access our heads of arguments and press release.

CLC (through the collaborative efforts of its Projects: Socio-Economic Rights, Children's Rights and Gender Projects) intervened as amici curiae together with the Institute for Democracy in South Africa (IDASA) in the case between the Minister of Health and Treatment Action Campaign. The case involved the enforcement of the right of access to health care and the obligation of the State to make Nevirapine available to pregnant women living with HIV so as to prevent mother-to-child transmission (MTCT) of HIV.

In December 2001, the Pretoria High Court ordered the State to immediately make Nevirapine available to pregnant women with HIV who give birth in the public sector, and to their babies, where in the opinion of the attending medical practitioner, acting in consultation with the medical superintendent of the facility concerned, this is medically indicated. This order thus obliges government to make nevirapine available in medical facilities beyond the pilot sites where there is capacity to administer the drug, in particular where the women concerned can be appropriately tested and counseled. The court also declared that the State has a duty, and accordingly ordered the latter, to devise and implement in a reasonable manner an effective national programme to reduce MTCT, including nevirapine or other appropriate medicine, the provision of voluntary counselling and testing, and formula milk. This order relates to the progressive "roll-out" of an effective MTCT-prevention programme throughout the country. In addition, the court ordered the State to deliver, before 31 March 2002, a report setting out the steps that it had taken in compliance with this order.

The State took the matter on appeal to the Constitutional Court. The case was argued before the Constitutional Court on 2, 3 and 6 May 2002, and judgment was reserved. Apart from filing written submissions, CLC and IDASA were given an oral hearing. CLC was represented by Advocates Karrisha Pillay, Alan Dodson and Wim Trengove SC. Wim Trengove presented oral argument on behalf of the amici in the Court.

CLC's intervention in the case was motivated by its commitment to ensure the effective protection and enforcement of socio-economic rights by the Courts. The interpretation accorded to socio-economic rights by the Constitutional Court in the TAC MTCT case will determine the extent to which the most vulnerable and disadvantaged in our society can use the courts to protect the rights that are essential for their survival and human dignity.