afrol News, 18 March - The government of South Africa yesterday made known it was to pursue its appeal against the December and March High Court judgements on providing Nevirapine in the public health sector for purposes of drastically reducing mother-to-child transmission of HIV.
The original judgement of Judge Chris Botha that was handed down on 14 December 2001, ordered the South African Ministry of Health to immediately start providing Nevirapine, while the government holds it first needs to investigate whether the internationally renown medicine is effective or even dangerous. A Pretoria court on 11 March ordered the government to start the distribution of Nevirapine while the appeal was pending, holding it would save thousands of lives.
The Minister of Health, Dr Manto Tshabalala-Msimang, however remains harsh on the government's policy, doubting the effects of medical treatment of HIV/AIDS. Although it is proven that Nevirapine reduces the mother-to-child transmission of HIV by at least 50 percent, she urges for the continuation of time-consuming national testing. Several South African provinces have already broken with national policy, distributing the drug freely.
Tshabalala-Msimang yesterday informed a date had been set for the Constitutional Court to deal with government's appeal against the High Court judgement. On 2 and 3 May, the Constitutional Court will consider whether to hear the appeal by her and eight provincial ministers for health against the High Court judgement.
According to Tshabalala-Msimang, both sides to the legal dispute had been directed to argue the application for appeal in such a way that the merits of the case are fully dealt with, thereby effectively arguing the appeal at the same time. "This should bring matters to a relatively speedy conclusion," she stated.
The Minister informed she also had requested the Constitutional Court to hear a further appeal against the temporary execution order made by the High Court on 11 March. This recent High Court execution order had demanded the immediate distribution of Nevirapine, even before the Constitutional Court was to hear the Ministry's appeal. Minister Tshabalala-Msimang however does not intent to follow up this order.
- At the heart of the main appeal, according to Tshabalala-Msimang, "is the argument of the Minister and the [Provincial Ministers] for Health that the High Court stepped into the realm of policy-making in its original judgement and acted unconstitutionally in terms of the separation of state powers." She says she had decided to appeal against the recent execution order because she believed "that the same principle is at stake here."
Manto Tshabalala-Msimang however said she welcomed the fact that the Constitutional Court has chosen to expedite the hearing. "The authority of the Constitutional Court will certainly be helpful on this sensitive matter and the sooner we can bring the case to this conclusive point, the better," she says.
Meanwhile, three South African provinces, Western Cape, KwaZulu-Natal and Gauteng, have started the general and free distribution of Nevirapine in their public health facilities, defying national policy. According to KwaZulu-Natal Premier Lionel Mtshali, his Province "had to act, and may God forgive us for waiting so long." An estimated 40 percent of women giving birth in KwaZulu-Natal are HIV positive.
- This is not a matter of politics, Premier Mtshali said last month, introducing the province's Nevirapine programme. "I am a father and a grandfather. I am a God-fearing man. For me, this is a matter of principle and common decency. I have turned upside-down the scientific facts to find a reason which can justify the failure to act and ameliorate the suffering and reduce the death of so many of our children, I have found none."