"A countrywide MTCT Prevention Programme is an Ineluctable Obligation of the State" - Pretoria High Court
South Africa, 14 December 2001 — "I am overwhelmed with happiness for all HIV positive women. As a woman who gave birth to an HIV-positive baby and one who did not get the chance to use Nevirapine or AZT, I think the court has given women hope. My child has died but every child from today will have a chance to live without HIV/AIDS", Busisiwe Maqungo said in Khayelitsha today.
On 14th December 2001, Justice Chris Botha of the Pretoria High Court found in favour of the Treatment Action Campaign, the Children's Rights Centre and paediatricians represented by Dr. Haroon Saloojee of Chris Hani Baragwanath and against the Minister of Health and government on the issue of mother-to-child HIV transmission. Judge Botha said: "About one thing there must be no misunderstanding: a countrywide MTCT prevention programme is an ineluctable obligation of the State."
The Judge declared that the government policy of "prohibiting the use of Nevirapine outside the pilot sites in the public health sector is not reasonable and that it is an unjustifiable barrier to the progressive realization of the right to health care." He therefore ordered the government "to make Nevirapine available to pregnant women with HIV who give birth in the public sector, and to their babies, in public health facilities to which the respondents' present programme for the prevention of mother-to-child transmission of HIV has not yet been extended, where in the opinion of the attending medical practitioner, acting in consultation with the medical superintendent of the facility concerned, this is medically indicated, which shall at least include that the woman concerned has been appropriately tested and counselled."
The court also found that the government had violated section 27 of the Constitution that guarantees access to health care services including the right to reproductive health care. The state had not taken reasonable measures within its available resources to provide women access to programmes that prevent HIV transmission from mother to child.
Judge Botha held that "[a]ll this leads only to one conclusion: that there is no comprehensive and co-ordinated plan for a roll out of the MTCT prevention programme. At best the intention, even the keenness, to extend the programme to the whole population is expressed. There is no unqualified commitment [by government] to reach the rest of the population in any given time or at any given rate." The court ordered the government to provide a comprehensive national MTCT roll-out plan by 31 March 2002.
Dr. Haroon Saloojee representing paediatricians and other health care workers said: "The court has recognised the gravity of the situation and the need to avert avoidable and predictable infection and death in children. It also affirms the right of women to choose. This judgment is a superb Christmas present for all people with HIV/AIDS, their families and health care professionals."
Cati Vawda, Director of the Children's Rights Centre said: "Today, the court ended a medical apartheid in our country that denied poor women with HIV access to reproductive health care. This judgment is a victory for all poor people in our country and an affirmation of the rights of children. We extend our hands to government to work together to produce and implement a coherent national MTCT prevention plan."
TAC called on the government to meet with the organisation and to work together. Sipho Mthathi, said "The court has vindicated the position of TAC. For more than five years activists, nurses and doctors have attempted to convince the government of the need for a comprehensive roll-out plan. The government has failed women with HIV/AIDS, children and all people in our country. Now, it has the opportunity to heal the wounds caused by its lack of action. We urge the government to fulfil its constitutional obligations and to respect the court ruling. Government has a choice: work with TAC or face an unprecedented national and international mobilisation."
TAC thanks all the people who have helped with this case. First, thanks to all the women with HIV/AIDS who trusted TAC to act on their behalf. Also, thanks to all individuals (locally and globally) TAC members, staff, volunteers and civil society organisations who fearlessly supported the court action.
There was significant support from local experts -- thanks from TAC to: Professor Quarraisha Abdool Kariem - epidemiology
Dr. Alan Colm -- Eastern Cape HIV/AIDS Expenditure
Professor Peter Cooper -- Public sector paediatricians
Professor Peter Folb -- regulatory process
Dr. Andrew James Grant -- Rural Kwazulu-Natal Capacity
Professor Nicoli Nattrass -- economics of MTCT
Dr. Hermann Reuter -- Khayelitsha MTCT Programme
Dr. Pierre Schoeman -- Nevirapine Resistance
Professor Helen Schneider -- Health Systems Capacity
Professor Robin Wood -- Nevirapine: Safety and Efficacy
People such as Dr. Eric Goemaere and all the healthcare professionals and workers at the Khayelitsha clinics, Professor Jerry Coovadia and his colleagues at King Edward II, Dr Glenda Gray and her colleagues whose pioneering work made this victory possible. Thanx also to many other locals some preferring to remain unnamed and others whose names I may not have.
Internationally, we wish to thank many people some who contributed affidavits and others who provided their expertise -- they include:
Professor Art Ammann
Dr. Dirk Buyse
Professor Tim Farley
Professor Laura Guay
Dr. David Katzenstein
Dr. Brooks Jackson
Professor Lynne Mofenson
Professor Mark Wainberg
Professor Cathy Wilfert
Some of South Africa's best lawyers -- Mr. Geoff Budlender, Adv. Gilbert Marcus SC and Adv Bongani Majola represented TAC. Their skill made this victory possible. TAC's special thanks to them and the Legal Resouces Centre. The AIDS Law Project has been a constant source of support through difficult times in particular Mark Heywood, Althea Cornelius (who spent hours paginating and indexing the court record), Marlise Richter, Lindi Kunene, Chloe Hardy and Liesl Gerntholz.
The full judgement, highlights from the judgement and this statement will be made available on the TAC website (www.tac.org.za) within the next few hours.