Mail & Guardian (SA) 20 Dec. 2001

The government is seeking to head off a slew of future legal attacks that could force it to honour the socio-economic obligations enshrined in the Constitution.

The Department of Health will ask the Constitutional Court to overturn last week's Pretoria High Court judgement that it must provide anti-retroviral drugs in the public sector to all HIV-positive pregnant women. The court action was brought by the Treatment Action Campaign (TAC).

But the fight has now gone beyond whether the government has to provide nevirapine; what is now at stake is the relationship between the legal and policy-making arms of the state.

Legal experts said this week that the TAC judgement did not allow the courts to set policy - which was the domain of the government - but did set a precedent that could expose the state to similar legal challenges by obliging it to channel resources to the neediest members of society.

On the issue of preventing mother-to-child transmission (MTCT) of HIV, the health department is tacitly bowing to the legal arguments and public pressure. Backing down from its defence that it was already doing the best it could under the circumstances, the department is now admitting the need to develop a "dynamic and well-articulated MTCT prevention programme". The TAC's victory has implications far beyond the provision of drugs and counselling to pregnant women. It is one of the foundations of a legal framework that forces the government to use resources to fulfil its constitutional obligations to ensure the socio-economic rights of all South Africans.

In a statement this week the minister and MECs for health said: "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." Under the separation of powers the courts are the guardians of the Constitution, while policy-making is the province of the executive. In all constitutional democracies there are tensions between the different powers, but in South Africa the relationship between the courts and the government is exacerbated by the active nature of the Constitution. It was created in the aftermath of apartheid to counter the ramifications and legacy of that particular crime against humanity. One constitutional expert pointed out that, unusually, South Africa's Constitution is not a neutral one. "Our Constitution is very self-consciously a response to a history of systematic deprivation and discrimination in the socio-economic and not just the political sphere."

The TAC case had built mainly on a previous judgement, in the so-called "Grootboom case", which saw the government forced to alter its housing policy in the Western Cape to provide housing for children and their parents. That judgement laid clear the government's constitutional responsibility to the neediest members of society. Socio-economic rights introduce extra tension between the executive and the judiciary because the courts can actively influence government spending policies. South Africa's Constitution is unusual for including such rights: the United States Constitution, for example, while it entrenches the right to the pursuit of happiness, does not guarantee socio-economic rights. The TAC says it will not oppose the government's right to appeal.

Chairperson Zackie Achmat said: "It is clear that public pressure and TAC court action has made the government listen. Despite their face-saving appeal, the government has agreed to organise the widest possible stakeholder consultation. We urge them to make the appeal to the Constitutional Court an urgent one because lives are at stake. In addition we ask them to issue a clear statement that doctors are aware of their ethical obligation to prescribe nevirapine where they know a woman has HIV and where they have the capacity to counsel. TAC and its allies will participate fully in any consultation but we urge the government to ensu re that it is based on scientific understanding and not ideological issues."