By Steven Swindells

Reuters 19 Dec. 2001

Johannesburg -- South Africa's government said on Wednesday it would appeal a high court ruling that HIV-positive pregnant women are entitled to a drug found to reduce a newborn's risk of contracting the virus.

"We have instructed our legal counsel to appeal the judgment to the Constitutional Court on this matter," Minister of Health Manto Tshabalala-Msimang said in a statement.

The plan to appeal provoked an outcry from AIDS activists and child health workers, who argue that President Thabo Mbeki's government has acted too slowly to fight mother-to-child transmission of HIV, which causes AIDS.

"This will result in further unnecessary infections," AIDS activist group Treatment Action Campaign (TAC) spokesman Nathan Geffen told Reuters.

The South African Council of Churches urged the government to get the drug where it was needed and the white-led opposition Democratic Alliance (DA) called the government's move madness.

"It equals a death sentence for thousands of babies that could otherwise be saved... Once again, they are fiddling while Rome burns," DA leader Tony Leon said.

The Pretoria High Court ruled on Friday that the government had a constitutional duty to expand access to the anti-retroviral drug nevirapine, which has been shown to cut mother-to-child infection rates by up to 50 percent.

The TAC had launched the court action, arguing that the government had a duty to offer nevirapine. It said it was confident it would win the appeal, as fundamental rights were being denied under current government AIDS policy.

Between 70,000 and 100,000 babies are born HIV-positive every year in South Africa, which has more people living with HIV-AIDS than any other country. Five million of South Africa's 45 million people, or one in nine, are estimated to be living with HIV.

As many as one in three mothers at some rural antenatal clinics are infected with HIV, according to government figures.

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The judge had ordered the health department to return to court by March 31 to show how it would offer a national nevirapine programme, which the government has refused to do because of cost and safety concerns.

The South African government said the high court ruling had consequences for the role of the executive and the judiciary under the constitution's separation of powers.

"We came to the conclusion that this judgment could have far-reaching implications in defining our constitutional democracy and in shaping the state's responsibility for the delivery of social services," Tshabalala-Msimang said.

The government said it would develop a programme centred on preventing mother-to-child transmission of HIV-AIDS rather than providing nevirapine.

There are side effects from nevirapine, but medical experts say they are limited and the drug is a life-saver. Germany's Boehringer Ingelheim, which makes nevirapine, has offered to provide the drug free to South Africa for five years.

The government's approach and commitment to curbing the pandemic has been widely criticised, especially since Mbeki has questioned widely held findings about HIV, including whether it causes AIDS.

Mbeki has said anti-retrovirals do as much harm as the condition they are meant to treat and he has appointed so-called "AIDS dissidents," who believe AIDS is caused by recreational drug use, to his advisory panel on the disease.