RESPONSE TO JUDGEMENT ON NEVIRAPINE

By Dr. Tshabalala-Msimang

19 Dec. 2001

Yesterday I met with the MECs for Health from eight provinces for the purpose of receiving a comprehensive briefing on the High Court judgement concerning the use of Nevirapine in the public sector in an effort to reduce mother-to-child transmission of HIV.

We jointly considered and debated the judgement in terms of its impact on the future of the MTCT Programme and the relationship between the judiciary and the executive in matters of public policy.

And, having done so, we decided to respond by pursuing a double course of action. On the one hand - for reasons explored below - we felt we could not allow the court judgement to remain unchallenged. On the other, we are determined that an appeal against the judgement must not stand in the way of developing a dynamic and well-articulated MTCT Prevention Programme.

Government takes the view that policy, including policy on HIV/AIDS, may be guided by firm principles but that it is not cast in stone. We decided at yesterday's meeting to conduct a further appraisal of the current MTCT Programme at the Health Minmec in January next year, taking into account the latest data from the current MTCT sites.

On the basis of this, we will organise a broader stakeholder consultation on the MTCT Programme to share the lessons of the pilot sites and to chart plans for the future of this programme on the basis of broad consensus.

The consultation will be conducted in an inclusive and open manner. And we hope that this will reassure the public that we are committed to a successful, accessible MTCT Programme.

When it came to the legal issues, we were quite clear that an appeal against Justice Botha's judgement is unavoidable. Having examined the reasoning of the judgement and the orders made, we came to the conclusion that this judgement could have far-reaching implications in defining our constitutional democracy and in shaping the State's responsibility for the delivery of social services.

We have therefore instructed our legal counsel to appeal the judgement to the Constitutional Court as soon as practicable. We consider it critical, in order to create certainty in the public policy domain, to seek the wisdom of the Constitutional Court on this matter.

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.

Issued by: Ministry of Health