SAPA 26 March 2002

Pretoria -- Other provinces could refuse to implement the decision by the Pretoria High Court order compelling government to provide nevirapine to HIV-positive pregnant women at state hospitals with the capacity to do so, Justice Minister Penuell Maduna said on Monday.

"This is the decision of just one court and purely on the basis of our legal system it is not binding on the rest of the country," he said on SABC television news.

Maduna's representative Paul Setsetse said all high courts were on an equal footing. "No high court is superior to another high court."

"Only a decision by the Constitutional Court is binding on a high court. They have the right the exercise their own jurisdiction on the matter.

Treatment Action Campaign secretary Mark Heywood said Maduna's comments were "utter rubbish".

"This is the first that the government have made a suggestion like this. If this was the case, then why were the Minister of Health and seven of the provinces fighting so long" he asked."

Health Minister Manto Tshabalala-Msimang was in Botshabelo in the Free State on Monday and would only comment once she had read the judgment and consulted her legal counsel.

Judge Chris Botha on Monday ordered the government to implement an execution order he granted earlier this month, requiring it to provide nevirapine for the prevention of mother-to-child-transmission beyond the existing 18 pilot sites, pending the outcome of an effort to appeal in the Constitutional Court against his original order in this regard.

Botha made the original order in December last year.

On March 11, he granted the government a positive certificate allowing it to ask the Constitutional Court to hear its appeal against the order. At the same time, he granted the execution order to the Treatment Action Campaign (TAC).

Last week, the government asked Botha for a positive certificate allowing it to pursue its appeal on the execution order as well in the Constitutional Court. This failed.

The judge granted an urgent application by the TAC, paediatrician Haroon Saloojee of the organisation Save Our Babies and the Children's Rights Centre for the implementation of the execution order.

The Medicines Control Council last week alerted Tshabalala-Msimang to serious concerns which the United States' Food and Drug Administration (FDA) had expressed about a nevirapine test conducted in Uganda.

It said questions had been raised about the reporting and documentation of the study on the use of Viramune — of which nevirapine is the active ingredient — for the prevention of mother-to-child-transmission of HIV.

The MCC said it would review nevirapine in the light of those developments.

It was argued on behalf of the government that nevirapine's possible de-registration was crucial in the case. But Botha said it was irrelevant, as that possibility had existed all along. "What is conspicuous, is that the (government has) not produced any evidence, after almost a year of dispensing nevirapine to approximately one tenth of the affected population, of any deleterious effects encountered in its programme," Botha said. In argument for the TAC and its co-applicants, it was contended that at least 10 lives would be saved through the execution order. "In essence I had to balance the loss of lives against prejudice that could never amount to more than inconvenience. I find it unlikely that another court will conclude that the choice that I made was wrong," Botha said.

"In the end the choice was between tolerating the loss of life and tolerating inconvenience, no matter how many lives were at stake."

On an SABC interview on Sunday, Tshabalala-Msimang was asked if government would be prepared to follow a court order to roll out its nevirapine programme.

She said: "No, I think the courts and the judiciary must also listen to the authorities — regulatory authorities — both from this country and the United States."

Asked if she was saying no, Tshabalala-Msimang said: "Yes and no. I'm saying no."

Anglican Archbishop emeritus Desmond Tutu on Monday said he hoped the government would abide by the court's decision. "Since we are a democracy I think that is what everyone expects."

TAC secretary Mark Heywood said failure to comply with the court order would be a violation of the Constitution. "We need a clear statement from the highest level of government whether the court and court orders will be respected." Democratic Alliance representative Sandy Kalyan said it was to be hoped that the minister was not serious about ignoring an order of court.

"Along that path lies the destruction of the law." Heywood said the judgment entitled all doctors at state hospitals who believed that there was the capacity to prescribe nevirapine, to request its supply.

He said all major health bodies in the world supported the drug. These included the Centres for Disease Control, the World Health Organisation, the United Nations AIDS Programme and the American National Institutes for Health.

"There is no question about its safety and efficacy."

Almost 9 000 women at the pilot sites had used nevirapine, and no deaths or serious adverse side-effects were reported.

The judge's statements made for a strong case for patients and doctors to sue the government for failure to provide the medication and to prevent enormous suffering, Heywood said.

United Democratic Movement secretary-general Malizole Diko said: "It is indeed a pity that government's arrogant stance in the matter served no purpose other than wasting taxpayers' money. The UDM calls on government to lay the debate to rest."

HIV-positive Prudence Mabele, director of the Positive Women's Network, said: "We're so tired, burying people on a daily basis."