JUSTICE MINISTER RUBBISHES COURT’S AIDS RULING
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
"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
"Only a decision by the Constitutional Court is binding on a high
court. They have the right the exercise their own jurisdiction on
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
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
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
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
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."