Emergenza HIV - Corte Sud Africana 02/08
 It is the applicants= case that the measures adopted by government to provide access to
health care services to HIV- positive pregnant women were deficient in two material respects:
first, because they prohibited the administration of nevirapine at public hospitals and clinics
outside the research and training sites; and second, because they failed to implement a
comprehensive programme for the prevention of mother-to-child transmission of HIV.
 The two questions are interrelated and a consequence of government=s policy as it was
when these proceedings were instituted. The use of nevirapine to reduce the risk of mother-to-
child transmission of HIV was confined to mothers and newborn children at hospitals and clinics
included in the research and training sites. At all other public hospitals and clinics the use of
nevirapine for this purpose was not provided for. Public hospitals and clinics outside the
research and training sites were not supplied with nevirapine for doctors to prescribe for the
prevention of mother-to-child transmission. Only later would a decision be taken as to whether
nevirapine and the rest of the package would be made available elsewhere in the health system.
That decision would depend upon the results at the research and training sites. The applicants
contend that this is not reasonable and that government ought to have had a comprehensive
national programme to prevent mother-to-child transmission of HIV, including voluntary
counselling and testing, antiretroviral therapy and the option of substitute feeding.
29 this Court
 In Grootboom, relying on what is said in the First Certification Judgment,
29 Above n 10 para 78:
the very minimum, socio-economic rights can be negatively protected from improper
invasion.@ 33 THE COURT
held that [section 26(1)] does not expressly say so, there is, at the very least, a
negative obligation placed upon the State and all other entities and persons to desist from
preventing or impairing the right of access to adequate housing.@
That obligation@ applies equally to the section 27(1) right of access to
care services, including reproductive health care@. This is relevant to the challenges to the
measures adopted by government for the provision of medical services to combat mother-
to-child transmission of HIV.
 The applicants= contentions raise two questions, namely, is the policy of confining the
supply of nevirapine reasonable in the circumstances; and does government have a
comprehensive policy for the prevention of mother-to-child transmission of HIV.
The policy confining nevirapine to the research and training sites
 In deciding on the policy to confine nevirapine to the research and training sites, the cost
of the drug itself was not a factor. This is made clear in the affidavit of Dr Ntsaluba. He says:
admit that the medicine has been offered to the first to ninth respondents for free for a
period of five years by the manufacturer. The driving cost for the provision of
Nevirapine however is not the price to be attached to the medicine but the provision of
the formula feeding for those persons who are not in a position to afford formula feeds in
order to discourage breast feeding and other costs incurred to provide operational
30 Above n 6 para 34. 34 THE COURT
structures which are appropriately and properly geared toward counselling and testing
persons who are candidates for the administration of Nevirapine.@
He also says that
public health sector hospitals, as it is, are under tremendous pressure, and while it
may be ideal for such doctors to go on to provide Nevirapine with the appropriate advice,
counselling and follow-up care, is presently not immediately attainable. It is imperative
that appropriate support structures for counselling, follow-up etc. be put in place to
ensure that Nevirapine is effective and that it delivers the promised benefits.@
 The costs that are of concern to the government are therefore the costs of providing the
infrastructure for counselling and testing, of providing formula feed, vitamins and an antibiotic
drug and of monitoring, during bottle-feeding, the mothers and children who have received
nevirapine. These costs are relevant to the comprehensive programme to be established at the
research and training sites. They are not, however, relevant to the provision of a single dose of
nevirapine to both mother and child at the time of birth.
 The implementation of a comprehensive programme to combat mother-to-child
transmission of HIV, such as that provided at the research and training sites, is no doubt the
ideal. The real dispute between the parties on this aspect of the case is not, however, whether
this optimum was feasible but whether it was reasonable to exclude the use of nevirapine for the
treatment of mother-to-child transmission at those public hospitals and clinics where testing and
counselling are available and where the administration of nevirapine is medically indicated.
 In substance four reasons were advanced in the affidavits for confining the administration
35 THE COURT
of nevirapine to the research and training sites. First, concern was expressed about the efficacy
of nevirapine where the package@ is not available. The concern was that the
benefits of nevirapine would be counteracted by the transmission of HIV from mother to infant
through breastfeeding. For this reason government considered it important to provide breastmilk
substitutes to the mother and a of care for mother and infant including vitamin
supplements and antibiotics. They considered it necessary to establish a system and to put in
place the infrastructure necessary for that purpose, to provide advice and counselling to the
mothers to ensure that the substitute and supplements were used properly and to monitor
progress to determine the effectiveness of the treatment. There are significant problems in
making this package available. There are problems of resources in so far as counselling and
testing are concerned and budgetary constraints affecting the expansion of facilities at public
hospitals and clinics outside the research and training sites. There is a cultural objection to
bottle-feeding that has to be overcome, and in rural areas there are also hazards in bottle-feeding
by mothers who do not have access to clean water. There are still millions of people living in
such circumstances and effective treatment of infants by the provision of nevirapine at birth by
no means resolves all difficulties.
 Secondly, there was a concern that the administration of nevirapine to the mother and her
child might lead to the development of resistance to the efficacy of nevirapine and related
antiretrovirals in later years.
 Thirdly, there was a perceived safety issue. Nevirapine is a potent drug and it is not
known what hazards may attach to its use. 36 THE COURT
 Finally, there was the question whether the public health system has the capacity to
provide the package. It was contended on behalf of government that nevirapine should be
administered only with the package@ and that it was not reasonably possible to do this on a
comprehensive basis because of the lack of trained counsellors and counselling facilities and also
budgetary constraints which precluded such a comprehensive scheme being implemented.
 Related to this was a submission raised in argument that from a public health point of
view, there is a need to determine the costs of providing the breastmilk substitute, the
supplementary package and the necessary counselling and monitoring. Without knowing the full
extent of these costs and the efficacy of the treatment, it would be unwise for government to
commit itself to a wide-ranging programme for treating mother-to-child transmission that might
prove to be neither efficacious nor sustainable.
 We deal with each of these issues in turn.
 First, the concern about efficacy. It is clear from the evidence that the provision of
nevirapine will save the lives of a significant number of infants even if it is administered without
the full package and support services that are available at the research and training sites.
Mother-to-child transmission of HIV can take place during pregnancy, at birth and as a result of
breastfeeding. The programme in issue in this case is concerned with transmission at or before
birth. Although there is no dispute about the efficacy of nevirapine in materially reducing the
37 THE COURT
likelihood of transmission at birth, the efficacy of the drug as a means of combating mother-to-
child transmission of HIV is nevertheless challenged. How this comes about requires some
 The challenge was first expressed in the Minister=s letter of 6 August 2001 which
31 The first of a number of what the Minister called most
precipitated these proceedings. A[o]ur
pressing concerns@ was put in the following terms:
is evidence that NVP is effective in the prevention of intra-partum transmission.
However, there is also evidence that a percentage of the babies who, as a result of the use
of NVP, are born HIV negative, nevertheless sero-convert and become HIV positive in
the months that follow their birth. For this reason, the registered claim for NVP in South
Africa is not that it can prevent MTCT but that it can prevent intra-partum transmission.
It appears from the data at hand that the most compelling reason for this sero-conversion
is the fact that the HIV positive mothers were breast-feeding their babies.@
The letter adds that
we do not have the formal results [of a test reported a year before], we have
reason to believe that breastfeeding continues to pose a risk which reverses the benefits
of medical intervention.@
Then, in the answering affidavit of Dr Ntsaluba, this doubt about the efficacy of
31 See para 11 above. 38 THE COURT
intrapartum administration of nevirapine is repeated:
is contra-indicated where Nevirapine is used to reduce or prevent MTCT
of the HIV. It must be remembered that MTCT of HIV-1 through breastmilk negates all
the gains of the use of Nevirapine in the mother during delivery and in the newborn child
within 72 hours after birth. Thus, it is not safe to expose a largely breastfeeding
populace to Nevirapine, unless certain stringent measures are taken to ensure that
breastfeeding would not occur when the medicine is taken to treat MTCT of the HIV.@
These allegations by the Minister in her letter and by Dr Ntsaluba are, however, not
supported by the data on which Dr Ntsaluba relies. Indeed, the wealth of scientific
material produced by both sides makes plain that sero-conversion of HIV takes place in
some, but not all, cases and that nevirapine thus remains to some extent efficacious in
combating mother-to-child transmission even if the mother breastfeeds her baby.
 As far as resistance is concerned, the only relevance is the possible need to treat the
mother and/or the child at some time in the future. Although resistant strains of HIV might exist
after a single dose of nevirapine, this mutation is likely to be transient. At most there is a
possibility of such resistance persisting, and although this possibility cannot be excluded, its
weight is small in comparison with the potential benefit of providing a single tablet of nevirapine
to the mother and a few drops to her baby at the time of birth. The prospects of the child
surviving if infected are so slim and the nature of the suffering so grave that the risk of some
resistance manifesting at some time in the future is well worth running.
39 THE COURT
 The evidence shows that safety is no more than a hypothetical issue. The only evidence
of potential harm concerns risks attaching to the administration of nevirapine as a chronic
medication on an ongoing basis for the treatment of HIV-positive persons. There is, however, no
evidence to suggest that a dose of nevirapine to both mother and child at the time of birth will
result in any harm to either of them. According to the current medical consensus, there is no
reason to fear any harm from this particular administration of nevirapine. That is why its use is
recommended without qualification for this purpose by the World Health Organization.
 There is also cogent South African endorsement of the safety of nevirapine in general and
specifically for the prevention of mother-to-child transmission. As indicated earlier, the
Medicines Control Council registered nevirapine in 1998 (affirming its quality, safety and
efficacy) and later expressly approved its administration to mother and infant at the time of birth
in order to combat HIV. Although it recommends that if this is done the infant should be bottle-
fed and not breastfed, that is to enhance the efficacy of nevirapine and not because it is
considered to be dangerous. The risk to be guarded against is the transmission of HIV from
mother to child through breastfeeding. That is a risk that exists whether nevirapine is
administered or not. Far from being harmful, there is evidence that even with breastfeeding the
risk of infection is materially reduced by administering nevirapine at birth.
 The decision by government to provide nevirapine to mothers and infants at the research
and training sites is consistent only with government itself being satisfied as to the efficacy and
safety of the drug. These sites cater for approximately 10% of all births in the public sector and
40 THE COURT
it is unthinkable that government would gamble with the lives or health of thousands of mothers
and infants. In any event, the research and training sites are intended primarily to train staff and
to study the operational problems of the comprehensive prevention of mother-to-child
transmission package. As to the research component at these sites, it is intended to focus on the
efficacy of the treatment rather than its safety. There is no evidence to suggest that a single dose
of nevirapine administered at birth is likely to harm children during the first two years of their
lives. The risk of nevirapine causing harm to infants in the public health sector outside the
research and training sites can be no greater than the risk that exists at such a site or where it is
administered by medical practitioners in the private sector.
 In any event the main thrust of government=s case was that nevirapine should be
administered in circumstances in which it would be most effective, not that it should not be
administered because it is dangerous. Dr Ntsaluba seems to acknowledge this in his affidavit
where he says:
I have pointed out earlier, to extend the programme to every hospital in each
province is practically and financially not feasible. It would have been ideal but while
that is a goal that the First to Ninth Respondents are working towards, it is not
implementable at once.@
 It is this that lies at the heart of government policy. There are obviously good reasons
from the public health point of view to monitor the efficacy of the package@ provided at the
research and training sites and determine whether the costs involved are warranted by the
efficacy of the treatment. There is a need to determine whether bottle-feeding will be
implemented in practice when such advice is given and whether it will be implemented in a way
41 THE COURT
that proves to be more effective than breastfeeding, bearing in mind the cultural problems
associated with bottle-feeding, the absence of clean water in certain parts of the country and the
fact that breastfeeding provides immunity from other hazards that infants growing up in poor
households without access to adequate nutrition and sanitation are likely to encounter. However,
this is not a reason for not allowing the administration of nevirapine elsewhere in the public
health system when there is the capacity to administer it and its use is medically indicated.
 According to Dr Simelela, there have been significant problems even at the research and
training sites in providing a comprehensive programme using nevirapine for the prevention of
mother-to-child transmission. A lack of adequately trained personnel, including counsellors, a
shortage of space for conducting counselling and inadequate resources due to budgetary
constraints made it impossible to provide such a programme.
 Although the concerns raised by Dr Simelela are relevant to the ability of government to
make a package@ available throughout the public health sector, they are not relevant to the
question whether nevirapine should be used to reduce mother-to-child transmission of HIV at
those public hospitals and clinics outside the research sites where facilities in fact exist for
testing and counselling.
Considerations relevant to reasonableness
 The policy of confining nevirapine to research and training sites fails to address the needs
of mothers and their newborn children who do not have access to these sites. It fails to
42 THE COURT
distinguish between the evaluation of programmes for reducing mother-to-child transmission and
the need to provide access to health care services required by those who do not have access to the
 In Grootboom this Court held that
be reasonable, measures cannot leave out of account the degree and extent of the
denial of the right they endeavour to realise. Those whose needs are the most urgent and
whose ability to enjoy all rights therefore is most in peril, must not be ignored by the
measures aimed at achieving realisation of the right.@
The fact that the research and training sites will provide crucial data on which a
comprehensive programme for mother-to-child transmission can be developed and, if
financially feasible, implemented is clearly of importance to government and to the
country. So too is ongoing research into safety, efficacy and resistance. This does not
mean, however, that until the best programme has been formulated and the necessary
funds and infrastructure provided for the implementation of that programme, nevirapine
must be withheld from mothers and children who do not have access to the research and
training sites. Nor can it reasonably be withheld until medical research has been
completed. A programme for the realisation of socio-economic rights must
balanced and flexible and make appropriate provision for attention to . . . crises and
to short, medium and long term needs. A programme that excludes a significant segment
32 Above n 6 para 44. 43 THE COURT
of society cannot be said to be reasonable.@
 The applicants do not suggest that nevirapine should be administered indiscriminately to
mothers and babies throughout the public sector. They accept that the drug should be
administered only to mothers who are shown to be HIV-positive and that it should not be
administered unless it is medically indicated and, where necessary, counselling is available to the
mother to enable her to take an informed decision as to whether or not to accept the treatment
recommended. Those conditions form part of the order made by the High Court.
33 Id para 43. 44 THE COURT
 In dealing with these questions it must be kept in mind that this case concerns particularly
those who cannot afford to pay for medical services. To the extent that government limits the
supply of nevirapine to its research sites, it is the poor outside the catchment areas of these sites
who will suffer. There is a difference in the positions of those who can afford to pay for services
and those who cannot. State policy must take account of these differences.
 The cost of nevirapine for preventing mother-to-child transmission is not an issue in the
present proceedings. It is admittedly within the resources of the state. The relief claimed by the
applicants on this aspect of the policy, and the order made by the High Court in that regard,
contemplate that nevirapine will only be administered for the prevention of mother-to-child
transmission at those hospitals and clinics where testing and counselling facilities are already in
place. Therefore this aspect of the claim and the orders made will not attract any significant
 In evaluating government=s policy, regard must be had to the fact that this case is
concerned with newborn babies whose lives might be saved by the administration of nevirapine
to mother and child at the time of birth. The safety and efficacy of nevirapine for this purpose
have been established and the drug is being provided by government itself to mothers and babies
at the pilot sites in every province.
34 Id para 35-7. 45 THE COURT
 The administration of nevirapine is a simple procedure. Where counselling and testing
facilities exist, the administration of nevirapine is well within the available resources of the state
and, in such circumstances, the provision of a single dose of nevirapine to mother and child
where medically indicated is a simple, cheap and potentially lifesaving medical intervention.
Children s rights
 There is another consideration that is material. This case is concerned with newborn
children. Sections 28(1)(b) and (c) of the Constitution provide that
child has the right
(a) . . . .
(b) to family care or parental care, or to appropriate alternative care when
removed from the family environment;
(c) to basic nutrition, shelter, basic health care services and social services@.
The applicants and the amici curiae relied on these provisions to support the order made
by the High Court.
 In Grootboom it was held that paragraphs (b) and (c) must be read together.
ensure that children are properly cared for by their parents or families, and that
they receive appropriate alternative care in the absence of parental or family care. The
section encapsulates the conception of the scope of care that children should receive in
our society. Subsection 1(b) defines those responsible for giving care while ss 1(c) lists
various aspects of the care entitlement.
It follows from ss 1(b) that the Constitution contemplates that a child has the right to
parental or family care in the first place, and the right to alternative appropriate care only
46 THE COURT
where that is lacking.@
 Counsel for the government, relying on these passages in the Grootboom judgment,
submitted that section 28(1)(c) imposes an obligation on the parents of the newborn child, and
not the state, to provide the child with the required basic health care services.
 While the primary obligation to provide basic health care services no doubt rests on those
parents who can afford to pay for such services, it was made clear in Grootboom that
does not mean . . . that the State incurs no obligation in relation to children who
are being cared for by their parents or families.@
 The provision of a single dose of nevirapine to mother and child for the purpose of
protecting the child against the transmission of HIV is, as far as the children are concerned,
essential. Their needs are urgent@ and their inability to have access to nevirapine
profoundly affects their ability to enjoy all rights to which they are entitled. Their rights are
in peril@ as a result of the policy that has been adopted and are most affected by a rigid and
inflexible policy that excludes them from having access to nevirapine.
35 Id para 76-7.
36 Id para 78. 47 THE COURT
 The state is obliged to ensure that children are accorded the protection contemplated by
section 28 that arises when the implementation of the right to parental or family care is
lacking. Here we are concerned with children born in public hospitals and clinics to mothers
who are for the most part indigent and unable to gain access to private medical treatment which
is beyond their means. They and their children are in the main dependent upon the state to make
health care services available to them.
Evaluation of the policy to limit nevirapine to research and training sites
 Government policy was an inflexible one that denied mothers and their newborn children
at public hospitals and clinics outside the research and training sites the opportunity of receiving
a single dose of nevirapine at the time of the birth of the child. A potentially lifesaving drug was
on offer and where testing and counselling facilities were available it could have been
administered within the available resources of the state without any known harm to mother or
child. In the circumstances we agree with the finding of the High Court that the policy of
government in so far as it confines the use of nevirapine to hospitals and clinics which are
research and training sites constitutes a breach of the state=s obligations under section 27(2) read
37 Id para 78.
38 Id para 77. 48 THE COURT
with section 27(1)(a) of the Constitution.
 Implicit in this finding is that a policy of waiting for a protracted period before taking a
decision on the use of nevirapine beyond the research and training sites is also not reasonable
within the meaning of section 27(2) of the Constitution.
Does government have a comprehensive plan to combat mother-to-child transmission of HIV?
 The issues relating to the alleged failure to implement a comprehensive national
programme for the prevention of mother-to-child transmission are intertwined with the
averments concerning the refusal to permit nevirapine to be prescribed at public hospitals and
clinics outside the research and training sites. Foundational to all aspects of the case was the
challenge to the policy concerning the use of nevirapine.
 Because of the policy restricting the use of nevirapine, the counsellors at the hospitals
and clinics outside the research and training sites have had no training in its use for the
prevention of mother-to-child transmission of HIV. That, however, should not be a major
concern. According to the National programme for the prevention of mother to child
s guide, the total training time required to prepare
transmission of HIV (MTCT): Trainer =
counsellors for the mother-to-child transmission programme is 15 hours spread over 10 sessions
of 12 hours each. For counsellors who are already trained in the programme and merely need to
be updated regarding the use of nevirapine, the time must be very much shorter.
 It is therefore important to know what facilities exist outside the research and training
49 THE COURT
sites for testing and counselling. The applicants alleged in the founding affidavit that testing and
counselling were not comprehensively available outside the research and training sites. This
allegation was not substantiated by any direct evidence and most of the evidence was directed to
government=s policy concerning nevirapine, the central issue in the case. The allegation that
there was no programme dealing with mother-to-child transmission outside the research and
training sites was denied by Dr Ntsaluba. He referred to a number of policy documents which
deal with this topic. These documents include the HIV/AIDS & STD strategic plan for South
2005. Various goals and strategies are set out in this plan. Strategies include
introducing counselling services in all new testing sites, expanding the use of rapid testing
methods, increasing the proportion of workplaces that have counselling services and promoting
access to such services.
 Reference is also made to a policy document dealing with managing HIV in children.
This document is dated March 2000 and includes a section on reducing mother-to-child
transmission which deals with a number of interventions. These include voluntary counselling
and HIV testing of pregnant women. It is stated that pregnant women should be offered
counselling and an HIV test@ and a detailed rationale is given.
 Another policy document dated May 2000 states explicitly that testing and
counselling must be made available to all pregnant women@ (emphasis added). It goes on to say
that the benefits to a woman of knowing her HIV status include the ability to make informed
choices about feeding options, earlier access to care for both mother and child, the opportunity to
terminate pregnancy where desired and legal, and the ability to make informed decisions about
50 THE COURT
sexual practices and future fertility.
 In August of the same year there was a further policy document dealing with the feeding
of infants of HIV-positive mothers. It proceeds on the assumption that voluntary counselling and
testing for HIV are necessary. In the same month policy guidelines for such testing were
prescribed. It is made clear that testing cannot be carried out without informed consent,
including pre-test counselling. It does not focus on where or to what extent counselling should
be available, except to say that where a health facility lacks the appropriate pre- or post-test
counselling facilities, the patient should be referred to an agency or facility that can provide the
 In their replying affidavits the applicants do not seek to contradict these policy
documents, but say that if correct they show latent capacity outside the research and training sites
to prescribe nevirapine for prevention of mother-to-child transmission where it is medically
indicated. They also introduce an affidavit by Professor Schneider to show that testing and
counselling facilities, though not available throughout the public health sector, are in fact widely
available at hospitals and clinics outside the research and training sites. Government does not
dispute this but says that such counsellors are not trained in counselling for the use of nevirapine
for the reduction of mother-to-child transmission.
 The affidavits by the heads of the provincial health departments deal with their budgets
and the difficulties confronting them in expanding existing facilities for addressing mother-to-
child transmission and in training counsellors. What is apparent from these affidavits is that
51 THE COURT
some provinces had more extensive facilities for testing and counselling than others; also that at
the time the proceedings commenced the budgets of most of the health departments were
strained, and in many parts of the country there were problems in implementing health policies.
Testing and counselling
 The evidence shows that at the time of the commencement of these proceedings there was
in place a comprehensive policy for testing and counselling of HIV-positive pregnant women.
The policy was not, however, implemented uniformly. Professor Schneider=s research is the only
evidence on record concerning the extent of the testing and counselling facilities at fixed clinics
in the provinces. She refers to a number of studies particularly two surveys conducted by the
Health Systems Trust in 1998 and 2000. Her conclusions on the basis of these surveys were as
follows: Percentage of fixed clinics
Province Percentage of fixed clinics offering HIV counselling
offering HIV testing
Eastern Cape 44,0 91,2
Free State 87,5 96,0
Gauteng 100,0 92,9
KwaZulu-Natal 40,0 80,0
Mpumalanga 79,0 60,7
Northern Cape 100,0 91,7
39 Fixed clinics are contrasted with mobile clinics concerning which there are no statistics on the record.
52 THE COURT
Northern Province 14,6 68,8
North West 53,1 71,9
Western Cape 100,0 96,7
It is not clear whether these statistics include facilities at public hospitals, or whether it is
assumed that such facilities exist there and that what was being addressed was the extent
of the facilities at places other than hospitals. The statistics are relevant in any event
because a significant proportion of pregnant women are counselled at clinics and treated
there. Indeed, over 84% of South African women deliver in the health system, that is,
under the supervision of a health professional.
 Some of the policy documents also refer to the substitution of formula-feeding for
breastfeeding without setting that as policy. The HIV/AIDS policy guideline on prevention of
mother-to-child HIV transmission and management of HIV positive pregnant women (May 2000)
states in its introduction that appropriate alternatives to breastfeeding should be made available
and affordable for HIV-positive women. Professor Schneider=s research shows that many
hospitals and clinics have stocks of formula feed to be provided as a substitute for breastfeeding
where appropriate. It is not clear, however, that a policy commitment is made to achieving this.
In none of the policy documents is it said that government will actually provide the formula feed.
The furthest that the policy on the provision of feeding substitutes seems to go is the statement
in the HIV/AIDS policy guideline on feeding of infants of HIV positive mothers (August 2000)
53 THE COURT
which indicates that the policy concerning the provision of breastmilk substitutes (such as infant
formula feed) by the health care services needs to be taken up by the provincial authorities and
by any other relevant authority. The point is made here that the cost of providing breastmilk
substitutes must also be compared with or offset by the savings in preventing newborn babies
being infected with HIV and consequently needing care.
Summary of the relevant evidence
 To sum up, the position when the application was launched was this. Two research and
training sites had been selected at hospitals in each province to use nevirapine for the prevention
40 These research and training sites were linked to access
of mother-to-child transmission of HIV.
points at satellite clinics. There were approximately 160 access points. (During the course of the
proceedings these had increased to over 200.) At the project hospitals and satellite clinics a full
package for the treatment of mother-to-child transmission was to be available. This included
testing, counselling, nevirapine if medically indicated, the provision of formula feed as a
substitute for breastfeeding, aftercare including the provision of vitamins and antibiotics, and
monitoring of the progress of the children. At all other public hospitals and clinics nevirapine
would not be available. There was, however, to be a programme for testing and counselling,
including counselling on matters related to breastfeeding. Formula feed was available at some
hospitals and clinics but it was not a requirement of the programme to combat mother-to-child
transmission outside the research and training sites that it be made available to HIV-positive
mothers of newborn babies who would like to avoid breastfeeding but cannot afford the formula
40 The Western Cape adopted a programme for the progressive expansion of the supply of nevirapine for such
use at its hospitals and clinics. 54 THE COURT
feed. Although the programme envisaged the progressive establishment of testing and
counselling facilities at all hospitals and clinics, progress had been slow in certain parts of the
country, particularly in clinics in the Northern Province, Mpumalanga, the Eastern Cape and
KwaZulu-Natal. The bulk of the rural population lives in these provinces where millions of
people are still without access to clean water or adequate sanitation.
Findings concerning government =
 In the present case this Court has the duty to determine whether the measures taken in
respect of the prevention of mother-to-child transmission of HIV are reasonable. We know that
throughout the country health services are overextended. HIV/AIDS is but one of many illnesses
that require attention. It is, however, the greatest threat to public health in our country. As the
government=s HIV/AIDS & STD strategic plan for South Africa 2000 B
the last two decades, the HIV pandemic has entered our consciousness as an
incomprehensible calamity. HIV/AIDS has claimed millions of lives, inflicting pain and
grief, causing fear and uncertainty, and threatening the economy.@
 We are also conscious of the daunting problems confronting government as a result of the
pandemic. And besides the pandemic, the state faces huge demands in relation to access to
education, land, housing, health care, food, water and social security. These are the socio-
economic rights entrenched in the Constitution, and the state is obliged to take reasonable
legislative and other measures within its available resources to achieve the progressive
realisation of each of them. In the light of our history this is an extraordinarily difficult task.
Nonetheless it is an obligation imposed on the state by the Constitution.
55 THE COURT
 The rigidity of government=s approach when these proceedings commenced affected its
policy as a whole. If, as we have held, it was not reasonable to restrict the use of nevirapine to
the research and training sites, the policy as a whole will have to be reviewed. Hospitals and
clinics that have testing and counselling facilities should be able to prescribe nevirapine where
that is medically indicated. The training of counsellors ought now to include training for
counselling on the use of nevirapine. As previously indicated, this is not a complex task and it
should not be difficult to equip existing counsellors with the necessary additional knowledge. In
addition, government will need to take reasonable measures to extend the testing and counselling
facilities to hospitals and clinics throughout the public health sector beyond the test sites to
facilitate and expedite the use of nevirapine for the purpose of reducing the risk of mother-to-
child transmission of HIV.
The powers of the courts
 Counsel for the government contended that even if this Court should find that
government policies fall short of what the Constitution requires, the only competent order that a
court can make is to issue a declaration of rights to that effect. That leaves government free to
pay heed to the declaration made and to adapt its policies in so far as this may be necessary to
bring them into conformity with the court=s judgment. This, so the argument went, is what the
doctrine of separation of powers demands.
 In developing this argument counsel contended that under the separation of powers the
making of policy is the prerogative of the executive and not the courts, and that courts cannot
56 THE COURT
make orders that have the effect of requiring the executive to pursue a particular policy.
 This Court has made it clear on more than one occasion that although there are no bright
lines that separate the roles of the legislature, the executive and the courts from one another,
there are certain matters that are pre-eminently within the domain of one or other of the arms of
41 All arms of government should be sensitive to and respect this
government and not the others.
separation. This does not mean, however, that courts cannot or should not make orders that have
an impact on policy.
41 Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others 1996 (1) SA 984 (CC);
1996 (1) BCLR 1 (CC) para 180 and 183; South African Association of Personal Injury Lawyers v Heath
and Others 2001 (1) SA 883 (CC); 2001 (1) BCLR 77 (CC) para 46; Soobramoney above n 6 para 29;
Grootboom above n 6 para 41; Dawood and Another v Minister of Home Affairs and Others; Shalabi and
Another v Minister of Home Affairs and Others; Thomas and Another v Minister of Home Affairs and
Others 2000 (3) SA 936 (CC); 2000 (8) BCLR 837 (CC) para 63-4; National Coalition for Gay and
Lesbian Equality and Others v Minister of Home Affairs and Others 2000 (2) SA 1 (CC); 2000 (1) BCLR
39 (CC) para 66. 57 THE COURT
 The primary duty of courts is to the Constitution and the law, they must apply
impartially and without fear, favour or prejudice@. The Constitution requires the state to
protect, promote, and fulfil the rights in the Bill of Rights@. Where state policy is
challenged as inconsistent with the Constitution, courts have to consider whether in formulating
and implementing such policy the state has given effect to its constitutional obligations. If it
should hold in any given case that the state has failed to do so, it is obliged by the Constitution to
say so. In so far as that constitutes an intrusion into the domain of the executive, that is an
intrusion mandated by the Constitution itself. There is also no merit in the argument advanced
on behalf of government that a distinction should be drawn between declaratory and mandatory
orders against government. Even simple declaratory orders against government or organs of
state can affect their policy and may well have budgetary implications. Government is
constitutionally bound to give effect to such orders whether or not they affect its policy and has
44 this Court set aside a provincial
to find the resources to do so. Thus, in the Mpumalanga case,
government=s policy decision to terminate the payment of subsidies to certain schools and
ordered that payments should continue for several months. Also, in the case of August the
Court, in order to afford prisoners the right to vote, directed the Electoral Commission to alter its
election policy, planning and regulations, with manifest cost implications.
42 Section 165(2) of the Constitution.
43 Section 7(2).
44 Premier, Mpumalanga, and Another v Executive Committee, Association of State-Aided Schools, Eastern
Transvaal 1999 (2) SA 91 (CC); 1999 (2) BCLR 151 (CC).
45 August and Another v Electoral Commission and Others 1999 (3) SA 1 (CC); 1999 (4) BCLR 363 (CC).
58 THE COURT
 The rights that the state is obliged to protect, promote and fulfil@ include the
socio-economic rights in the Constitution. In Grootboom this Court stressed that in so far as
socio-economic rights are concerned
State is required to take reasonable legislative and other measures. Legislative
measures by themselves are not likely to constitute constitutional compliance. Mere
legislation is not enough. The State is obliged to act to achieve the intended result, and
the legislative measures will invariably have to be supported by appropriate,
well-directed policies and programmes implemented by the Executive. These policies
and programmes must be reasonable both in their conception and their implementation.
The formulation of a programme is only the first stage in meeting the State=s obligations.
The programme must also be reasonably implemented. An otherwise reasonable
programme that is not implemented reasonably will not constitute compliance with the
46 Above n 6 para 42. 59 THE COURT
 A dispute concerning socio-economic rights is thus likely to require a court to evaluate
state policy and to give judgment on whether or not it is consistent with the Constitution. If it
finds that policy is inconsistent with the Constitution it is obliged in terms of section 172(1)(a) to
make a declaration to that effect. But that is not all. Section 38 of the Constitution contemplates
that where it is established that a right in the Bill of Rights has been infringed a court will grant
relief@. It has wide powers to do so and in addition to the declaration that it is
obliged to make in terms of section 172(1)(a) a court may also any order that is just and
equitable@. 48 this Court held that
 In Fose v Minister of Safety and Security
relief will in essence be relief that is required to protect and enforce the
Constitution. Depending on the circumstances of each particular case the relief may be a
declaration of rights, an interdict, a mandamus or such other relief as may be required to
ensure that the rights enshrined in the Constitution are protected and enforced. If it is
necessary to do so, the courts may even have to fashion new remedies to secure the
protection and enforcement of these all-important rights.@
The judgment (per Ackermann J) went on to state:
have no doubt that this Court has a particular duty to ensure that, within the bounds of
the Constitution, effective relief be granted for the infringement of any of the rights
entrenched in it. In our context an appropriate remedy must mean an effective remedy,
47 Section 172(1)(b).
48 1997 (3) SA 786 (CC); 1997 (7) BCLR 851 (CC).
49 Id para 19 (footnote omitted). 60 THE COURT
for without effective remedies for breach, the values underlying and the right entrenched
in the Constitution cannot properly be upheld or enhanced. Particularly in a country
where so few have the means to enforce their rights through the courts, it is essential that
on those occasions when the legal process does establish that an infringement of an
entrenched right has occurred, it be effectively vindicated. The courts have a particular
responsibility in this regard and are obliged to new tools= and shape innovative
remedies, if needs be, to achieve this goal.@
50 Id para 69 (footnote omitted). 61 THE COURT
 In Mohamed v President of the RSA, this Court dealt with an argument similar to that
addressed to us by counsel for the appellants, in these terms:
would it necessarily be out of place for there to be an appropriate order on the
relevant organs of State in South Africa to do whatever may be within their power to
remedy the wrong here done to Mohamed by their actions, or to ameliorate at best the
consequential prejudice caused to him. To stigmatise such an order as a breach of the
separation of State power as between the Executive and the Judiciary is to negate a
foundational value of the Republic of South Africa, namely supremacy of the
Constitution and the rule of law. The Bill of Rights, which we find to have been
infringed, is binding on all organs of State and it is our constitutional duty to ensure that
appropriate relief is afforded to those who have suffered infringement of their
 The power to grant mandatory relief includes the power where it is appropriate to
exercise some form of supervisory jurisdiction to ensure that the order is implemented. In
51 Mohamed and Another v President of the Republic of South Africa and Others (Society for the Abolition of
the Death Penalty in South Africa and Another Intervening) 2001 (3) SA 893 (CC); 2001 (7) BCLR 685
52 Id para 71 (footnotes omitted). 62 THE COURT
Pretoria City Council v Walker, Langa DP said:
respondent could, for instance, have applied to an appropriate court for a
declaration of rights or a mandamus in order to vindicate the breach of his s 8 right. By
means of such an order the council could have been compelled to take appropriate steps
as soon as possible to eliminate the unfair differentiation and to report back to the Court
in question. The Court would then have been in a position to give such further ancillary
orders or directions as might have been necessary to ensure the proper execution of its
53 1998 (2) SA 363 (CC); 1998 (3) BCLR 257 (CC) para 96.
63 THE COURT
 This Court has said on other occasions that it is also within the power of courts to make a
mandatory order against an organ of state and has done so itself. For instance, in the Dawood
case, a mandamus was issued directing the Director-General of Home Affairs and immigration
officials to exercise the discretion conferred upon them in a manner that took account of the
55 In the August case a mandatory order, coupled with an
constitutional rights involved.
injunction to submit a detailed plan for public scrutiny, was issued by this Court against an organ
of state the Electoral Commission.
 We thus reject the argument that the only power that this Court has in the present case is
to issue a declaratory order. Where a breach of any right has taken place, including a socio-
54 Sanderson v Attorney-General, Eastern Cape 1998 (2) SA 38 (CC); 1997 (12) BCLR 1675 (CC) para 39;
New National Party of South Africa v Government of the Republic of South Africa and Others 1999 (3) SA
191 (CC); 1999 (5) BCLR 489 (CC) para 46.
55 Above n 41 para 67 and 70.
56 Above n 45. 64 THE COURT
economic right, a court is under a duty to ensure that effective relief is granted. The nature of the
right infringed and the nature of the infringement will provide guidance as to the appropriate
relief in a particular case. Where necessary this may include both the issuing of a mandamus
and the exercise of supervisory jurisdiction.
57 Hoffmann above n 1 para 45. 65 THE COURT
 An examination of the jurisprudence of foreign jurisdictions on the question of remedies
shows that courts in other countries also accept that it may be appropriate, depending on the
circumstances of the particular case, to issue injunctive relief against the state. In the United
States, for example, frequent use has been made of the structural injunction a form of
supervisory jurisdiction exercised by the courts over a government agency or institution. Most
famously, the structural injunction was used in the case of Brown v Board of Education
the US Supreme Court held that lower courts would need to retain jurisdiction of Brown and
similar cases. These lower courts would have the power to determine how much time was
necessary for the school boards to achieve full compliance with the Court=s decision and would
also be able to consider the adequacy of any plan proposed by the school boards effectuate a
transition to a racially nondiscriminatory school system@.
58 Brown et al v Board of Education of Topeka et al 347 US 483 (1954) (Brown I) and Brown et al v Board of
Education of Topeka et al 349 US 294 (1955)(Brown II).
59 Brown II id 300-1. See too Swann et al v Charlotte-Mecklenburg Board of Education et al 402 US 1
(1971) where the Supreme Court gave some general guidelines to assist courts and school authorities in the
implementation of school desegregation focusing on various techniques which could be employed to
ensure that desegregation took place more expeditiously.
66 THE COURT
 Even a cursory perusal of the relevant Indian case law demonstrates a willingness on the
part of the Indian courts to grant far-reaching remedial orders. Most striking in this regard is the
decision in M.C. Mehta v State of Tamil Nadu and Others where the Supreme Court granted a
wide-ranging order concerning child labour that included highly detailed mandatory and
 Although decisions of the German Federal Constitutional Court are mostly in the form of
declaratory orders, the Court also has the power to prescribe for a temporary period which steps
61 The most far-
have to be taken in order to create a situation in conformity with the Basic Law. 62
reaching execution order was probably that made by the Court in the Second Abortion Case,
declaring several provisions of the Criminal Code unconstitutional and void and replacing them
60  6 SCC 756.
61 This power is derived from Article 35 of the Federal Constitutional Court Act which reads:
its decision the Federal Constitutional Court may state by whom it is to be executed;
in individual instances it may also specify the method of execution.@
62 BVerfGE 88, 208. 67 THE COURT
by a detailed interim law to remain in place until new legislation came into force.
 In Canada, it appears that both the supreme and the lower courts have the power to issue
63 Canadian courts have, however, tended to be
mandatory orders against organs of state.
relatively cautious in this regard. For example, in Eldridge v British Columbia (Attorney
64 the Supreme Court of Canada considered a declaration of unconstitutionality
preferable to kind of injunctive relief@ on the basis that are myriad options available
to the government that may rectify the unconstitutionality of the current system@. The Canadian
courts have also tended to be wary of using the structural injunction.
 In the United Kingdom, although injunctive relief may be granted against officers of the
Crown, the House of Lords has held that this should only be done in the
limited circumstances. In the majority of situations so far as final relief is
concerned, a declaration will continue to be the appropriate remedy on an application for
judicial review involving officers of the Crown. As has been the position in the past, the
Crown can be relied upon to co-operate fully with such declarations.@
63 See for example, the Supreme Court=s decision in Reference re: Manitoba Language Rights (1985) 19 DLR
(4th) 1 and the decision of the High Court of Ontario in Marchand v Simcoe County Board of Education et
al (1986) 29 DLR (4th) 596.
64 (1997) 151 DLR (4th) 577 (SCC) para 96.
65 See Doucet-Boudreau v Nova Scotia (Department of Education) (2001) 203 DLR (4th) 128 para 50 where
the Nova Scotia Court of Appeal refused to exercise supervisory jurisdiction on the basis that there is no
in this country . . . of occasions when the administrative or legislative branches
of government have refused to comply with court ordered remedies under the Charter.@
66 In re M.  1 AC 377 (HL) at 422-3. Where it would be more convenient to leave it to the applicant to
return to court with a complaint that government=s duties, as declared by the court, had not been complied
with, it was considered preferable to give mere declaratory relief, rather than a mandamus. See for example
R. v Secretary of State for the Home Department, Ex parte Anderson  1 QB 778 at 795.
+1 anno fa
La dispensa fa riferimento alle lezioni di Diritto Costituzionale Italiano e Comparato, tenute dalla Prof. ssa Lucia Scaffardi nell'anno accademico 2008.
Il documento riporta in lingua originale il testo della sentenza n. 02/08 della Corte Sud Africana relativa al diritto di ricevere cure idonee contro il virus dell'AIDS, ancora pandemico in zona.
I contenuti di questa pagina costituiscono rielaborazioni personali del Publisher Atreyu di informazioni apprese con la frequenza delle lezioni di Diritto Costituzionale Italiano e Comparato e studio autonomo di eventuali libri di riferimento in preparazione dell'esame finale o della tesi. Non devono intendersi come materiale ufficiale dell'università Parma - Unipr o del prof Scaffardi Lucia.
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