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Emergenza HIV - Corte Sud Africana 02/08

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... Vedi di più

Esame di Diritto Costituzionale Italiano e Comparato docente Prof. L. Scaffardi





The applicants


[44] 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.

[45] 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

[46] 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

Anegative Ahealth

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.

[47] 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

[48] 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.@

[49] 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.

[50] 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.

[51] In substance four reasons were advanced in the affidavits for confining the administration


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.

[52] 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.

[53] 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

[54] 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.

[55] 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.

[56] We deal with each of these issues in turn.


[57] 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


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


[58] 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.


[59] 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.



[60] 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.

[61] 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.

[62] 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


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.

[63] 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.@

[64] 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


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.


[65] 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.

[66] 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

[67] 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


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


[68] 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.@

[69] 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

[70] 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.

[71] 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

additional costs.

[72] 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

[73] 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


[74] 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[e]very B

(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.

[75] 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



where that is lacking.@

[76] 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.

[77] 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

A[t]his 36

are being cared for by their parents or families.@

[78] 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

[79] 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

[80] 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.

[81] 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?

[82] 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.

[83] 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.

[84] It is therefore important to know what facilities exist outside the research and training


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

Africa 2000


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.

[85] 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.

[86] 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


sexual practices and future fertility.

[87] 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


[88] 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.

[89] 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


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

[90] 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.


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.


[91] 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)


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

[92] 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.

s programme

Findings concerning government =

[93] 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

2005 states:

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.@

[94] 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.


[95] 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

[96] 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.

[97] 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


make orders that have the effect of requiring the executive to pursue a particular policy.

[98] 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

[99] 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).


[100] 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


State=s obligations.@

46 Above n 6 para 42. 59 THE COURT

[101] 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

[102] 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


[103] 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


constitutional rights.@

[104] 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.


[105] 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.


[106] 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

[107] 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

58 where

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.


[108] 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

structural injunctions.

[109] 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 [1996] 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.

[110] 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

Asome Athere

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.

[111] 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. [1994] 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 [1984] 1 QB 778 at 795.





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+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.

Corso di laurea: Corso di laurea magistrale in giurisprudenza (a ciclo unico)
Università: Parma - Unipr
A.A.: 2008-2009

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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