ConCourt reserves judgment
2002-05-06 18:40
Special Report
The South African government has announced a joint venture to reduce the cost of anti-retroviral drugs with a Swiss company.
Johannesburg - The Constitutional Court has reserved judgment in the State's appeal against a Pretoria High Court order that it roll out its antiretroviral programmes.
Those opposed to the government's view that the
antiretroviral
drug nevirapine, which was registered in April 2001, should be used
to prevent mother-to-child transmission of the HI virus told the
court the government was not taking South Africa's Aids epidemic
seriously enough or acting with enough urgency.
The State has argued that it is serious about combating Aids,
but that the long term effects of the antiretroviral drug
nevirapine were not known and that its safety and efficacy had to
be tested via pilot sites.
Pro nevirapine
It has met with a barrage of dissent from the Treatment Action
Campaign (TAC), which initially took the government to court on
this issue in August, and three "friends of the court" - the
University of the Western Cape's Community Law Centre, the
Institute for Democracy in SA (Idasa) and Cotlands Baby Sanctury.
"Death is different," the TAC's senior counsel Gilbert Marcus
said, arguing on Friday.
"This is a case in which thousands of babies who are born, die
in misery. A single dose (of nevirapine) can ensure them a life of
health and well-being," said Wim Trengove, senior counsel for the
Community Law Centre and Idasa.
"The sheer weight of the gravity of harm (for the child born
HIV-positive) renders unknown and unspecified long-term risks
negligible," counsel for Cotlands Baby Sanctuary, Susie Cowen,
argued on Monday.
Cowen argued that children born with HIV risked losing their
parents, or a parent, to the virus, through ill health or death and
also risked "abandonment" if they were put up for adoption. This
was because prospective adoptive parents were less likely to apply
to adopt sickly babies which were likely to die at an early age.
There was also general discrimination against HIV-positive people.
Cowen argued that the State had a duty to, at least, take
measures to ensure all citizens had access to basic health care and
that this included the provision of an anti-mother-to-child
transmission programme.
Government
On Thursday, senior counsel for the government Marumo Moerane
said the government was not prepared to provide nevirapine in the
public sector unless it could provide a "full package" of services,
including testing, counselling, monitoring and breast milk formula.
The formula is necessary because breast feeding can cause the
transmission of the HI virus. The State was not able to extend its
perinatal anti-HIV programme to provide antiretrovirals because it
could not yet provide this full package, he argued.
Trengove
Arguing on Friday, Trengove said this approach was flawed
because testing, monitoring, counselling and breast milk formula
should already be in place.
"They are the A B C of any (anti-)mother to child transmission
programme... These should have been in place long before nevirapine
appeared on the horizon," he said.
Trengove argued that the fact that "the package" referred to by
Moerane was not in place when nevirapine was registered in April
2001 constituted a pre-existing flaw in the government's programme.
He said the State had a constitutional duty to ensure that
everyone had physical and economic access to basic health care.
Probed about the practicalities of this suggestion, he answered
that there were obvious cost constraints, but that the government
had to work towards a situation where this was true for all South
Africans.
"Not providing (antiretroviral treatment) is a violation of the
right to dignity. It says that the mother and baby are not worthy
citizens," Trengove said.
Moerane
Moerane on Monday countered that the State "obviously" aspired
to meeting all citizens' constitutional rights in full, but that
money was a problem.
"All (constitutional obligations) are tied to the availability
of resources," Moerane said.
Chief Justice Arthur Chaskalson interrupted: "But as I
understand it, the provision of nevirapine... does not present a
financial problem... (it) can only be the collateral resources of
counselling and testing. ...Isn't counselling and testing standard
treatment?" asked Chaskalson.
Moerane said yes.
Chaskalson then went on to ask: "Considering the government
first established an anti mother-to-child HIV transmission policy
which included counselling and testing in May 2000, what additional
spending is necessary to include nevirapine?"
Moerane repeated the government stance on a "package of care."
Judge Ben du Plessis interjected: "But the package is already
there."
Moerane admitted this but said it took time to implement
government policy, and additional training was needed to introduce
nevirapine.
The court also heard argument from David Unterhalter, senior
counsel for KwaZulu-Natal premier Lionel Mtshali, on the State's
separate application for leave to appeal against a decision by the
Pretoria High Court to remove KwaZulu-Natal health MEC Zweli Mkhize
as a respondent in the first application.
Mtshali, when the matter was being heard in the High Court, took
over the litigation because he contended that Mkhize had not
properly represented the province's stance on the matter. The High
Court replaced Mkhize with Mtshali as a respondent.
- SAPA