IN THE HIGH COURT OF SOUTH AFRICA TRANSVAAL PROVINCIAL DIVISION CASE NO: 21182/2001 In the matter between: TREATMENT ACTION CAMPAIGN FIRST APPLICANT DR HAROON SALOOJEE SECOND APPLICANT CHILDREN'S RIGHTS CENTRE THIRD APPLICANT and MINISTER OF HEALTH FIRST RESPONDENT MEC FOR HEALTH, EASTERN CAPE SECOND RESPONDENT MEC FOR HEALTH, FREE STATE THIRD RESPONDENT MEC FOR HEALTH, GAUTENG FOURTH RESPONDENT MEC FOR HEALTH, KWA-ZULU NATAL FIFTH RESPONDENT MEC FOR HEALTH, MPUMALANGA SIXTH RESPONDENT MEC FOR HEALTH, NORTHERN CAPE SEVENTH RESPONDENT MEC FOR HEALTH, NORTHERN PROVINCE EIGHTH RESPONDENT MEC FOR HEALTH, NORTH-WEST NINTH RESPONDENT MEC FOR HEALTH, WESTERN CAPE TENTH RESPONDENT FOUNDING AFFIDAVIT IN APPLICATION FOR LEAVE TO EXECUTE I, the undersigned, SIPHOKAZI MTHATHI hereby say: 1. I am an adult woman of full legal capacity residing at 7 Rorita Court, Strubens Road, Mowbray, in the Western Cape Province. 2. I am the Deputy Chairperson of the Treatment Action Campaign, which is the First Applicant in this matter. I am duly authorized by the Applicants to make this application and this affidavit on their behalf. 3. Except where the context indicates otherwise, the facts stated in this affidavit are within my personal knowledge. To the best of my knowledge and belief the contents of this affidavit are true and correct. 4. Save in respect of matters referred to in this affidavit, the record in the main application forms the factual foundation for the present application, and will be referred to when this application is argued. 5. On 14 December 2001, this Honourable Court granted the application of applicants and made inter alia the following orders: 5.1 "It is declared that the first to ninth respondents are obliged to make Nevirapine available to pregnant women with HIV who give birth in the public health sector, and to their babies, in public health facilities to which the respondents' present programme for the prevention of mother-to-child transmission of HIV has not yet been extended, where in the judgment of the attending medical officer, acting in consultation with the medical superintendent of the facility concerned, this is medically indicated, which shall at least include that the woman concerned has been appropriately tested and counseled. 5.2 "The first to ninth respondents are ordered to make Nevirapine available to pregnant women with HIV who give birth in the public sector, and to their babies, in public health facilities to which the respondents' present programme for the prevention of mother-to-child transmission of HIV has not yet been extended, where in the opinion of the attending medical practitioner, acting in consultation with the medical superintendent of the facility concerned, this is medically indicated, which shall at least include that the woman concerned has been appropriately tested and counseled." 6. On 4 January 2002 the first to ninth respondents delivered a notice of application for leave to appeal against the whole of the judgment of his lordship Mr Justice Botha handed down on 14 December 2001. I have been advised that the delivery of this notice has the effect of suspending the execution of the orders. I have been further advised that if leave to appeal is granted, that will mean that the orders will remain suspended until the appeal has been heard and decided. 7. The Applicants submit that, for the reasons set out in their response to the application for leave to appeal, there is no reasonable prospect of success on appeal. 8. The delay in the execution of the order of the above Honourable Court will cause irreparable harm and prejudice to the Applicants and to the people and interests which they represent. 9. The scourge of HIV and AIDS has reached epidemic proportions in South Africa, and is bound to have catastrophic results for the nation unless something is done urgently to arrest its spread and growth. At page 2 of his judgment, his lordship Mr Justice Botha concluded that "The background to the application is the grim reality that 24% of pregnant women in South Africa are HIV positive and that 70,000 children are infected each year through MTCT of HIV." 10. It is common cause that without effective treatment, the majority of people with HIV/AIDS (which includes these 70 000 children who are infected each year) die prematurely of illnesses that further destroy their immune systems, quality of life and dignity. 11. It is also common cause that the administration of Nevirapine is effective in reducing mother-to-child transmission of HIV. According to the Respondents' own experts, Nevirapine reduces transmission by between one third and one half. 12. I submit that it is clear on the papers, that testing and counseling are already available at many facilities outside the pilot sites, and that many medical practitioners in the public health sector would prescribe Nevirapine if they were able to do so. 13. Nevirapine is already prescribed in the pilot sites. If it was prescribed in only another 15% of the cases in which the mother is HIV positive, this would mean that it was administered to an additional 10 500 of the 70 000 cases per year in which the babies would otherwise be infected. 14. If this prevented mother-to-child transmission in only one third of those cases, that would mean that some 3 500 children - or almost 10 children every day - would be prevented from becoming HIV positive, and from a virtually certain death. 15. I respectfully submit that what this shows is that even on the most conservative estimates, based on the figures used by the Respondents' own experts, every day in which the implementation of paragraphs 1 and 2 of the order is delayed, results in the unnecessary infection and death of 10 children. 16. I have been advised that if leave to appeal is granted, and if the Constitutional Court agrees to hear the appeal, it will (at best) be months before a final decision is given on appeal. The result is that the suspension of the orders as a result of the noting and prosecution of the appeal will lead to the unnecessary infection and deaths of a large number of children, quite possibly running into thousands. These children will contract HIV from their mothers, where this could have been avoided by the administration of Nevirapine. 17. If the execution of paragraphs 1 and 2 of the order of this Honourable Court is delayed, these babies and their mothers will obviously suffer irreparable and devastating prejudice. 18. If however leave is given to execute paragraphs 1 and 2 of the order, the respondents will not sustain any irreparable harm or prejudice. I say this for the reasons set out below. 19. Paragraphs 1 and 2 of the order require the Respondents only to administer Nevirapine where they are already in a position to do so. 20. Nevirapine is available to the Respondents either for free, or (at worst) at the nominal cost of R10 per treatment. At worst, therefore, on the calculations which I have set out above, the medication would cost R105 000 if it took a full year for a decision to be made on appeal. 21. I submit that the expert evidence submitted by the Applicants demonstrates that the Respondents would in any event actually save money by making Nevirapine available where medically indicated. 22. I submit that the record also demonstrates that the Respondents already have effective mechanisms in place for procuring medicines and distributing them to their medical facilities. 23. It would involve very little extra administration for an additional medicine to be added to the lengthy list of medicines already procured and distributed through this system. As I will set out below, the Fifth Respondent has said that Nevirapine could be supplied to every hospital in KwaZulu-Natal within 72 hours. 24. The respondents' notice of application for leave to appeal implies that it is the contention of the Second to Ninth Respondents that they do indeed have a plan for the eventual provision of Nevirapine at all public health facilities in the country. 25. If this is so, then the execution of paragraphs 1 and 2 of the order will not cause the respondents any irreparable harm or prejudice, but will merely require them to start earlier than they planned to start, in places where this can be done. 26. If the respondents should succeed on appeal, they will have sustained no irreparable harm through execution of paragraphs 1 and 2 of the order. They will have suffered a notional administrative inconvenience through having to distribute one additional medicine to their facilities. The only 'harm', if one can call it such, is that they will have provided a potentially life-saving medicine to their patients in a situation in which they were not legally obliged to do so. 27. In so doing, the respondents will have done no more than to afford some patients at non-designated sites the same treatment as those fortunate enough to live in the vicinity of the pilot sites. 28. I submit that to the extent that the respondents would sustain irreparable harm if leave to execute were to be granted, any such harm is truly trivial when compared with the harm which will be suffered if leave to execute is not given, namely daily human illness, suffering, and loss of life. 29. I submit that under the circumstances, the balance of hardship (or convenience) overwhelmingly favours the execution of paragraphs 1 and 2 of the order pending the outcome of the appeal proceedings, and that it is plainly just and equitable that leave be granted to execute on those paragraphs. 30. Because the Applicants take this view, on 11 January 2002 our attorney wrote to the State Attorney in this regard. In this letter (annexure A), our attorney stated as follows: "The case literally involves matters of life and death. It appears to us that any administrative inconvenience which may be caused to your clients through implementing the order, which need only be implemented where they are already able to carry out testing and counseling, is far outweighed by the fact that the provision of Nevirapine will literally save the lives of some babies whose mothers are HIV positive. "If you agree with this, naturally without conceding the merits of the main application, this question can be dealt with at the hearing of the application for leave to appeal. If you do not agree with this, we shall bring a substantive application that orders 1 and 2 be executed pending the outcome of the application for leave to appeal, and if leave is granted, the appeal itself. "We shall be grateful for your urgent response in this regard." 31. The State Attorney did not respond to this letter, or to a follow-up letter which was sent to her on 18 January 2002 asking for an urgent response. 32. When our attorney did not receive a response to this letter either, on 22 January 2002 he again wrote to the State Attorney, stating that unless an adequate response was received by close of business on Friday 25 January 2002, an application would be made to the High Court for leave to execute. I attach marked "B" a copy of that letter. 33. Later that day, our attorney received a letter dated 21 January 2002 from the State Attorney ("C"), in which Ms Behardien stated that she had been on leave, and that she would revert to our attorney shortly. 34. On Friday 25 January 2002 the State Attorney replied by letter ("D") stating that the respondents do not agree that paragraphs 1 and 2 of the order should be executed. 35. However, in the meantime, the Premier of KwaZulu-Natal made a public statement ("E") in which he announced that he had taken "a principled decision that the government of this province is under obligation to supply anti retroviral drugs to pregnant mothers who are HIV positive. We commend the courageous decision of the doctors who have committed themselves to supply the anti retroviral drugs to pregnant mother at Empangeni, Bethesda and other hospitals in those parts of KwaZulu-Natal which are ravaged by the scourge of HIV/AIDS. It is encouraging that the said doctors have followed the requirements of the Hippocratic Oath as well as Section 11 of Chapter 2 of the Bill of Rights of the South African Constitution... While it is accepted that the drug Nevirapine does cause complications, it is the pregnant woman's prerogative to save her child from contracting the AIDS virus. A mother who is already inflicted by an incurable disease should not have to contend with a hopeless situation of having her unborn child facing the same affliction if it can be prevented." 36. This statement received very wide publicity in the press. 37. I submit that the attitude shown by the Premier's statement is wholly inconsistent with any suggestion that where a medical practitioner forms the professional judgment that it is in the interests of his or her patient to prescribe and administer Nevirapine, it is inappropriate or irresponsible for him or her to do so. 38. On the contrary, the Premier states that doctors who do this are acting courageously, in accordance with their ethical duties under the Hippocratic Oath, and in accordance with the requirements of the Constitution. 39. This application for leave to execute asks for no more than that medical practitioners be enabled to act in this manner. 40. The Premier also gave an interview on the SABC of the morning of 22 January 2002, in which he stated that it was necessary for the province to go beyond the 'test sites'. I attach marked "F" a transcript of that interview. 41. On 23 January 2002 the Fifth Respondent issued a statement that the province of KwaZulu-Natal is not yet ready to roll out the provision of Nevirapine on a comprehensive basis, although it does intend to do so in due course. He said that Nevirapine is cheap, and that the province has secured free Nevirapine for a period of five years. He said further than distribution is not a problem, because the provincial government can distribute it to all hospitals in the province within 72 hours. 42. This statement, too, received wide publicity in the media. I attach ("G") a copy of the transcript of the report which was broadcast by the SABC in this regard. 43. The Fifth Respondent did not contradict the Premier's statement that doctors who have prescribed Nevirapine for their patients, such as those at Empangeni and Bethesda (which can only be a reference to the deponent Dr Grant and his colleagues), have acted correctly in doing so. 44. This application seeks to enable all doctors to act in this manner, pending the outcome of the appeal proceedings, if in their professional opinion this is medically indicated. 45. I submit that given the attitude of the Premier of KwaZulu-Natal, the Fifth Respondent can not have any valid objection to execution of paragraphs 1 and 2 of the order. 46. For the sake of completeness, I attach (H") a subsequent statement which the Premier of KwaZulu-Natal issued, in which he reiterated his position on this matter. 47. When the respondents announced their decision to apply for leave to appeal, they issued a media release ("I") in that regard. 48. The media release deals with the reasons why the respondents have decided on this course of action. It states that an appeal is "unavoidable" because the judgment "could have far-reaching implications in defining our constitutional democracy and in shaping the State's responsibility for the delivery of social services". None of the reasons which it advance in justification of the decision to seek to appeal against the judgment, provides any reason for not executing paragraphs 1 and 2 of the order pending the outcome of the appeal proceedings. 49. The decision of the respondents to apply for leave to appeal led to a great deal of public controversy. 50. In response to that controversy, the First Respondent wrote an article in the Sunday Times in which she defended that decision. I attach ("J") a copy of that article. 51. I respectfully submit that it is striking that again, none of the reasons which she advances in justification of the decision to seek to appeal against the judgment, provides any reason for not executing paragraphs 1 and 2 of the order pending the outcome of the appeal proceedings. 52. I respectfully submit that it is plainly just and equitable that paragraphs 1 and 2 of the order be executed pending the outcome of the appeal proceedings. 53. If it is held that this would cause any significant prejudice to the respondents, which would outweigh the prejudice to the pregnant women and their babies, then I submit that an order should be made as prayed in the alternative. 54. The record in this case demonstrates that there are already doctors outside the pilot sites who are providing Nevirapine to their patients where this is medically indicated, through their own efforts - by obtaining donations, by paying for the medicine themselves, or through other means. 55. It is doctors such as these whom the Premier of KwaZulu-Natal has described as "courageous". 56. The respondents took up the attitude, in the affidavits filed on their behalf, that such conduct is "irresponsible". Public sector doctors who take this step in the interests of their patients, and in carrying out what they properly conceive to be their ethical duties, therefore do this at risk of being subjected to disciplinary proceedings, or prejudiced in some other way in their professional careers, because they are regarded as irresponsible. 57. In the alternative to an order that orders 1 and 2 be executed, the Applicants seek an order that public sector doctors are and shall be permitted to provide Nevirapine to their patients, acting in consultation with the medical superintendent, where in their professional judgment this is medically indicated. 58. For the reasons I have set out above, this would cause no prejudice or harm, or no appreciable prejudice or harm, to the respondents. It would however prevent enormous prejudice and irreparable harm to the people who were so treated. 59. This application is inherently urgent, involving as it does matters of life and death. Literally every day that passes without execution of the order, leads to the loss of lives. The respondents have now known for two weeks that the applicants seek to have paragraphs 1 and 2 of the order executed. Save for the recent pronouncements of the respondents and the Premier of KwaZulu-Natal, all of the evidence on which this application is based is already on the record. In truth, the application revolves around a question of law. I submit that under the circumstances, the time period stipulated for the respondents to file their answering affidavits, if any, is reasonable. 60. I therefore ask that this Honourable Court grant an order as prayed in the Notice of Application. __________________________ DEPONENT Signed and affirmed to before me in the prescribed manner at CAPE TOWN on this day of JANUARY 2002, the Deponent having stated that she has conscientious objections to taking the oath, that she has no objection to affirming this statement, and that she regards the affirmation as binding on her conscience. __________________________ COMMISSIONER OF OATHS C:\My Documents\GB\TAC\Pleadings\Affidavit.24-01-02.doc 2