IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

In the matter between:

TREATMENT ACTION CAMPAIGN	Applicant

and

MEC FOR HEALTH, MPUMALANGA	First Respondent

MINISTER OF HEALTH	Second Respondent

FOUNDING AFFIDAVIT

I, the undersigned,

SIPHOKAZI MTHATHI

hereby affirm and say:

1	I am an adult woman of full legal capacity residing at 7 Rorita Court, Strubens Road, Mowbray, Cape.

2	I am the Deputy Chairperson of the Treatment Action Campaign, which is the applicant in this matter. I am duly authorized by the Executive Committee of the Treatment Action Campaign to bring this application and to make this affidavit on its 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.

THE PARTIES

4	The Applicant is the Treatment Action Campaign (TAC), a voluntary association with legal personality and the capacity to sue and be sued, located at Town One Property, Sulani Drive, Site B, Khayelitsha, Cape Town.

5	I attach marked 'A' a copy of the Constitution of the TAC.

6	A number of organizations and individuals are associated with the TAC. They include the AIDS Law Project, the AIDS Consortium, the Congress of South African Trade Unions, the New Women's Movement, the South African Catholic Bishops' Conference, and a range of individuals with HIV/AIDS and organizations of people with HIV/AIDS.

7	The principal objectives of the TAC are set out in paragraph 4 of Annexure 'A'. They include the following:

7.1	to campaign for affordable treatment for all people with HIV/AIDS; and

7.2	to campaign for the prevention and elimination of all new HIV infections.

8	The First Respondent is the MEC for Health in the Province of Mpumalanga. She is the member of the Provincial Executive who is responsible for implementing national and provincial legislation, and developing and implementing provincial policy, with regard to health services. She is cited in her official capacity and as a representative of the Provincial Government, c/o The State Attorney, 4th Floor South Tower, Fedsure Forum Building, 268 Van Der Walt Street, Pretoria.

9	The Second Respondent is the Minister of Health in the Government of the Republic of South Africa. She is the member of the National Executive who is responsible for developing and implementing national policy with regard to health services. She is cited in her official capacity and as a representative of the Government of the Republic of South Africa, c/o The State Attorney, 4th Floor, South Tower, Fedsure Forum Building, 268 Van Der Walt Street, Pretoria.

THE ISSUE

10	The HIV/AIDS epidemic is a major public health problem in South Africa, and has reached catastrophic proportions.

11	In the case of Treatment Action Campaign and others / Minister of Health and others (TPD case no 21181/2001), to which I will refer in due course, it was common cause that HIV profoundly depletes the immune system. It leads to the inability of the body to fight opportunistic infections such as tuberculosis, pneumonia and meningitis. Without effective treatment, the majority of people with HIV/AIDS die prematurely of illnesses that further destroy their immune systems, quality of life and dignity.

12	One of the most common methods of transmission of HIV is from mother to child at and around birth. Government estimates are that since 1998, 70 000 children are infected in this way every year.

13	Nevirapine is a medicine which has been registered by the Medicines Control Council. It substantially reduces the risk of transmission of HIV from mother to child at and around birth. Its use can save the lives of many thousands of children every year.

14	Nevirapine is administered through providing one tablet to the mother, and one dose of syrup to the infant, at or around the time of birth. It is simple to administer: any qualified doctor or nurse can do this. It is desirable that before a decision is taken by the mother whether she wishes to receive Nevirapine, she should undergo voluntary counselling and testing.

15	The constitutional validity of the policies and programmes of the government with regard to the provision of Nevirapine in the public health sector was challenged in Treatment Action Campaign and others / Minister of Health and others (TPD case no 21181/2001). I refer to that case as the original application.

16	The purpose of this application is to compel the Respondents to comply with their duties in terms of the Constitution with regard to the provision of Nevirapine and related issues, as declared and ordered by the Constitutional Court in the original application.

BACKGROUND

17	In the original application, on 14 December 2001 this Honourable Court made various orders requiring the Respondents (who included the two Respondents in this case) to take various steps to make Nevirapine available to pregnant women with HIV who give birth in the public health sector, and their babies. Paragraph 2 of that order read as follows:

'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 counselled.'

18	The Respondents (and certain other Respondents in that application) applied for leave to appeal against the order of this Honourable Court.

19	The Applicants then applied for an order that pending the final determination of the appeal, the provisions of paragraph 2 of the order (which I have quoted above) be implemented.

20	On 11 March 2002, this Honourable Court ordered accordingly (the execution order).

21	The present Respondents and other Respondents then applied for leave to appeal against the execution order. That led to further applications, the details of which are not relevant here.

22	On 4 April 2002 the Constitutional Court dismissed the application for leave to appeal against the execution order. The consequence was that the execution order remained in force.

23	Meanwhile, the appeal in the main application proceeded. On 5 July 2002, the Constitutional Court delivered a unanimous judgment in this regard. The Constitutional Court set aside the orders made by this Honourable Court and substituted the following orders:

1.	The orders made by the High Court are set aside and the following orders are substituted.

2.	It is declared that:

a)	Sections 27(1) and (2) of the Constitution require the government to devise and implement within its available resources a comprehensive and co-ordinated programme to realise progressively the rights of pregnant women and their newborn children to have access to health services to combat mother-to-child transmission of HIV.

b)	The programme to be realised progressively within available resources must include reasonable measures for counselling and testing pregnant women for HIV, counselling HIV- positive pregnant women on the options open to them to reduce the risk of mother-to-child transmission of HIV, and making appropriate treatment available to them for such purposes.

c)	The policy for reducing the risk of mother-to-child transmission of HIV as formulated and implemented by government fell short of compliance with the requirements in subparagraphs (a) and (b) in that:

i)	Doctors at public hospitals and clinics other than the research and training sites were not enabled to prescribe nevirapine to reduce the risk of mother-to- child transmission of HIV even where it was medically indicated and adequate facilities existed for the testing and counselling of the pregnant women concerned.

ii)	The policy failed to make provision for counsellors at hospitals and clinics other than at research and training sites to be trained in counselling for the use of nevirapine as a means of reducing the risk of mother- to-child transmission of HIV.

3.	Government is ordered without delay to:

a)	Remove the restrictions that prevent nevirapine from being made available for the purpose of reducing the risk of mother- to-child transmission of HIV at public hospitals and clinics that are not research and training sites.

b)	Permit and facilitate the use of nevirapine for the purpose of reducing the risk of mother-to-child transmission of HIV and to make it available for this purpose at hospitals and clinics when in the judgment of the attending medical practitioner acting in consultation with the medical superintendent of the facility concerned this is medically indicated, which shall if necessary include that the mother concerned has been appropriately tested and counselled.

c)	Make provision if necessary for counsellors based at public hospitals and clinics other than the research and training sites to be trained for the counselling necessary for the use of nevirapine to reduce the risk of mother-to-child transmission of HIV.

d)	Take reasonable measures to extend the testing and counselling facilities at hospitals and clinics throughout the public health sector to facilitate and expedite the use of nevirapine for the purpose of reducing the risk of mother-to- child transmission of HIV.

4.	The orders made in paragraph 3 do not preclude government from adapting its policy in a manner consistent with the Constitution if equally appropriate or better methods become available to it for the prevention of mother-to-child transmission of HIV.

5.	The government must pay the applicants' costs, including the costs of two counsel.

6.	The application by government to adduce further evidence is refused.

24	The Constitutional Court held that the original Applicants had been substantially successful in relation to the issues raised in these proceedings.

25	The Constitutional Court held that the programme instituted by the Government had to be made known effectively to all concerned, and that for a public programme such as this to meet the constitutional requirement of reasonableness, its contents must be made known appropriately. The Court held that it was necessary that the programme, as supplemented to comply with the requirements of the judgment of the Constitutional Court, be communicated to health care givers in all public facilities and to the beneficiaries of the programme.

26	Since that judgment was given, the Applicant has been attempting to obtain information from the various Respondents in the original application as to what they have done, and what they will do, in order to comply with the order.

27	As is set out more fully below, the First Respondent:

27.1	has failed to make full information available as to her programme, despite repeated requests

27.2	to the extent that she has provided information, has provided information which is contradictory of the other information which she has provided;

27.3	has provided information which is false;

27.4	has demonstrated that she is prima facie in breach of the order of this Court as substituted by the order of the Constitutional Court.

28	The purpose of this application is to:

28.1	compel the First Respondent to provide full and accurate information, under oath, as to what she has done and what she will do in order to comply with the Court order;

28.2	have the First Respondent held in contempt for her failure to comply with the Court order; and

28.3	compel the Second Respondent to carry out her constitutional duty to ensure that the state meets its constutitonal obligations in respect of the right of access to health care services, as set out in sec 27(1) and (2) of the Constitution.

29	The Second Respondent has responsibility for ensuring that laws, policies, programmes and strategies are adequate to meet the obligations of the state in terms of section 27 of the Constitution. It bears the overall responsibility for ensuring that the state complies with the obligations imposed upon it by section 27.

30	The Second Respondent has failed to carry out these responsibilities, in that the state has not met its obligations in terms of section 27 as explained and ordered by the Constitutional Court.

31	The Applicant therefore seeks an order compelling the Second Respondent to carry out these responsibilities.

THE FIRST RESPONDENT'S ACCOUNT OF WHAT SHE HAS DONE SINCE THE CONSTITUTIONAL COURT MADE ITS ORDER

32	The Constitutional Court gave judgment in the original application on 5 July 2002.

33	On 9 July 2002 the Applicant's attorney Mr Budlender wrote to the First Respondent, drawing her attention to the order of the Constitutional Court. He offered to make a copy of the order available to her, if she had not received a copy. The letter (SM1) then proceeded as follows:

In paragraph 3 of the order, you are ordered 'without delay' to:

(a)	Remove the restrictions that prevent nevirapine from being made available for the purpose of reducing the risk of mother- to-child transmission of HIV at public hospitals and clinics that are not research and training sites.

(b)	Permit and facilitate the use of nevirapine for the purpose of reducing the risk of mother-to-child transmission of HIV and to make it available for this purpose at hospitals and clinics when in the judgment of the attending medical practitioner acting in consultation with the Medical Superintendent of the facility concerned this is medically indicated, which shall if necessary include that the mother concerned has been appropriately tested and counseled.

(c)	Make provision if necessary for counsellors based at public hospitals and clinics other than the research and training sites to be trained for the counselling necessary for the use of nevirapine to reduce the risk of mother-to-child transmission of HIV.

(d)	Take reasonable measures to extend the testing and counselling facilities at hospitals and clinics throughout the public health sector to facilitate and expedite the use of nevirapine for the purpose of reducing the risk of mother-to- child transmission of HIV.

The Constitutional Court also found (at paragraph 123 of its judgment) that in order for the programme to be implemented optimally, it must be made known effectively to all concerned, down to the district nurse and patients: 'Indeed, for a public programme such as this to meet the constitutional requirement of reasonableness, its contents must be made known appropriately.'

As you are aware, and as the Constitutional Court has found, this is a matter of great urgency, involving as it does questions of life and death.

We shall be obliged if you would therefore kindly advise us of the following:

1.	What steps have you taken to:

1.1	remove the restrictions that prevent nevirapine from being made available as public hospitals and clinics that are not research and training sites?

1.2	permit and facilitate the use of nevirapine for the purpose of reducing the risk of mother-to-child transmission of HIV and to make it available for this purpose at hospitals and clinics?

1.3	make provision for counsellors based at public hospitals and clinics other than the research and training sites to be trained for the counselling necessary for the use of nevirapine to reduce the risk of mother-to-child transmission of HIV?

1.4	extend the testing and counselling facilities at hospitals and clinics throughout the public sector to facilitate and expedite the use of nevirapine for this purpose?

2.	What steps will you take in future in respect of each of these matters?

3.	When will you take each of the steps referred to in paragraph 2 above?

I should add that our clients are willing and anxious to assist in any manner which is possible. They would welcome an indication from you of how they could be helpful in this process.

We look forward to your urgent response.

34	The First Respondent did not respond to this letter.

35	On 23 July 2002, Mr Budlender wrote again to the First Respondent (SM2). He pointed out that it was three weeks since the Constitutional Court had ordered her to carry out her constitutional obligations 'without delay'. He stated that he was sure that the First Respondent would appreciate that the matter was inherently urgent for two reasons: it literally involved questions of live and death; and it involved compliance with an order of the Constitutional Court. He asked for an answer within fourteen days to the questions in the letter of 9 July 2002.

36	The First Respondent did not respond to this letter either.

37	On 9 July 2002 Mr Budlender had also written in similar terms to the Second Respondent, the Minister of Health, about implementation of the order of the Constitutional Court. I attach (SM3) a copy of that letter.

38	A correspondence followed between the Director-General of the National Department of Health (Dr Ntsaluba) and Mr Budlender, culminating in a meeting between representatives of the Applicant and Dr Ntsaluba on 21 August 2001.

39	The outcome of that meeting is reflected in a letter dated 21 August 2002 which Mr Budlender sent to Dr Ntsaluba (Annexure SM4). As appears from that letter, at the meeting Dr Ntsaluba undertook inter alia to do the following:

39.1	He would identify and advise Mr Budlender of a contact person in each of the provinces with whom the Applicant could raise problems which they identified.

39.2	He would obtain from the provinces and make available to the Applicant a report on what they had already done to comply with the orders of the Constitutional Court, what they still intended doing, and when they would take those steps.

40	By 13 September 2002 that information had not been received.. Mr Budlender then wrote again to Dr Ntsaluba (SM5). He pointed out that it was ten weeks since the Constitutional Court had ordered the National and Provincial Government to take specific steps 'without delay'. During those ten weeks he had made repeated attempts to find out from the National and Provincial Government what they had done to comply with the order, what they would do in future to comply with it, and when they would do it. He stated that the information available to his clients indicated that while there had been some compliance with the order in some places, there had been a large scale failure to comply with the order:

'The only way to determine whether this is so, is for the National and Provincial Governments to disclose (as they are constitutionally obliged to do) what they have done, what they are going to do, and when they are going to do it. For two months we have tried without success to obtain this information.'

41	The letter stated further that unless the National and Provincial Governments provided the information by the close of business on Friday 20 September 2002, an urgent application would be made to the High Court for appropriate relief.

42	Dr Ntsaluba replied in a letter dated 17 September 2002 (Annexure SM6). Mr Budlender responded in a letter dated 18 September 2002 (Annexure SM7). On 23 September 2002 he wrote again to Dr Ntsaluba stating that he had been instructed to bring proceedings in the High Court unless within fourteen days the National and each of the Provincial Governments provided him with information setting out in respect of each of the orders 3(a), 3(b), 3(c) and 3(d) of the Constitutional Court:

42.1	what they had done to comply with the order;

42.2	what steps they would take in future to comply with the order; and

42.3	when they would take those steps.

43	On 4 October 2002, the Respondents in the original application finally made available some information as to what they had done and would do to comply with the court order. This information is contained in a letter of that date from Dr Ntsaluba to Mr Budlender (SM8).

44	An annexure to SM8 set out in tabular form the information provided by each of the Provincial Governments following requests by the National Department to them to respond to the various elements of paragraph 3 of the Constitutional Court order. The information provided by Mpumalanga was very scanty. It was the following:

Communication efforts to the general public:

No information was provided.

Communication of court order and the availability of Nevirapine to hospitals and doctors:

No information was provided.

Nevirapine availability / uptake:

'40 facilities have Nevirapine available including Evander Hospital, Shongwe Hospital, Philadelphia Hospital.'

Counseling facilities / effort to train counselors around Nevirapine:

No information was provided.

Other efforts:

No information was provided.

45	On 11 October 2002, Mr Budlender wrote to Ms R Charles, the Head of the Department of Health in Mpumalanga, who was identified by Dr Ntsaluba as the person with whom the Applicant should communicate on behalf of the Mpumalanga provincial government. In that letter (SM9) Mr Budlender drew attention to the very limited information which had been provided in respect of Mpumalanga. He pointed out that Mpumalanga had not provided all of the information which had been requested. The letter proceeded as follows:

"We wish to draw your attention to the fact that the Constitutional Court found that in order for the programme to meet the constitutional requirement of reasonableness, its contents must be known appropriately. The court also found that in order for the programme to be implemented optimally, it must be made effectively to all concerned down to the district nurse and patients.

We now request that you provide us with the following information:

1.	Precisely which hospitals and clinics in Mpumalanga have Nevirapine available?

2.	Which of those hospitals and clinics fall outside the areas of the designated "pilot" or "research and training" sites?

3.	In which other hospitals and clinics will Nevirapine be made available, and when will this be done?

4.	How many counselors have been trained in the use of Nevirapine at each of the facilities referred to in question 1 (we request that you provide this information in respect of each facility)?

5.	What additional training will be provided, to how many counselors, and at what facilities and when will this be done in respect of each facility?

6.	To what hospitals and clinics have the testing and counseling facilities been extended?

7.	To what further hospitals and clinics will the testing and counseling be extended, and when will this be done in respect of each facility?

8.	What steps have the province taken to make this programme know to actually or potential patients?

9.	What budgetary province has been made in respect of the matters referred to above?

46	The letter requested that this information be provided as a matter of urgency, and in any event not later than two weeks of the date of this letter. It stated that if a comprehensive answer was not received, or if the answer indicated that there had not been full compliance with the order of the Constitutional Court, an urgent application would be made to court for appropriate relief. He sent Dr Ntsaluba a copy of that letter.

47	The First Respondent did not respond to the letter of 11 October 2002.

48	On 4 November 2002, Mr Budlender wrote again to Ms Charles (SM10), noting that there had been no response whatsoever to his letter. He advised that unless within ten days he received a satisfactory reply, application would be made to the High Court without further notice. He stated that in that application the MEC for Health (Mpumalanga) would be cited as the First Respondent, and the National Minister of Health would joined as a party. He sent a copy of that letter to the First Respondent herself, and to Dr Ntsaluba.

49	In a letter dated 4 November 2002 but transmitted on 6 November 2002 (SM11), Ms Charles replied on behalf of the First Respondent to the letter of 11 October 2002.

50	In that letter (SM11), Ms Charles provided the following information as to which hospitals and clinics in Mpumalanga had Nevirapine available:

'Evander and Shongwe Hospitals are pilot sites and surrounding clinics are presently providing Nevirapine.'

The letter listed fifteen sites (namely those two hospitals and 13 surrounding clinics), where Ms Charles said Nevirapine was being provided.

51	I respectfully draw attention to the fact that this is inconsistent with the information which the First Respondent had provided in the attachment to the letter of 4 October 2002 from Dr Ntsaluba (SM8), in the following respects:

51.1	On 4 October, Dr Ntsaluba said that the provincial government had informed the national government that Nevirapine was available at 40 sites. A month later, the provincial government said that it was available at fifteen sites.

51.2	On 4 October, Dr Ntsaluba said that the provincial government had informed the national government that Nevirapine was available at the Philadelphia Hospital. A month later, the provincial government did not list Philadelphia as a hospital where Nevirapine was available.

52	I respectfully draw attention to the following further aspects of the letter SM11 from Ms Charles

52.1	Order 3(c) of the Constitutional Court order required the First Respondent to 'make provision if necessary for counsellors based at public hospitals other than the research and training sites to be trained for the counselling necessary for the use of Nevirapine'.

Mr Budlender asked how many counsellors had been trained at each facility which was providing Nevirapine.

The letter from Ms Charles states that two have been trained 'per facility (Hospital)'. This appears to mean that no counsellors had been trained at the clinics, and only two at each of the two hospitals at which Nevirapine was being provided.

52.2	Mr Budlender asked what additional training would be provided, to how many counsellors, at what facilities, and when this would be done in respect of each facility.

Ms Charles failed to provide this information. She replied:

'National Roll out plan, PMTCT [prevention of mother-to-
child transmission] training started on the 15 October 2002 to 19 August 2002 (sic) and 22 August 2002 to 26 August 2002.'

52.3	Order 3(d) of the Constitutional Court order of 5 July required the First Respondent to 'take reasonable measures to extend the testing and counselling facilities at hospitals and clinics throughout the public health sector to facilitate and expedite the use of Nevirapine'.

Mr Budlender asked to what further hospitals and clinics, testing and counselling facilities had been extended. Ms Charles responded by listing 90 sites which at the end of July 2002 were equipped to provide voluntary counselling and testing services. (I revert later to this list.)

Ms Charles did not indicate that testing and counselling facilities had been extended to any further hospitals or clinics at all.

52.4	Mr Budlender asked what steps the province had taken to make this programme known to actual or potential patients.

Ms Charles did not reply at all to this question.

53	I respectfully submit that even leaving aside the ambiguities in the letter from Ms Charles, on the face of that letter it is clear that:

53.1	the First Respondent is in breach of orders 3(b), 3(c) and 3(d) of the Constitutional Court, in that on her own version she has not taken the steps ordered by the Constitutional Court

53.2	the First Respondent has not carried out its duty to make the programme known to actual or potential patients, which is a necessary element for a programme such as this to meet the constitutional requirement of reasonableness.

54	Because of ambiguities in the letter SM11, on 14 November 2002 Mr Budlender wrote again to Ms Charles on behalf of the First Respondent (SM12) asking for confirmation that:

54.1	the only hospitals and clinics in the Mpumalanga which currently have Nevirapine available are those listed in paragraph 1 of the letter of 4 November (SM11), namely Evander and Shongwe Hospitals and their surrounding clinics.

54.2	the hospitals listed in paragraph 2 of the letter of 4 November which fall outside the designated pilot sites do not yet have Nevirapine available.

Mr Budlender also asked that if there were any hospitals other than Evander and Shongwe Hospitals and their surrounding clinics which currently have Nevirapine available, they should be listed in the First Respondent's response.

55	The First Respondent did not respond to this request for clarification, or to further letters of 19 November and 25 November.

56	On 2 December 2002 Mr Budlender wrote again to Ms Charles (SM13), repeating the questions raised in the letter of 14 November, and asking that Ms Charles also let him have a list of the clinics served by Evander and Shongwe Hospitals which have Nevirapine available. The letter threatened an application to court unless this information was now provided.

57	On 4 December 2002, Ms Charles replied on behalf of the First Respondent. This letter (SM14) stated as follows:

1.	The hospitals which are pilot sites which have Nevirapine available are Shongwe and Evander Hospitals. The surrounding feeder clinics have access to these hospitals for purposes of the Nevirapine programme. A list of feeder clinics is attached. [The attachment refers to twelve feeder clinics].

2.	The following hospitals have been approved for implementation of the Nevirapine programme:

Themba

Rob Ferreira

Ermelo

Standerton

Witbank

Philadelphia.

58	I respectfully submit that the following aspects of this letter are relevant and in fact very revealing.

58.1	The number of institutions which allegedly have access to Nevirapine was by this letter further reduced from fifteen to fourteen (as opposed to the original statement of forty).

58.2	The letter implies that the clinics do not in fact have Nevirapine available themselves, but only have 'access to' hospitals which have Nevirapine. This suggests that in fact that there are only two existing sites which have Nevirapine available on site, and not fourteen, fifteen, or forty as previously alleged.

59	The letter SM14 refers to hospitals 'which have been approved for implementation of the Nevirapine programme'. This can only mean that the First Respondent requires hospitals to obtain her approval, or the approval of her Department, before they can make Nevirapine available to their patients.

60	This interpretation is consistent with other evidence to which I will refer in due course.

61	The requirement that hospitals obtain 'approval' before making Nevirapine available is directly in breach of the order made by the Constitutional Court. That order very clearly places the decision as to whether Nevirapine should be provided, in the discretion of the attending medical practitioner, acting in consultation with the medical superintendent of the facility concerned.

62	That is precisely one of the major issues which were in dispute in the original application. The Respondents had adopted a policy which restricted the use of Nevirapine to identified pilot or research or training sites. Doctors at other sites in the public health sector were not permitted to provide Nevirapine to their patients. This restriction was challenged in the original application.

63	The Constitutional Court held that this policy was inconsistent with the constitutional obligations of the Respondents. The Court found that the attending medical practitioner and the medical superintendent were in the best position to decide whether the provision of Nevirapine was 'medically indicated', and that the respondents (the political authorities) were under an obligation to make it available where the attending medical practitioner and superintendent so decided.

64	The letter of 4 December 2002 (SM14) shows that the First Respondent is acting directly in breach of orders 3(a) (and (b):

64.1	she has not removed the restriction which prevents the provision of nevirapine outside the research and training sites; and

64.2	she has not permitted and facilitated the provision of nevirapine where in the opinion of the medical practitioner in consultation with the medical superintendent, this is medically indicated.

65	That this interpretation of the letter SM14 is correct, is confirmed by a letter written by the First Respondent herself to the Provincial Legislature, Mpumalanga on 26 August 2002 (SM15). In that letter, the First Respondent states that 'Philadelphia, Rob Ferreira, Witbank Hospitals applied for authorization to dispense Nevirapine'.

66	This is further confirmation that the First Respondent is implementing a policy which requires hospitals or clinics to apply for authorization in order to dispense Nevirapine.

67	The First Respondent's letter of 26 August 2002 (SM15) is significant in a further respect: it asserts that Lebogang and Mbalenhle clinics are prescribing Nevirapine. Mbalenhle clinic appears on the annexure to the letter of 4 December 2002 (SM14) as Embalenhle. However, Lebogang does not appear on the list of 4 December. It seems that Lebogang may previously have provided Nevirapine, but is no longer doing so.

68	At best for the First Respondent, between August and December 2002 all that the First Respondent did to comply with the order that Nevirapine be made available on an extended basis, was to increase the availability from two hospitals and two clinics within the pilot sites, to two hospitals and twelve clinics within the pilot sites.

69	In other words, there was no roll-out of provision beyond the pilot hospitals and their feeder clinics.

70	This is so despite the fact that:

70.1	according to the First Respondent's letter dated 4 November (SM11)

'Voluntary Testing and Counselling is available at all hospital and some CHC [community health centres].'

70.2	Annexure B to that letter listed 90 sites which at the end of July 2002 were

'equipped to provide VCT [voluntary counselling and testing] services. In other words, there are both human and material resources to provide VCT services - human resources such as trained professional nurses to do both counselling and testing, and material resources such as the HIV rapid tests.'

71	Order 3(b) of the Constitutional Court placed the First Respondent under a positive duty to 'permit and facilitate' the use of nevirapine where in the opinion of the medical practititoner (acting in consultation with the medical superintendent) this is medically indicated. She was ordered to do this 'without delay'.

72	Hospitals and clinics that have testing and counselling facilities should be able to prescribe Nevirapine where that is medically indicated.

73	At the end of July, there were 90 facilities which had the human and material resources do to the necessary voluntary counselling and testing. Despite this, the First Respondent failed to facilitate the provision of Nevirapine at any of the approximately 75 sites which were outside the pilot areas.

74	I submit that this establishes that the First Respondent is directly in breach of order 3(b) of the Constitutional Court.

75	Far from facilitating the provision of Nevirapine, the First Respondent and her officials have attempted to prevent and obstruct the provision of Nevirapine, and to pressurise doctors who provide it with out her permission.

76	For example, on 27 August 2002 representatives of the Applicant had a meeting with the First Respondent. The First Respondent was aware that the Applicant had arranged for supplies of Nevirapine to be made available to doctors at Philadelphia Hospital, who had prescribed it for their patients. Instead of expressing appreciation for what had been done, the First Respondent said at that meeting that the doctors were lucky that they had not been prosecuted under the Public Finance Management Act for not reporting that they had received a donation.

77	A further example appears from a report published in the Mail and Guardian newspaper during September 2002. In that report (SM16), Dumisani Mlangeni, spokesperson for the First Respondent's department, 'condemned the doctors' growing rebellion and warned that the province would be forced to charge anyone found dispensing nevirapine on hospital premises'.

78	The report SM16 is also relevant because Mr Mlangeni stated that a hospital could dispense nevirapine only if the superintendent ruled that it is capable - 'including confirmation that it has the necessary milk formula stockpiles for all affected babies ... Hospitals must pay for supplies from their own budgets.'

79	The requirement that hospitals have supplies of milk formula is one which was imposed by the First Respondent and her department. It is a further breach of orders 3(a) and (b) of the Constitutional Court.

80	To the best of my knowledge neither the First Respondent nor anyone else acting on her behalf or on behalf of her department has challenged the accuracy of the report SM16. Because of the urgency of this matter I have not yet been able to obtain a confirmatory affidavit from Justin Arenstein, one of the authors of that report, confirming that this is what Mr Mlangeni said to him. I shall do so and file it very shortly.

OTHER EVIDENCE OF BREACHES OF THE ORDERS OF THE CONSTITUTIONAL COURT

81	On 28 November 2002 The Star newspaper published extensive reports on the use of the AIDS budget in Mpumalanga. I attach a copy of the front page report (SM17). This led to responses by the First Respondent which, I submit, yet again demonstrated breaches of the orders of Court.

82	On 28 November the First Respondent was interviewed on Radio 702. During the course of that interview, Nonkosi Khumalo of the Applicant telephoned in to the radio station to put questions to the First Respondent. I attach (SM18) the relevant extract from a transcript of the relevant part of the interview. Fatima Hassan, who heard the interview, confirms in SM 19 that SM18 is, to the best of her knowledge, an accurate record of what was said.

83	In the radio broadcast, Ms Khumalo referred to letters which the First Respondent had said she had received from the Rob Ferreira and Themba Hospitals, and to other letters from Witbank and Barberton Hospitals. The First Respondent then stated as follows:

'Yes, I did indicate earlier this morning to the people of Mpumalanga. The copy that I have from Rob Ferreira and Themba was cc-ed to me, because the court order was very clear, it is saying that the Superintendent must ask permission from the HOD. Dr Sasi sent a copy to my office. That is why I am fully aware that these two hospitals have requested.'

84	The reference to 'HOD' is a reference to the Head of Department, in this case Ms Charles.

85	I respectfully submit that this is the clearest possible evidence that, in breach of the order of the Constitutional Court, the First Respondent refuses to allow the medical practitioners and superintendents to provide Nevirapine to their patients unless they have requested and obtained permission to do so from the provincial government.

86	The First Respondent also had a newspaper advertisement in her name widely published, in reply to the article in The Star. I attach (SM20) a copy of the advertisement which appeared in City Press of 1 December 2002.

87	In that advertisement, the First Respondent says that the province is ready to implement in phases, a nevirapine roll out plan 'early next year, 2003'. I respectfully submit that the following aspects are revealing:

87.1	Philadelphia Hospital is one of the Hospitals included in this planned roll out for next year. Dr Ntsaluba stated on 4 October that Nevirapine was available at Philadelphia Hospital.

87.2	This is not the first such promise which has been made. In August 2002 Mr Dumisani Mlangeni, the spokesman for the Mpumalanga Health Department, announced that the province was 'working on a plan to ensure that every hospital and clinic can roll-out the drug by 31 December'. I attach (SM 21) a copy of a report of that announcement in an electronic news service, Mpumalanga Today. To the best of my knowledge, this has never been denied by or on behalf of the First Respondent. Again, I will shortly file an affidavit by Mr Arenstein confirming that this is what Mr Mlangeni said to him.

88	The provincial government did not do what it had said it would do. Now, the First Respondent says in effect that:

88.1	far from rolling out to every hospital and clinic by 31 December, there has still not been any roll out at all beyond the pilot sites and surrounding clinics

88.2	only six facilities will provide Nevirapine in the first phase of the plan - which will be implemented only some time 'early next year';

88.3	hospitals with less than 150 beds will not participate even in the second phase, which will take place at an unspecified later stage;

88.4	no clinics or community health centres will participate in that second phase; and

88.5	the community health centres, clinics and hospitals with less than 150 beds will participate only in the third phase, at an even later unspecified time.

89	I respectfully submit that this demonstrates that little if any reliance can be placed on undertakings made by the First Respondent and her staff, and certainly a generalised statement of the kind contained in SM20.

90	The First Respondent has however belatedly started making arrangements to have Nevirapine provided at six hospitals in Mpumalanga. These include Rob Ferreira, Philadelphia and Witbank Hospitals. The Applicant welcomes that - but it is too little and too late to constitute compliance with the order of Court. And in addition, it remains subject to the First Applicant's insistence, contrary to the terms of the order of Court, that hospitals and clinics obtain permission from the provincial government before they provide Nevirapine to their patients.

91	I attach (SM23) a letter dated 2 December 2002 from Ms Charles to the Acting Superintendent of the Rob Ferreira Hospital in Nelspruit. This reads as follows (emphasis added):

'Your letter dated 2nd December 2002, refers wherein you request permission to implement the Nevirapine programme.

'According to your letter, Rob Ferreira hospital is ready to implement the Nevirapine programme. You are thus granted permission to implement the Nevirapine programme. Please ensure that you obtain the necessary supplies from the Pharmaceutical Depot. A copy of this letter has been forwarded to Mr Simon Choma at the Pharmaceutical Depot.'

92	I respectfully submit that this proves that the First Respondent continues, even now, to act directly in breach of order 3(a) made by the Court.

93	As appears from SM15, which is dated 26 August 2002, the Rob Ferreira Hospital, the Witbank and the Philadelphia Hospital had previously 'applied for authorisation' to dispense Nevirapine. According to the First Respondent, the hospitals concerned 'were assessed and they did not comply with the criteria'. The hospitals then 'realised that they still have some constraints which have to be addressed'.

94	I invite the First Respondent to state:

94.1	who assessed these three hospitals;

94.2	what are the criteria with which each of them did not comply at the time; and

94.3	what has changed since the end of August 2002 at each of them, with the result that they do now comply with the 'criteria'.

95	The First Respondent has failed and continues to fail to facilitate the provision Nevirapine on an extended basis despite the fact that according to her, at the beginning of July 2002 every hospital and some community health centres, 90 sites in all, were able to provide voluntary counselling and testing (SM11).

96	As I have stated above, hospitals and clinics that have testing and counselling facilities should be able to prescribe Nevirapine where that is medically indicated. The First Respondent is not entitled to require them to obtain permission to do so. That is a restriction which the First Respondent was obliged to remove.

97	I respectfully submit that it is clear that the First Respondent has failed to comply, and continues to fail to comply with the order of Court that the extension of the provision of Nevirapine take place 'without delay'. There is continued, inexcusable and unjustifiable delay. There is no explanation why:

97.1	every hospital could not already have been enabled to provide Nevirapine where in the opinion of the attending medical practitioner (in consultation with the medical superintendent), this is medically indicated; ad

97.2	those community health centres and clinics where voluntary testing and counselling are available, could not already have been similarly enabled to provide Nevirapine.

98	Instead, the First Respondent requires each of them to await her centrally-
controlled programme of permission and approval to reach them, regardless of whether the relevant medical authorities on site are ready to proceed.

99	I submit that this is a clear breach of the order of the Court.

THE FIRST RESPONDENT'S PERSONAL KNOWLEDGE OF THESE MATTERS

100	The First Respondent was one of the Respondents in the original application. The order was made against her. She is under a legal obligation to comply with that order, and to ensure that those in her Department do so.

101	The First Respondent must be fully aware of what is happening in her Department. On 19 July 2002 she issued an instruction (SM24) that henceforth the Directorate: HIV and AIDS would report directly to her and to the Head of department (Ms Charles).

102	The First Respondent can therefore not evade responsibility for the non-
compliance with the order of Court, by claiming a lack of knowledge of what has transpired.

URGENCY

103	The urgency of this matter is demonstrated by the attached affidavits of Stella Dubazana (SM25 and SD1). Ms Dubazana is a professional registered nurse, nurse counsellor and HIV/AIDS care-giver, practising as such at Cotlands Baby Sanctuary, where she is the Head Nurse.

104	Cotlands is a sanctuary for abandoned, abused, neglected and terminally ill children. At any one time, about 60% to 70% of the children are suffering from HIV/AIDS. Ms Dubazana's affidavits are based on her experience as a nurse working with such children.

105	Ms Dubazana describes the terrible pain and suffering which HIV positive children endure, and she describes the death of these children, and its consequences. I will not burden the record by repeating in this affidavit what is stated by Ms Dubazana.

106	The failure to provide Nevirapine is literally a matter of life and death, in its effects on children born to women who have HIV. Every day in which there is an unreasonable failure to provide Nevirapine where it is medically indicated, results in avoidable pain, suffering, and death of children.

107	Applicant recognises the difficulties inherent in conducting this matter as the holiday season approaches. It therefore asks for only limited shortening of the time limits prescribed by the Rules of Court. The Applicant gives notice that it will seek to hold the Respondents to the time limits set out in the Notice of Motion, and that in due course the Judge President will be approached for a date for the hearing of this application.

108	I ask that because of the urgency of this matter, the Court condone the Applicant's failure to comply with the time limits, forms and procedures prescribed by the rules.

109	I ask that the Court grant an order as prayed in the Notice of Motion.

SIPHOKAZI MTHATHI

SIGNED AND AFFIRMED BEFORE ME AT CAPE TOWN ON THIS DAY OF DECEMBER 2002, THE DEPONENT HAVING STATED THAT SHE HAS CONSCIENTIOUS OBJECTIONS TO TAKING THE OATH, THAT SHE REGARDS THE AFFIRMATION AS BINDING ON HER CONSCIENCE, AND HAVING AFFIRMED IN THE MANNER PRESCRIBED BY REGULATION.

COMMISSIONER OF OATHS