5 July 2002

Today, the Constitutional Court ruled in favour of the Treatment Action Campaign in the mother-to-child transmission prevention (MTCTP) of HIV case between the Minister of Health and 8 MEC's for Health versus the Treatment Action Campaign, Haroon Saloojee and the Children's Rights Centre. 

The court judgment should be available shortly on www.concourt.gov.za.

It will be posted on the TAC website on Monday (www.tac.org.za).

A more detailed report will follow later.

This is a historic victory and marks the end of the ten month legal battle between the TAC and the Minister of Health. The TAC reiterates that it wishes to work together with Government to make MTCTP a country-wide reality, and to ensure that people with HIV/AIDS have access to appropriate treatment, including antiretroviral medicines where necessary.


Here are the orders made by the Constitutional Court.

"We accordingly make 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."