On August 21st 2001, the Treatment Action Campaign served legal papers on the Minister of Health and nine Provincial Health Ministers seeking relief from the High court for two particular demands.
These two reasonable demands were supported by TAC with a series of affidavits that set out the scientific, economic, legal, moral and human reasons as to why such action is necessary. All of these affidavits are on the TAC website at www.tac.org.za.
Government opposition
The government is opposing this application. On 22 October, the government served on TAC's attorneys 1,000 pages of papers seeking to persuade the court that their Nevirapine "pilot programme" is reasonable, rational and not a violation of constitutional rights. Their response is described more fully below.
It is important to note that one Province, the Western Cape, has adopted a different approach. In their answering affidavit to the TAC, they set out a comprehensive MTCT roll-out programme that aims to reach 90% of pregnancies by mid-2002 and 100% coverage by 2003. The affidavit explains their approach to making formula feed and VCT services available, as well as their intention to use both Nevirapine and AZT. It is important that they have also made provision to ensure that mothers in areas that are not yet reached by the Western Cape rollout are able to access Nevirapine through the public health service as long as this is done according to proper procedures set out in protocols. The Western Cape affidavit was supported by annexures that include documented records of the acceptability of the programme and the significant numbers of women opting for VCT and Nevirapine.
On the basis of this affidavit, the TAC informed the Western Cape that it would not be seeking an order against it, nor costs, although the TAC would continue to cite the Western Cape in its legal papers because all Provinces in South Africa - even those that are doing the right thing - will benefit from a rational national policy.
With regard to the other eight Provinces and the National Ministry, the reasons for their opposition to TAC's order are as follows.
Safety
Although they admit that Nevirapine has been registered by the Medicines Control Council for use in reducing risk of HIV transmission, on numerous occasions in their court papers they try to question the safety of the medicine for individual women (often mixing-up documented adverse effects in adults using Nevirapine as part of "combination therapy" with its single-dose use for mother-to-child transmission).
They repeatedly state that Nevirapine use poses a threat to public health through the possible development of "catastrophic" resistance. These allegations are not made by experts in virology or pharmacology, as one would expect, but by officials of the Department of Health. The allegations are also made despite conclusive scientific evidence to the contrary. Their intention appears to be to confuse the court.
Breastfeeding
The government correctly points out that breastfeeding carries the risk of HIV transmission even for a child who has avoided infection as a result of Nevirapine use. Essentially, they argue that this future risk justifies denying the intervention to women and children at the point when its benefits are undisputed. They seem to argue that until breastfeeding traditions in South Africa can be changed or until formula feed and clean water can reach all poor people who would need it that access to the medicine should be limited. By denying medicine on these grounds, they deny parents the opportunity to keep control over their own lives after they have had access to a medically proven intervention.
Resource constraints:
The government correctly argues the most effective use of Nevirapine is as part of their programme that includes VCT, counselling about breastfeeding practices and access to formula milk. However, they argue, in fact state categorically, that beyond the identified pilot sites there is no existing capacity to provide this service. For example, the Eastern Cape, which is running pilot projects in East London and Rietvlei, states that in other parts of the Province including major urban areas such as Port Elizabeth, Grahamstown and Bisho, there is no capacity to do this. Despite the evidence in their own papers showing under-spending of the health budget of almost R500 million in 2000/01, they also say that budget limitations constrain their ability to do what is necessary. Much emphasis is placed on the lack of trained counselors and the difficulties this presents. Here, too, the situation is misrepresented. For example, the Free State Health Department claims that there are no NGOs that it can work with to provide and train counselors!
Costs
Costs: The government admits that nationwide implementation of a programme would probably be cost-effective. However, it also says that this would not make it affordable. Again, deceitful arguments are employed such as a claim that in the TAC affidavits on costs, consideration is not given to the individual cost borne by parents/women who must have money to use public transport to reach public health clinics, purchase formula feed, etc. This ignores the affidavit supplied by TAC detailing the financial and personal costs, particularly to women, of looking after young children as they sicken as a result of HIV infection and eventually AIDS. Several of the Provincial Health Departments provide estimates of what full provincial rollout of the programe would cost, the total of this is in the region of R250 million - less than half of what the government failed to spend from its current budget.
Tragically, the government papers are full of deceit, deception and contradiction. They frequently try to undermine established science and scientific institutions. There is very little of a sense of urgency to come to the assistance of pregnant women with HIV or to resolve the dilemmas expressed by hundreds of doctors in the TAC papers about not being able to treat women properly.
Sometimes their callousness is quite shocking. For example, one affidavit by Dr Lindi Makubalo of the Department of Health is spent trying to contest that the HIV epidemic is accurately described as "explosive". She claims it is not. Several papers later, a report from one of the pilot sites provides by the government showed that 49,5% of women who entered the programme had HIV infection.
In another affidavit, the Director General accuses SH, the mother who gave an affidavit describing her valiant efforts to protect her child, but who went into premature labour at a hospital when Nevirapine was not available, as "neglectful of her own health and that of her child."
The TAC's legal team is now working on its reply to all of the above. We are privileged to have access to some of the best scientists in South Africa and the world who are giving of their time to try to bring a proper resolution to this court case. We are struggling because certain of the key documents upon which the government relies to support its argument, including the full records of the MCC's registration of Nevirapine, have not yet been provided - despite our requests. TAC's replying affidavit has to be served and filed on Tuesday, 6th November.
The hearing of this case is formally set down for 26 and 27 November in the Pretoria High Court. These two days will impact on the lives of tens of thousands of South Africans and the futures of children, men and women living with HIV or AIDS without access to treatment as a consequence of other equally pernicious aspects of the current non-treatment policy of the government.
We call on health professionals, people of religion, trade unionists and all concerned people in South Africa and internationally to mark these two days by attending the court hearing and/or with actions that respectfully call on our government to fulfill its obligations to protect life, dignity, the best interests of the child or people's rights to health care services.
Mark Heywood
TAC National Secretary
31 October 2001