19 December 2001

Yesterday, the Minister of Health and her colleagues met to consider the judgment of the Pretoria High Court on mother-to-child HIV transmission. TAC had hoped that government would accept the judgment and move forward to develop a coherent HIV/AIDS programme. The government's reponse has two-sides.

Following the court order and public support for TAC, the health Ministry announced that it will review its MTCT programme in January 2002 through a "broader stakeholder consultation". TAC welcomes this action and we will participate at every level to ensure that a reasonable and constitutional programme for the whole country is developed. TAC hopes that this "invitation" is not simply a temporary expedient to allay the anger of civil society. Even though our experience of negotiation with government for over five years on this issue is a negative one, we will act to make this consultation a success.

Public pressure and TAC court action has finally made the South African government listen. Now we hope that it will act reasonably and with humility to develop a national mother-to-child HIV prevention programme.

However, in their response to the judgment of the Pretoria High Court, the Minister of Health and Health MECs for eight provinces have also decided to challenge the court. This is regrettable. Their legal grounds for the appeal - "courts have no right to make policy"- demonstrate a profound misunderstanding of constitutional democracy.

Government action or inaction is not above the law. Judge Botha did not make policy on MTCT prevention. He found that the government did not have reasonable and constitutional policy. He directed the government to develop such a policy and to present it to the court by 31 March 2002. In a constitutional state, all courts have a legal power and duty to review policies and laws when any person alleges a violation of fundamental rights. We urge the government not to take one step forward and two steps back.

Because 200 children every day become infected with HIV and because women suffer tremendous anguish as a result, TAC urges Minister Manto Tshabalala-Msimang and her colleagues not to delay their appeal in any way. The best way forward is still, to drop the appeal and to work with civil society on a programme to present to the court with the support of TAC, the Children's Rights Centre and Save Our Babies.

TAC is confident that its position will stand the test of the Constitutional Court. We will continue to fight for the rights of women, children and people with HIV/AIDS. Let us work together to give women a choice and children a chance.

Siphokazi Mthathi (TAC)
Dr. Haroon Saloojee (Save Our Babies)
Cati Vawda (Children's Rights Centre)

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