Minister of Health and Others v Treatment Action Campaign and Others (2002)

In this landmark case, the Treatment Action Campaign (TAC) and others took the government of South Africa to court over their failure to provide pregnant HIV-positive women with Nevirapine, a antiretroviral drug that could prevent the transmission of the virus to their child during labour.

Despite the drug having been offered for free to government for five years, it had been announced that it would introduce Nevirapine to limit Mother-To-Child-Transmission (MTCT) only in certain pilot sites and would delay setting these up for a year, thereby denying most mothers access to treatment. The TAC launched a constitutional challenge, alleging a violation of the right to access health care services and demanding a program to make the drug available throughout the country.

Judge Chris Botha of the High Court ruled in favour of TAC, ordering that Nevirapine be made available to infected mothers giving birth in state institutions and that the government present to the court an outline of how it planned to extend provision of the medication to its birthing facilities, country-wide. The government appealed the decision to the Constitutional Court, who rejected the appeal, finding that the restrictions of Nevirapine to pilot sites excluded those who could reasonably be included in the program. The Constitutional Court ordered the Government to extend availability of Nevirapine to hospitals and clinics, to provide counselors; and to take reasonable measures to extend the testing and counseling facilities throughout the public health sector.

For further information relating to this matter, please visit the Constitutional Court's repository of court cases and documentation.