The South African Constitutional Court has denied the South African government leave to appeal against a ruling in December last year that it must provide nevirapine to pregnant women to prevent mother-to-baby transmission of HIV.
The court found that "government had not reasonably addressed the need to reduce the risk of HIV-positive mothers transmitting the disease to their babies at birth. More specifically the finding was that government had acted unreasonably in (a) refusing to make an antiretroviral drug called nevirapine available in the public health sector where the attending doctor considered it medically indicated and (b) not setting out a timeframe for a national programme to prevent mother-to-child transmission of HIV."
The ruling marks a decisive legal victory in the Treatment Action Campaign's effort to secure access to ARVs to prevent mother-to-child transmission of HIV, including an award of costs against the South African government.
"The challenge now is to monitor the governments' compliance with the order, but also to make full use of the legal principles set out by the constitutional court to ensure an improvement to access to treatment and care for all South Africans infected with HIV", said Mark Heywood, National Secretary of the Treatment Action Campaign.
In December 2001, Pretoria High court judge Chris Botha ruled that the minister of health and all South African provincial governments which were not already so doing, must roll-out nevirapine programmes beyond the 18 hospitals which were providing nevirapine to pregnant women in a government backed safety trial. In March Judge Botha allowed the government to appeal his decision to the Constitutional Court, but also granted an execution order which meant that the government must go ahead with the roll-out programme until the Constitutional Court ruled.
Several provincial administrations, including Gauteng - which covers Johannesburg and Soweto and is governed by the ANC - have already initiated nevirapine programmes for pregnant women, and in April a statement issued by the South African government promised to extend the nevirapine treatment programme “where demands of research dictate and where there is capacity” and to make a final decision in December “using research results whether to introduce universal access to nevirapine.” In light of the latest court decision, this position is now unsustainable.