Judge Rules South African Government Must Provide Nevirapine to Pregnant Women Pending Appeal of Court Ruling
The Pretoria High Court issued an execution order today stating that the South African government can appeal to the country's Constitutional Court a High Court ruling mandating that it provide nevirapine to all HIV-positive pregnant women. However, High Court Judge Chris Botha stated that the government must provide nevirapine to HIV-positive pregnant women through all public health facilities "with the capacity for testing and counseling" while the appeal is pending, the South African Press Association reports. The government currently offers nevirapine at only 18 pilot sites throughout the country. A December High Court ruling stated that the South African government must provide nevirapine to all HIV-positive pregnant women through its public health facilities to prevent vertical HIV transmission. The government decided to appeal the decision, saying that the Constitutional Court had to decide whether the courts could intervene on policy issues. Botha said that although health facilities might be "inconvenience[d]" by the execution order if the government ultimately wins its appeal, the distribution of nevirapine in the meantime will result in a "gain in lives saved which cannot be considered a loss." He said that the public health system can "afford the extra [patient] load" of approximately 30 women per day, adding, "It would be odious to calculate the number of lives one could consider affordable in order to save the respondents the sort of inconvenience they foreshadow." Botha added that it is "unlikely" that the government's appeal will be successful, saying that the government will likely only be granted a "modification" of the original order (South African Press Association, 3/11). The appeal to the December ruling is not expected to be heard before the end of May (Associated Press, 3/11).
Sibani Mngadi, a spokesperson for the South African Health Ministry, said that the government will examine the execution order and may consider another appeal to the ruling. "If (the court) says we should implement without support mechanisms, it is a matter of concern," he said, adding that some of the 18 pilot sites had experienced problems distributing the drug. Zackie Achmat, chair of the Treatment Action Campaign, one of the groups that filed the lawsuit against the government, welcomed the most recent ruling, saying, "We are overwhelmed. ... We believe Judge Chris Botha has put morality back into law and policy by putting people's lives first" (Cohen, Associated Press, 3/11).
Western Cape, KwaZulu-Natal Excluded
Today's execution order did not apply to the governments of the Western Cape and KwaZulu-Natal provinces, which already supply nevirapine through public health facilities (South African Press Association, 3/11). Earlier this month, KwaZulu-Natal withdrew from the government's appeal of the December ruling, and the province hopes to offer nevirapine in 20 public provincial hospitals by July (Kaiser Daily HIV/AIDS Report, 3/4). The Western Cape province has established 30 test sites to offer antiretroviral drugs to HIV-positive pregnant women and rape survivors, and the premier of Gauteng province has also announced plans to distribute nevirapine through public health facilities (Kaiser Daily HIV/AIDS Report, 2/19).