02/09/2026
Case: Minister of Health and Others v Treatment Action Campaign and Others (CCT 8/02)
Court: Constitutional Court of South Africa
Decided: 5 July 2002 (heard 2–6 May 2002)
FACTS:
This case concerns government's response to preventing mother-to-child transmission (MTCT) of HIV during childbirth. The drug nevirapine, a single-dose antiretroviral offered free to government by its manufacturer was scientifically proven safe and effective at reducing intrapartum transmission when given to mother and baby at birth.
Rather than making it broadly available, government restricted nevirapine to two research and training pilot sites per province (about 10% of public-sector births), where a "full package" of counselling, testing, formula-feed, and monitoring was provided. Outside these sites, doctors could not prescribe nevirapine even where medically indicated and testing/counselling facilities already existed.
The Treatment Action Campaign (TAC) and others challenged this policy, along with government's failure to implement a comprehensive national MTCT-prevention programme. The High Court ruled against government, ordering it to make nevirapine available wherever medically indicated and to plan a comprehensive national programme. Government appealed to the Constitutional Court.
LEGAL ISSUE/S:
1. Was it reasonable for government to confine nevirapine to research/training sites, excluding public facilities that already had testing and counselling capacity?
2. Was government constitutionally obliged to implement a comprehensive, timetabled national MTCT-prevention programme?
3. Does section 27(1) of the Constitution create a free-standing "minimum core" right, or must it be read together with section 27(2)'s "reasonable measures, within available resources" qualifier?
4. What remedial powers do courts have against the executive on separation-of-powers grounds — can they issue mandatory orders, or only declarations?
COURT'S REASONING:
- Minimum core rejected as self-standing right: Following Soobramoney and Grootboom, the Court held sections 27(1) and 27(2) must be read together. The test is whether government's measures are reasonable, not whether an individual can demand a "minimum core" service on demand.
- Efficacy, resistance, safety concerns rejected: The Court found nevirapine's safety and efficacy were well-established (including by government's own Medicines Control Council and WHO approval); the state's own use of the drug at pilot sites was itself proof of this. The government's stated concerns did not justify a blanket exclusion elsewhere.
- Policy was unreasonable: The policy of confining nevirapine to research and training sites fails to address the needs of mothers and their newborn children who do not have access to these sites. A reasonable programme cannot exclude those most in need, per Grootboom's reasonableness standard.
- Resource/cost objection failed: Since the drug was free and administering a single dose where testing/counselling already existed required no major new infrastructure, cost was not a legitimate barrier for that limited step.
- Children's rights (s.28): Newborns' urgent, life-threatening need reinforced the state's obligation, independent of parents' means.
- Separation of powers / remedial power: The Court firmly rejected the argument that courts may only issue declaratory relief against government. Courts have full power to grant mandatory orders (and, where necessary, structural interdicts/supervisory jurisdiction) to ensure constitutional compliance, though such orders should not needlessly constrain legitimate policy choices. A structural interdict was deemed unnecessary here since government had a strong record of complying with court orders.
- Changed circumstances: By the time of appeal, government had already begun expanding access (e.g., Gauteng, KwaZulu-Natal, Western Cape) and had substantially increased HIV/AIDS budgets, undercutting the "no resources" justification.
ORDER:
The Court set aside the High Court's order and substituted its own, declaring that:
- Government must devise and implement, within available resources, a comprehensive, coordinated MTCT-prevention programme (testing, counselling, appropriate treatment).
- The existing policy fell short because it barred doctors outside pilot sites from prescribing nevirapine even where medically indicated and facilities existed, and failed to train counsellors elsewhere.
Government was ordered, without delay, to:
- Remove restrictions preventing nevirapine's use outside research/training sites;
- Make it available at any facility where medically indicated (with appropriate testing/counselling);
- Train counsellors at other facilities as needed;
- Take reasonable steps to extend testing and counselling facilities system-wide.
Government remained free to adapt its policy consistently with the Constitution. Costs, including two counsel, were awarded against government. The application to adduce further evidence on drug-registration dates was refused.
