The South African government is to appeal against the High Court judgment ordering it to provide the anti-retroviral drug Nevrapine to HIV-positive pregnant women, Pretoria announced yesterday. The government has been ordered to provide the drug in public hospitals to prevent mother-to-child transmission of HIV-AIDS.
After discussions with eight provincial ministers of health, the national minister, Ms Manto Tshabalala-Msimang, said: "We have instructed our legal counsel to appeal the judgment to the Constitutional Court as soon as possible. We consider it critical, in order to create certainty in the public policy domain, to seek the wisdom of the Constitutional Court."
The decision is certain to provoke a further outcry from AIDS activists. They already suspect that government policy on the issue is underpinned by President Thabo Mbeki's sympathy with those who question the link between HIV and AIDS.
The strength of their opposition to government policy led to the successful application by the Treatment Action Campaign (TAC) to the High Court to compel the government to make the drug available. In her statement Ms Tshabalala-Msimang alluded to one of the central points advanced by the government in opposition to the TAC application: that by adjudicating on government policy the judiciary was contravening the constitutionally enshrined separation of powers and transgressing on the executive powers of government.
Judge Chris Botha, however, rejected that argument, contending that the judiciary was entitled to rule on whether government policy was consistent with the rights of citizens as prescribed in the constitution.
In a move of potentially great political importance, the SA Council of Churches yesterday backed TAC against the government. "We think it is the right thing to do," the Rev Gift Moerane, of the SA Council of Churches said, declaring the council's support of the right of HIV-positive pregnant women to be treated with Nevrapine.