Minister of Health and Others v Treatment Action Campaign and Others (No 1) [2002] ZACC 16 (5 July 2002)


Human rights and fundamental freedoms - Bill of Rights- access to healthcare - the availability and affordability of medical services, medication, and treatment for HIV positive mothers and their unborn children.

Case summary

The case began on August 21, 2001, as an application in the High Court. The applicants included various associations and members of civil society concerned about HIV/AIDS treatment and prevention. The appeal aimed to reverse orders made against the government regarding its response to HIV/AIDS, specifically addressing the risk of transmission from HIV-positive mothers to their babies at birth. The court held that the government had not adequately addressed this need by unreasonably denying access to the antiretroviral drug nevirapine in the public health sector when medically necessary, and by failing to establish a timeframe for a national program to prevent mother-to-child transmission of HIV.

The court found the government's policy regarding pregnant women with HIV to be unreasonable, resulting in the violation of constitutional rights. The court emphasized that financial constraints cannot override the government's obligation to protect constitutional rights and that alternative solutions must be found. The court ruled in favour of the applicants, stating that the policy infringed upon the rights of pregnant women and their unborn children. The case had significant implications for HIV/AIDS policy and prompted a change in the government's approach to HIV treatment.

The Constitutional Court ruled in favour of the applicants, deeming the government's policy denying antiretroviral drugs to pregnant women with HIV as unconstitutional. The court ordered the immediate provision of these drugs to all pregnant women in need. This landmark judgment highlighted the importance of safeguarding healthcare and the right to life, particularly in the context of HIV/AIDS in South Africa.

The court considered evidence presented by the applicants that showed the significant benefits of antiretroviral drugs in preventing the transmission of HIV from mothers to their unborn children. The court also noted that the government's policy disproportionately affected women and children, leading to unnecessary deaths and suffering.

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