Justice and justiciability: Advancing solidarity and justice through South Africans' right to health jurisprudence

Medicine and Law

Volumn 27, Issue 3, 2008, Pages 661-683

  Forman, Lisa ^a  

^a UNIVERSITY OF TORONTO   (Canada)

Author keywords

AIDS treatment; Communitarian rights approach; Constitutional right to access health care services; Socio economic rights jurisprudence; South Africa

Indexed keywords

NEVIRAPINE;

ACQUIRED IMMUNE DEFICIENCY SYNDROME; ARTICLE; CIVIL RIGHTS; DRUG EFFICACY; DRUG SAFETY; HEALTH CARE ACCESS; HEALTH CARE AVAILABILITY; HEALTH CARE COST; HEALTH CARE FINANCING; HEALTH CARE NEED; HEALTH CARE POLICY; HEALTH PROGRAM; HUMAN; HUMAN IMMUNODEFICIENCY VIRUS INFECTION; JURISPRUDENCE; LEGAL ASPECT; MEDICAL CARE; PERSONAL AUTONOMY; SOCIAL JUSTICE; SOUTH AFRICA; TREATMENT REFUSAL; VERTICAL TRANSMISSION;

EID: 54549121347     PISSN: 07231393     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (119)

1. Address of Nelson Mandela at his Investiture as Doctor of Laws, Soochow University, Taiwan, 1 August 1993.
2. Constitution of the Republic of South Africa Act 108 of 1996 ( Constitution), sections 27 (food, health care, water and social security), 26 (housing), 29 (education), and 28 (children's rights to basic social amenities). While the 1993 Interim Constitution did not entrench universal justiciable socio-economic rights, it included a number of rights relevant to health, as well as health rights for specific populations such as children and detainees.
3. See Constitution of the Republic of South Africa Act 200 of 1993, assented to 25 January 1994, date of commencement, 27 April 1994, sections 9, 10, 8, 29, 30(1)(c) and 25(1)(b).
4. See for instance, Constitution, preamble, and sections 1(a) and (d); 7(1); 36(1); 39(1)(a); 41(c); 195(1)(f) and (g).
5. Constitution, section 9(3).
6. Constitution, sections 9(3) (equality), 8(2) and 239 (horizontality).
7. On horizontality, see Stephen Ellmann, "A Constitutional Confluence: American 'State Action' Law and the Application of South Africa's Socio-Economic Rights Guarantees to Private Actors" in Penelope Andrews and Stephen Ellmann, eds., The Post-Apartheid Constitutions: Perspectives on South Africa's Basic Law (Johannesburg: Witwatersrand University Press, 2001) at 444.
8. There is also a right to an environment that is not harmful to health or well-being in section 24(a) of the Constitution, supra note.
9. Constitution, section 7(2).
10. The duty to respect imposes a negative obligation to desist from interfering with people's enjoyment of rights; the duty to protect requires the state to prevent third party interference with people's rights; and the duty to promote and fulfil describes the state's positive obligation to realize access. The notion of a typology of rights is widely acknowledged to have been developed by Henry Shue and introduced into the international human rights machinery by Asbjorn Eide during his tenure as UN Special Rapporteur on the Right to Food in the early 1980s. See Henry Shue, Basic Rights, Subsistence, Affluence and US Foreign Policy (Princeton, NJ: Princeton University Press, 1980),
11. and Asborjn Eide, Catarina Krause and Allan Rosas, Economic, Social and Cultural Rights: A Textbook (Dordrecht: Martinus Nijhoff, 1995).
12. This typology has now been formally adopted within the United Nations machinery overseeing economic and social rights, see for example, CESCR, "General Comment 3: The Nature of States Parties' Obligations" U.N. Doc. E/1991/23 (CESCR, General Comment 3).
13. It is applied in the context of health in CESCR, "General Comment No. 14 (2000): The Right to the Highest Attainable Standard of Health (article 12 of the International Covenant on Economic, Social and Cultural Rights)" U.N. Doc. E/C. 12/2000/4, 11 August 2000 (CESCR, General Comment 14).
14. A recent study indicates that over two-thirds of all domestic constitutions have provisions regarding health and health care. See E.D. Kinney and B.A. Clark, "Provisions for Health and Health-Care in the Constitutions of the Countries of the World," Cornell International Law Journal 37 (2004): 285, 287.
15. These objections are elegantly outlined and addressed in "Economic and Social Rights and the Right to Health: An Interdisciplinary Discussion Held at Harvard Law School in September, 1993" Organized by the Human Rights Program, Harvard Law School, and the Francois-Xavier Bagnoud Center for Health and Human Rights, Harvard School of Public Health (Cambridge, MA,: Human Rights Program, Harvard Law School, 1995).
16. See Dandridge v. Williams 397 U.S. 471 (1970), where the U.S. Supreme Court refused to review the way that social grants were formulated or administered, reasoning that "[t]he intractable economic, social and even philosophical problems presented by public welfare assistance programs are not the business of this Court."
17. See Gosselin v. Qúebec (Attorney General), 2002 4 S.C.R. 429, where the Canadian Supreme Court refused to recognize that the right to security of the body places positive obligations on the government to provide social welfare; Deshaney v. Winnbago County Dep't of Social Services 489 U.S. 189, 194 (1989), where the US court held that the State of Wisconsin had no positive constitutional duty to protect a child from a gravely abusive father; and Andrews v. Law Society of British Columbia 1989 1 S.C.R 123, at paragraph 194, where Justice La Forest states: "much economic and social policy making is simply beyond the institutional competence of the courts: their role is to protect against incursions on fundamental values, not to second guess policy decisions."
18. See for example, Stephen Holmes, and Cass R. Sunstein, The Cost of Rights (New York: W.H. Norton, 2000)
19. and Paul Hunt, Reclaiming Social Rights: International and Comparative Perspectives (Aldershot: Dartmouth Publishing Company, Ltd. 1996).
20. See for example, footnote 8 supra.
21. Liberal democracy is defined as "a political system marked not only by free and fair elections, but also by the rule of law, a separation of powers, and the protection of basic liberties of speech, assembly, religion and property." Fareed Zakaria, "The Rise of Illiberal Democracy" (1997) Foreign Affairs at 37.
22. These are the tenets of neoliberalism encapsulated in the Washington Consensus, a set of market-oriented economic reforms designed to create economic growth. See John Williamson, "Did the Washington Consensus Fail?" (Speech to the Center for Strategic & International Studies, 6 November 2002), available online at http://www.iie.com/ publications/papers/williamsonI102.htm.
23. This is animated by Abraham Maslow's hierarchy of human needs which proposed that humans can only satisfy higher needs such as friendship, love and creativity once their basic physiological and safety needs are met. Abraham. H. Maslow, "A Theory of Human Motivation" (1943) 50 Psychological Review 370-396. This insight is similarly advanced in Amarty Sen's capabilities approach, which proposes that human capability is dependent on basic levels of health and education. See for example, Amarty Sen, Development as Freedom (NewYork: Anchor Books, 2000).
24. This article does not explore the decisions of lower courts on and related to section 27. In this regard see the High Court decisions in Van Bilion and others v. Minister of Correctional Services and Others 1997 (4) S. Aft. L. Rep. 441 (Cape Provincial Division);
25. B v. Minister of Correctional Services 1997 (4) S. Aft. L. Rep. 411 (Cape Provincial Division);
26. Residents of Bon Vista Mansions v. Southern Metropolitan Local Council 2001 (Witwatersrand Local Division), Case No: 01/12312 and most recently Treatment Action Campaign and Others v. Minister of Health Provincial Government of the Western Cape and Others (Cape Provincial Division) Case No. 7991/2007.
27. This was in response to objections to the constitutional inclusion of social and economic rights raised by various civil society groups (primarily business-oriented) at the Constitution's hearing on certification. Ex Parte Chairperson ofthe Constitutional Assembly: in re Certification of the Constitution ofthe Republic of South Africa 1996 (4) S. Afr. L. R 744 (S. Afr. Const. Crt.), at para. 77 ( Certification decision).
28. Certification decision, at para. 78.
29. See former Chief Justice Chaskalson's ex-curiae assertion that these rights sit at "the border of the separation of powers between the judiciary and the executive." Arthur Chaskalson, "From Wickedness to Equality: The Moral Transformation of South African Law" (2003) 1: 4 International. Jnl. of Const. L.590-609 at 601.
30. Soobramoney v. Minister of Health (Kwa-Zulu Natal) (1998) 1 S.Afr.L.R. 765 (S. Afr. Const. Ct.) (Soobramoney decision).
31. See for example, Darryl Moellendorf, "Reasoning about Resources: Soobramoney and the Future of Socio-Economic Rights Claims" (1998) 14 S. Afr. Jul. on Hum.Rts. 327-333 at 327; and Charles Ngwenya, "The Recognition of Access to Health Care as a Human Right in South Africa: Is it Enough?" (2000) 5:1 Health and Human Rights 27-44 at 33.
32. Soobramoney decision, at para. 11.
33. Soobramoney decision, at paras 24-25.
34. Soobramoney decision, at para. 28.
35. Soobramoney decision, at para. 31.
36. Soobramoney decision, at para, 32.
37. See for instance, Justice Sachs: "[h]ealth care rights by their very nature have to be considered not only in a traditional legal context structured around the ideas of human autonomy but in a new analytical framework based on the notion of human interdependence." Soobramoney decision, at para. 54.
38. Soobramoney decision, at para. 54.
39. Soobramoney decision, at para. 29.
40. Government of the Republic ofSouth Africa & Others v. Irene Grootboom & Others (2000) 11 B.Const. L.R. 1169 (S. Afr. Const. Ct.) (Grootboom decision).
41. Grootboom decision, at paras. 24 and 44.
42. Grootboom decision, at paras. 38, 40, 42 and 43.
43. Grootboom decision, at para. 44.
44. Grootboom decision, at paras. 35 and 43.
45. Grootboom decision, at paras. 40 and 43.
46. Grootboom decision, at para. 45.
47. This aspect of the Court's decision directly incorporated the interpretation of the UN Committee on Economic, Social and Cultural Rights of the phrase "progressive realization" in international human rights law. See CESCR, "General Comment 3: The Nature of State Party Obligations" U.N. Doc. HRI\GEN\1\Rev.1 at 45 (1994), at para. 9,
48. cited with approval in Grootboom decision, at para. 45.
49. Grootboom decision, at para. 32.
50. Grootboom decision, at para. 46.
51. Grootboom decision, at para. 68.
52. Grootboom decision, at paras. 27-33.
53. The minimum core is defined in relation to social rights in CESCR, General Comment 3, at para. 10. It is interpreted in relation to the right to health in CESCR, General Comment No. 14, at paras. 42- 47.
54. Grootboom decision, at para.33.
55. Cass R. Sunstein, "Social and Economic Rights? Lessons from South Africa" 2000 II:4 Constitutional Forum 123, at 123 and 131.
56. See for example, Marjolein Harvey, "How Can a Virus Cause a Syndrome? Asks Mbeki" iClinic (21 September 2000) online: Aegis ,
57. "Mike Cohen, "Mbeki Questions HIV Testing" The Associated Press (24April 2001),
58. and Edwin Cameron, "AIDS Denial and Holocaust Denial - AIDS, Justice and the Courts in South Africa," (2003) 120:3 S. Afr. L. J. 525.
59. South African Department of Health, "National HIV and Syphilis Antenatal Sero-Prevalence Survey in South Africa 2005," at . Note however that this figure jumps considerably in the demographic of adults aged 15-49 years, where approximately 18.78 percent of people are infected. See Report, p. 17.
60. Rob E. Dorrington et al, The Impact of HIV/AIDS on Adult Mortality in South Africa, Technical Report Burden of Disease Research Unit, Medical Research Council, 2001.
61. Rob E. Dorrington, Debbie Bradshaw, L. Johnson and Debbie Budlender, The Demographic Impact of HIV/AIDS in South Africa: National Indicators for 2004 (Cape Town: Centre for Actuarial Research, South African Medical Research Council and Actuarial Society of South Africa, 2004).
62. Rob E. Dorrington et al, "The Demographic Impact of HIV/AIDS in South Africa: National and Provincial Indicators for 2006," Centre for Actuarial Research, South African Medical Research Council and Actuarial Society of South Africa, at i.
63. Laura A. Guay et al., "Intrapartum and Neonatal Single-Dose Nevirapine Compared with Zidovudine for Prevention of Mother-to-Child Transmission of HIV-1 in Kampala, Uganda: HIVNET 012 Randomised Trial" (1999) 354 The Lancet 795-802;
64. Daya Moodley, "The SAINT Trial: Nevirapine (NVP) versus Zidovudine (ZDV) + Lamivudine (3TC) in Prevention of Peripartum Transmission" (2001) XIII International AIDS conference, Durban, South Africa, 9-14 July 2000, abstract no. LbOr2.
65. See for example, "Government Should Provide Anti-retrovirals" The Mercury (6 December 2002). (Reporting that a survey had shown that almost all South Africans are in favour of implementing anti-retroviral therapy to HIV-positive pregnant mothers and people living with HIV/ AIDS);
66. and Salim Abdool Karim et al., "Vertical HIV Transmission in South Africa: Translating Research into Policy and Practice" (2002) 359 The Lancet 992-993.
67. See for instance Prega Govender, "Doctors defy drug ban" Sunday Times (20 January 2002).
68. South African Department of Health, "Protocol for Providing a Comprehensive Package of Care for the Prevention of Mother to Child Transmission (PMTCT) in South Africa" 23 May 2001, at 4.
69. South African Constitutional Court, "Media Summary," http://www.constitutionalcourt.org.za/ Archimages/2478.PDF.
70. Minister of Health and another v. Treatment Action Campaign and others(2002)5 S.Afr.L.R. 721 (S.Afr.Const.Ct) (TAC decision).
71. TAC decision, at para. 48.
72. TAC decision, at para. 120.
73. TAC decision, at paras. 57-66.
74. TAC decision, at para. 50.
75. TAC decision, at paras. 71 and 72.
76. TAC decision, supra note.
77. TAC decision, at para. 68,
78. quoting Grootboom decision, at paras. 43 and 44.
79. TAC decision, at para. 70,
80. referencing Grootboom decision, at paras. 35-7.
81. TAC decision, at para. 78.
82. TAC decision, at para. 79.
83. TAC decision, at para. 125
84. TAC decision, at para. 35.
85. TAC decision, at para. 35.
86. TAC decision, at para. 96.
87. Grootboom decision, at paras. 93-4,
88. quoted in TAC decision, at para. 24.
89. Constitution of the Republic of South Africa Act 108 of 1996, at section 38.
90. Constitution, section 172(1)(a).
91. TAC decision, at paras. 100-112.
92. Khosa and Others v. Minister of Social Development and Others; Mahlaule and Another v. Minister of Social Development and Others, Constitutional Court of South Africa, Cases CCT 12/03; CCT 13/03, at para. 38 (Khosa decision).
93. Khosa decision, para. 82.
94. Minister of Health & Professor D. Mcintyre No v. New Clicks South Africa (Pty) Ltd & Others, Constitutional Court of South Africa, Case CCT 59/04, at para. 661 (New Clicks decision). The legislation in question was the Medicines and Related Substances Control Amendment Act No. 90 of 1997.
95. New Clicks decision, at paras. 13 and 14.
96. New Clicks decision, at paras. 16, 94, 314, 514 and 519.
97. See for example, Justice Ngcobo's assertion that while "the interests of the pharmacists is a factor to be taken into consideration ... they must yield to the interests of the general public." New Clicks decision, at para. 519.
98. For example, New Clicks decision, at para. 514 and 704.
99. See for example, Justice Sachs holding that "preventing excessive profit-taking from the manufacturing distribution and sale of medicines is more than an option for government. It is a constitutional obligation flowing from its duties under section 27(2)." New Clicks decision, at para. 659.
100. New Clicks decision, at para, 651.
101. See also para. 706, which states that "[P]rohibitive pricing of medicine ... would in effect equate to a denial of the right of access to health care."
102. See for example, Justice Sachs' dicta in the New Clicks decision, which indicates that: "the concept of reasonableness should not be used as an apparently neutral instrument which, regarding the status quo as the settled norm, serves to block transformation and freeze challengeable aspects of our public life ... In a society where distributions are manifestly unequal and unjust, it is a defence of the status quo and the failure to make corrective intervention, rather than a redistributive initiative, that could be open to a charge of unreasonableness." New Clicks decision, at para. 660, incorporating text from footnote 84.
103. Port Elizabeth Municipality v. Various Occupiers, Constitutional Court of South Africa, Case CCT 53/03, at para. 29 (Port Elizabeth Municipality decision).
104. Port Elizabeth Municipality decision, at para. 29.
105. S v. Makwanyane and Another 1995 (3) S. Afr. L. Rep. 391 (Const. Crt.), at para 308, referenced in Port Elizabeth Municipality decision, at para. 37, footnote 36.
106. For niore on ubuntu in the constitutional order, see also David Dikoko v. Thupi Zacharia Mokhatla, Constitutional Court of South Africa, Case CCT 62/05;
107. and Nonkululeko Letta Bhe & Others v. Magistrate, Khayelitsha & Others; Charlotte Shibi v. Mantabeni Freddy Sithole & Others; South African Human Rights Commission and Women's Legal Centre Trust v. President of the Republic of South Africa and Minister for Justice and Constitutional Development Constitutional Court of South Africa, Constitutional Court of South Africa, Case CCT 49/03, 69/03 and 50/03.
108. Port Elizabeth Municipality decision, at para. 37.
109. Port Elizabeth Municipality decision, at para. 38.
110. 880 pregnant women accessed MTCT services in 2006; 74 052 got NVP; 19 758 babies born to HIV positive mothers tested: 16 228 babies tested negative, 3470 tested positive. Ministry of Health, "100% Coverage for Prevention of Mother to Child Transmission of HIV," 12 March 2007.
111. Department of Health, Operational Plan for Comprehensive HIV and AIDS Care, Management and Treatment for South Africa 19 November 2003, (Care Plan) online: Government of Republic of South Africa.
112. Another 100- 110,000 people receive ARV in the private and not-for-profit sectors. See International Treatment Preparedness Coalition (ITPC), "Missing the Target #3: Stagnation in AIDS treatment Scale Up Puts Millions of Lives at Risk," 28 November 2006, at 45.
113. Kameshni Pillay, "Implementing Grootboom: Supervision Needed" (2002) 3 Economic and Social Rights Review 11, at 12.
114. See for instance, Theunis Roux, "Understanding Grootboom - A Response to Cass R. Sunstein" (2002) 12:2 Forum Constitutionnel4l-51, at 46,
115. and Sandra Liebenberg, "South Africa's Evolving Jurisprudence on Socio-economic Rights" (2002) 6:2 Law, Democracy and Development 159.
116. See also, David Bilchitz, "Towards a Reasonable Approach to the Minimum Core: Laying the Foundations for Future Socio-economic Rights Jurisprudence" (2002) 19 S. Afr. Jnl. on Hum. Rts 1-126 and Marius Pieterse, "Possibilities and Pitfalls in the Domestic Enforcement of Social Rights: Contemplating the South African Experience" (2004) 26 Human Rights Quarterly 882-905.
117. This is evident in the Court's elaboration of alternative regimes for enforcing the negative and positive duties that each constitutional right (whether social or civil) is interpreted to hold. Thus, the Court has held that civil rights impose positive duties that should be assessed according to the constitutional standard of reasonableness. On the other hand the Court has held that social rights impose negative duties not subject to progressive realization and which should instead be assessed under the Constitution's general limitations clause. See respectively, Rail Commuters Action Group and others v. Transnet Ltd Constitutional Court of South Africa, CCT 56/03, at paras. 70 and 88;
118. and Jaftha v. Schoeman and others; van Rooyen v. Stoltz and Others 2005 (2) S. Afr. L. R. 140 (Const. Crt.).
119. See for instance, Henry Shue, Basic Rights, Subsistence, Affluence and US Foreign Policy (Princeton, NJ: Princeton University Press, 1980).