Minister of Health and Others v Treatment Action Campaign and Others

1. Case Details

Case Name: Minister of Health and Others v Treatment Action Campaign and Others (No 2)¹

Citation: [2002] ZACC 15; 2002 (5) SA 721 (CC); 2002 (10) BCLR 1033 (CC)

Court: Constitutional Court of South Africa

Date: 5 July 2002

Delivered: By the Court (Chaskalson CJ presiding)

2. Introduction

In 2002, South Africa faced a severe HIV/AIDS crisis, and a significant proportion of infections in infants occurred through mother-to-child transmission during birth.² Nevirapine, a drug capable of cutting that risk substantially, was being supplied to government free of charge by its manufacturer. Despite this, government policy restricted its use to only 18 pilot sites. The Treatment Action Campaign (TAC) challenged this restriction, arguing that it violated the right of access to health care services in section 27 and children’s rights in section 28 of the Constitution. The case remains significant because it confirmed that socio-economic rights are judicially enforceable, not merely aspirational.

3. Facts

Mother-to-child transmission of HIV was a major public health concern. Nevirapine had been shown to be safe and effective, and was supplied to government at no cost. In 2001, government announced it would make Nevirapine available only at 18 designated “research” sites, citing concerns about drug resistance, the need for counselling, and limited resources. TAC argued this restriction was unreasonable, since most public clinics were capable of administering the drug and cost was not a barrier. TAC succeeded in the High Court, and government appealed to the Constitutional Court.³

4. Legal Issues

1. Was government’s Nevirapine policy reasonable, as required by section 27(2) of the Constitution?
2. Did the policy violate children’s right to basic health care under section 28(1)(c)?
3. What order should the Court make in the circumstances?

5. Arguments of the Parties

TAC: The policy was unreasonable. The drug was free and safe, and restricting it to 18 sites excluded most people who needed it, at the cost of lives.

Government: A cautious, phased rollout was necessary, since expanding access too quickly risked drug resistance. Courts should not dictate health policy or budgetary allocation to the executive.

6. Judgment and Reasoning

The Constitutional Court dismissed the appeal. It held that section 27 does not guarantee immediate access to everything for everyone, but requires government to take “reasonable measures” within its available resources. Applying the reasonableness standard from Government of the Republic of South Africa v Grootboom, the Court held that a policy is unreasonable if it excludes people in desperate need without good cause.⁴

The Court identified three key problems with the policy:

1. Too narrow: Most women could not access Nevirapine.
2. Unjustified reasons: Concerns about resistance and counselling capacity could be managed, and the drug itself was free.
3. No urgency: Infants continued to be infected daily while government delayed a national rollout.

The Court also found that the policy violated children’s rights under section 28(1)(c), though it stopped short of dictating precisely how government should run the programme — it declared the existing policy unconstitutional and left implementation to the executive.“The policy as it stands is unreasonable. It is therefore unconstitutional.”

7. The Order

The Court ordered government to:

1. Remove the restriction limiting Nevirapine to pilot sites.
2. Make Nevirapine available wherever medically indicated.
3. Permit doctors to prescribe it.
4. Expand testing and counselling capacity accordingly.

8. Significance

TAC confirmed that socio-economic rights carry real, enforceable content. “Available resources” cannot be invoked as a blanket excuse for inaction. Following the judgment, government rolled out Nevirapine nationally, saving thousands of infant lives, and the case established the reasonableness test that South African courts continue to apply to socio-economic rights claims today.⁵

9. Critical Analysis

The Court’s approach was principled and restrained. Rather than prescribing the details of government’s health policy, it confined itself to reviewing the reasonableness of the policy actually adopted — a distinction between review and interference that some critics understate when arguing the Court overstepped its role. Given that people were dying while a “research” programme proceeded indefinitely, deference to government’s timeline would have been difficult to justify. The judgment demonstrates the Constitution’s capacity to protect the most vulnerable even where doing so requires the courts to hold the executive to account on resource allocation.

10. Conclusion

TAC is a landmark judgment. It held that government’s Nevirapine policy was unreasonable and gave concrete meaning to the right of access to health care under section 27. It remains one of the most significant judgments on socio-economic and health rights in South African constitutional law.

Bibliography

Minister of Health and Others v Treatment Action Campaign and Others (No 2) [2002] ZACC 15; 2002 (5) SA 721 (CC); 2002 (10) BCLR 1033 (CC). Available at SAFLII: saflii.org/za/cases/ZACC/2002/15.html

Government of the Republic of South Africa and Others v Grootboom and Others 2001 (1) SA 46 (CC); [2000] ZACC 19.

Constitution of the Republic of South Africa, 1996.

Note(S):

1. TAC (No 2) [2002] ZACC 15 para 1.
2. TAC para 8; Constitution s 27, s 28.
3. TAC paras 6–10. (Note: the original High Court citation “2002 5 SA 721 (T)” appears to duplicate the Constitutional Court’s own citation and should be verified against the original judgment or SAFLII before publication.)
4. TAC paras 27–40, 78, 95, 123; Grootboom para 42.
5. TAC paras 27, 38.