Legal Commentary

One of the leading problems facing South Africa is the AIDS epidemic.  The number of people who have died and who are infected is staggering.  At one point, the U.S. government even chacterized the instability that could be brought about by the epidemic as a national security threat here.  One factor contributing to the problem was the response of former President Thabo Mbeki.  For reasons that defy rational explanation, the normally quite intelligent Mbeki, a longtime colleague of Mandela, rejected the accepted scientific view that HIV causes AIDS.  He therefore refused to roll out the most advanced medical treatments through the public health system.  His Health Minister even showed up at an international conference promoting lemon and garlic as the AIDS solution.  Fortunately, an incredibly effective advocacy group, the Treatment Action Campaign (TAC), held numerous protests regarding government policy.  TAC's leader, Zachie Achmat, has AIDS and refused to take his medications to draw attention to the problem.  Samantha Power wrote a great article for the New Yorker several years ago about TAC and Achmat.

Eventually, TAC initiated landmark litigation invoking the South African Constitution's right to adequate health care.  TAC acted on behalf of pregnant women with AIDS who had been denied a cheap drug, nevirapine, that virtually guaranteed that their babies would be born healthy.  The Constitutional Court ruled in TAC's favor, rejecting a government argument seeking only to provide the drug at a few pilot sites.  The Court said this national delay would result in many deaths.  Eventually, the government complied for the most part and many lives have been saved.  The TAC case's issuance of a specific remedy goes a step further than Grootboom in developing a socio-economics rights jurisprudence because the Court did not simply defer the remedy to Parliament.  The TAC case is an example of how socio-economic rights can make a huge difference and yet not destabilize separation of powers or result in "socialism."  I should mention that South African Constitutional Court cases can be found at:  www.concourt.gov.za, on Lexis, or at the site of the South African Legal Information Institute.