Minister of Health v Treatment Action Campaign (No 2)

The Constitutional Court held that the government's policy of restricting nevirapine to research and training sites for prevention of mother-to-child transmission of HIV was unconstitutional. The Court ordered government to make nevirapine available at all public health facilities where medically indicated and to devise and implement a comprehensive programme to prevent mother-to-child HIV transmission.

The government restricted the provision of nevirapine, an antiretroviral drug that reduces mother-to-child HIV transmission, to a limited number of pilot research and training sites in the public health sector. The Treatment Action Campaign challenged this policy, arguing it violated the constitutional right of access to healthcare services, particularly for pregnant women living with HIV and their newborn children who could not access the pilot sites.

Whether the government's policy of restricting nevirapine to pilot sites breached the section 27 constitutional right of access to healthcare services and the section 28 rights of children.

The policy was unreasonable and therefore unconstitutional because it excluded those who could reasonably be included in a government programme to prevent mother-to-child transmission of HIV. Government was ordered to remove restrictions preventing nevirapine use at public health facilities and to plan and implement an effective comprehensive programme.

Government's obligation to take reasonable legislative and other measures to achieve progressive realisation of socio-economic rights requires that programmes must not exclude persons who can reasonably be included; blanket restrictions that serve no rational purpose are unconstitutional.

The Court applied the reasonableness standard for evaluating socio-economic rights obligations under section 27 of the Constitution. It found the restriction to pilot sites was inflexible and unreasonable because nevirapine was safe, available, and could be administered at facilities with capacity outside the pilot programme. The state's resources argument did not justify the blanket exclusion when relatively inexpensive life-saving treatment was feasible at additional sites.

The Court emphasised that while government has wide latitude in choosing how to implement socio-economic rights, courts have the authority and responsibility to ensure government meets its constitutional obligations and may issue mandatory relief requiring positive conduct.

This landmark case established enforceable standards for reviewing government socio-economic rights policies under sections 27 and 28 of the Constitution and confirmed courts' power to order government to take positive steps to fulfil constitutional obligations. It remains the leading authority on the justiciability and content of socio-economic rights in South Africa.

Minister of Health v Treatment Action Campaign (No 2) 2002 (5) SA 721 (CC) [2002] ZACC 15