Minister of Health and Others v Treatment Action Campaign and Others

The national Minister of Health and provincial MECs for Health limited the availability of the antiretroviral drug nevirapine, used to prevent mother-to-child transmission (MTCT) of HIV, to a small number of pilot research sites in the public health sector. Nevirapine was registered as safe and effective, approved for MTCT prevention, and offered to the government free of charge for five years. Doctors in the private sector could prescribe it, but public-sector doctors outside pilot sites were prohibited from doing so. Civil society organisations, led by the Treatment Action Campaign (TAC), challenged this policy, arguing that it violated constitutional rights to access health care services (section 27) and children’s rights to basic health care services (section 28), and that government had failed to implement a comprehensive national programme to prevent MTCT of HIV.

The appeal was dismissed. The Constitutional Court confirmed the High Court’s orders declaring that government must make nevirapine available at public health facilities where medically indicated, and ordering government to devise, fund, implement, and progressively roll out a comprehensive national programme to prevent mother-to-child transmission of HIV.

This landmark decision affirmed the justiciability and enforceability of socio-economic rights in South Africa. It clarified the standard of reasonableness under section 27(2) and confirmed that courts may issue mandatory orders to ensure compliance with constitutional obligations. The case had profound practical impact by expanding access to life-saving HIV prevention treatment and shaping public health policy.