Minister of Health and Others v Treatment Action Campaign and Others (No 2)

The national Minister of Health and provincial MECs limited the availability of the antiretroviral drug nevirapine in the public health sector to two designated pilot sites per province as part of a research and training programme to prevent mother-to-child transmission (MTCT) of HIV. Nevirapine had been registered as safe and effective, approved for MTCT prevention, and offered to government free of charge. Outside the pilot sites, public-sector doctors were prohibited from prescribing the drug, even where medically indicated. Civil society organisations, led by the Treatment Action Campaign, challenged this policy, arguing that it unreasonably restricted access to health care for HIV-positive pregnant women and their babies and that government failed to implement a comprehensive national MTCT prevention programme with clear timeframes.

The appeal was dismissed. The Constitutional Court confirmed orders requiring government to remove restrictions on the use of nevirapine at public health facilities where medically indicated and to plan and implement, without delay, a comprehensive national programme to prevent mother-to-child transmission of HIV, including voluntary counselling and testing.

This landmark decision affirmed the enforceability of socio-economic rights in South Africa and clarified the standard of reasonableness review for state policies under sections 26 and 27 of the Constitution. It strengthened children’s rights to basic health care under section 28 and established that life-saving treatment cannot be withheld by rigid policy where resources and medical efficacy are not in dispute. The case is a cornerstone of South African health rights jurisprudence.