sexual health and human rights in the african region - The ICHRP

children concerned were, on the whole, born to mothers who were indigent and
reliant on public health sector facilities as private care was beyond their means. 736
[17] The Constitutional Court upheld the decision of the High Court but modified the
order. It ordered the state forthwith to: 737
(a) remove the restrictions that prevent nevirapine from being made available for
the purpose of prevention of mother-to-child transmission at public health
facilities outside the pilot sites;
(b) permit, facilitate and expedite use of nevirapine for prevention of mother-tochild
transmission at public health facilities when in the judgment of the
attending medical practitioner acting in consultation with the medical
superintendent of the facility nevirapine is medically indicated, and if necessary,
the mother concerned has been appropriately tested and counseled; and to
(c) make provision if necessary for training of counsellors for counselling for
prevention of mother-to-child transmission outside the pilot sites.
[18] Unlike the Grootboom case, Minister of Health and Others was decided without
explicit recourse to international law. This is regrettable. While invoking relevant
international law would not have altered the outcome of the case, it would have,
nonetheless, provided the Court with a template for not only reinforcing its
reasoning, but also explicitly mapping out the parameters of the normative
content of section 27. Equally, given that women and children were at the centre
of Minister of Health and Others, it is unfortunate that the Court did not consider
deriving any assistance from the Women’s Convention and the Children’s
Convention as part of reinforcing the principle that to meet substantive
reasonableness under section 27, that access to health care services must be
sensitive to the needs of groups that are most vulnerable sections of society.
[19] In Minister of Health and Others the Constitutional Court followed its own
decision in Grootboom in refusing to endorse the notion of a minimum core
obligation as a “self-standing independent positive right”. 738 The Court reiterated
the “reasonableness” approach as the Court’s preferred approach. The notion of
a minimum core is at best relevant to determining reasonableness. 739 The Court
said that socio-economic rights could not be interpreted as conferring on
everyone a right to demand a minimum core service or good from the state. 740
[20] Among the countries surveyed South Africa is the only jurisdiction where a right
to health is constitutionally guaranteed. Though the Ethiopian, Malawian and
736 Ibid para 79.
737 Ibid para 135.
738 Minister of Health and Others v Treatment Action Campaign and Others para 39.
739 Ibid para 34.
740 Ibid.
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