A judgment handed down by the Durban High Court on Monday, dismissing an appeal launched by the Department of Correctional Services against a ruling that prisoners be given anti-retroviral treatments, includes a finding that the Government was in contempt of a court order. This has prompted concern that we may be on the brink of a constitutional crisis in this country. According to IOL HIV/AIDS:
The country could be facing a constitutional crisis over the government’s attitude to Aids treatment for prisoners, a High Court judge has warned.
Judge Chris Nicholson was dismissing an appeal in Durban on Monday by the department of correctional services against an order to immediately provide antiretroviral (ARV) treatment at Durban’s Westville Prison.
He said the respondents, who included the government as a whole, were in contempt of the June 22 court ruling, which obliged them to file an affidavit explaining how they were going to implement the treatment.
“If the government of the Republic of South Africa has given an instruction ‘not to comply with the execution order’ then we face a grave constitutional crisis involving a serious threat to the doctrine of the separation of powers,” he said.
“Should that continue, the members of the judiciary will have to consider whether their oath of office requires them to continue on the bench.”
The Treatment Action Campaign, which brought the application along with 15 prisoners, welcomed his ruling.
“It’s one of the most critical judgments we’ve had,” TAC general secretary Sipho Mthathi said in Cape Town, “not only because it reinforces the foundations of our constitution, but it also warns against what we fear is an emerging crisis, and that is the government becoming a law unto itself.”
Mark Heywood, spokesperson for the Aids Law Project, said the ruling marked a good day for prisoners and a bad day for the government.
“This judgment has to be one of the most damning of government conduct since the advent of our new constitutional order in 1994,” he said.
The separation of powers doctrine states that each branch of government (the executive, legislature and judiciary) must remain separate and not be interfered with by the other branches of government. Government’s failure to comply with the court’s order is the latest in a line of problematic decisions which threaten to infringe upon this constitutionally guaranteed doctrine and the rule of law itself.
So what now?
Judge Nicholson said in Monday’s ruling: “If the refusal to comply does not result from instructions from the first respondent, the government of the Republic of South Africa, then the remaining respondents must be disciplined, either administratively or in an employment context, for their delinquency”.
Other respondents are the head of Westville correctional centre, Correctional Services Minister Ngconde Balfour, Health Minister Manto Tshabalala-Msimang, and the KwaZulu Natal commissioner of correctional services and the province’s MEC for health.
Judge Nicholson said that until section 3 of the State Liability Act 20 of 1957 was declared unconstitutional, any court order against the state would be “a useless thunderbolt”.
He gave the department until September 8, 2006 to show that it was complying with Judge Pillay’s order. – Sapa
Another crisis of sorts may be looming with Health Minister, Manto Tshabalala-Msimang’s advocacy of a diet of beetroot, lemons and garlic as a means to combat HIV/AIDS. The Minister’s comments were harshly criticised recently and there were renewed calls for her dismissal for her increasingly marginal views on the treatment of patients with HIV/AIDS. It now seems that the Minister is acting unlawfully by making the claims she has been making about the therapeutic value of her vegetable diet. According to IOL Health:
Health Minister Manto Tshabalala-Msimang is breaking the law by making unproven claims about the effectiveness of alternative “treatments” for Aids, according to the South African Medical Association.
In a statement on behalf of the association, Sama chairperson Dr Kgosi Letlape said any claims of therapeutic effectiveness made without clinical trials and approval by the Medicines Control Council were illegal.
“I implore the minister to refrain from breaking the laws of the country,” he said.
“In terms of the laws of this country, anything considered therapeutic should be registered for that purpose, and people have to submit proof that it is therapeutic.
“And until that is done, you cannot go onto public fora and claim that it is therapeutic.”
This controversy begs the question what should be done when a Minister acts unlawfully and arguably negligently in the face of the HIV/AIDS pandemic and the President fails or refuses to take steps to address her conduct. After the way the President handled Jacob Zuma’s removal from office it is not unreasonable to expect that he adopt the same approach with the Health Minister. Unfortunately this does not seem to be on the cards and we are left wondering just how serious the government is about the wellbeing of its citizens and the rule of law?