TAC Civil Disobedience Campaign - 20 March 2003
CIVIL DISOBEDIENCE CAMPAIGN BEGINS TODAY
Tomorrow is Human Rights Day. On 21 March 1960, thousands of black
African people in South Africa left their passes at home. They marched
peacefully to police stations where they handed themselves over for
arrest. Our parents and ancestors chose to go to jail rather than to
obey unjust laws or to allow an immoral and illegitimate regime to
continue take away their dignity and equality. Mandela, Sisulu, Mbeki,
Sobukwe, Ngoyi, First, Slovo, Kathrada and many thousands more
sacrificed for democracy, equality and justice.
Today, we have a democratic and legitimate government of the people.
Yet, today we are once again breaking the law. We accept our
Constitution. We voted for this government, we accept its legitimacy
and its laws.
But we cannot accept its unjust policy on HIV/AIDS that is causing the
deaths of more than 600 people every day. Today we break the law to
end an unjust policy not an unjust government. For four years, we have
done everything in our power to persuade government to change this
policy: we have provided information and given evidence, campaigned
successfully to lower the price of drugs such as Fluconazole as well
as anti-retrovirals. Eleven months ago, the Cabinet tantalized people
with AIDS by recognizing that anti-retroviral drugs do "improve the
condition of people with AIDS". But the policy of non-provision of
these medicines has not changed.
So today, in Durban, Cape Town and Sharpeville 600 TAC volunteers, many
of them people living with HIV, are marching to police stations to lay
charges of culpable homicide against the Ministers of Health and Trade
and Industry. They are acting on behalf of people who have died or who
are dying because government policy denied them the medicine needed to
treat their HIV infection.
We demand a real partnership that prevents new infections and saves
We demand that the government immediately announce an antiretroviral
treatment programme in the public sector and that it signs the NEDLAC
treatment and prevention plan.
We hereby demand that a police docket be opened to investigate the
deaths of the many thousands of people who died from AIDS or AIDS
related illnesses and whose deaths could have been prevented had they
been given access to treatment.
We further demand that the Accused be arrested and charged with the
offence of Culpable Homicide for negligently causing the deaths of
these people. The details of the charge and a summary of some of the
facts which form the basis of the Charge are attached.
We believe that many thousands of people can bear witness to this
ACCUSED NO. 1
NAME: MANTOMBAZANA EDMIE
OCCUPATION: THE MINISTER OF HEALTH, SOUTH AFRICA
ACCUSED NO. 2
OCCUPATION: THE MINISTER OF TRADE AND INDUSTRY, SOUTH AFRICA
THE PEOPLE versus MANTOMBAZANA EDMIE TSHABALALA-MSIMANG alias "MANTO",
MINISTER OF HEALTH (RSA) and ALEXANDER ERWIN alias "ALEC", MINISTER OF
TRADE AND INDUSTRY (RSA). Hereinafter respectively referred to as
Accused No. 1 and Accused No. 2.
Both accused are charged with the crime of culpable homicide in that
during the period 21 March 2000 to 21 March 2003 in all health care
districts of the Republic of South Africa, both accused unlawfully and
negligently caused the death of men, women and children. They also
breached their constitutional duty to respect, protect, promote and
fulfil the right to life and dignity of these people.
1.Both accused Ministers knew that failure to provide adequate
treatment including anti-retroviral therapy for people living with
HIV/AIDS would lead to their premature, predictable and avoidable
2.In their capacities as Ministers in the government of South Africa,
both accused had the legal duty and power to prevent 70% of
AIDS-related deaths during this period through developing a treatment
and prevention plan, providing medicines and using their legal powers
to reduce the prices of essential medicines for HIV/AIDS including
3.Both accused Ministers had in their possession scientific, medical,
epidemiological, legal, social and economic evidence of the devastation
of potential and actual AIDS deaths on individuals and communities.
They not only ignored this evidence but suppressed it.
4.Both accused Ministers consciously ignored the efforts of scientists,
doctors, nurses, trade unionists, people living with HIV/AIDS,
international agencies, civil society organisations, communities and
faith leaders to develop a treatment and prevention plan, to make
anti-retroviral therapy available and to ensure that medicine prices in
the public and private sector were reduced to save lives.
5.Both accused Ministers were under a legal duty, by virtue of their
public office and the provisions of the Constitution of the Republic of
South Africa, to provide access to health care services by reducing the
price of essential medicines for HIV/AIDS including anti-retroviral
therapy, and by providing them through the public health sector. They
remain under this legal duty.
6.Both accused Ministers negligently failed to carry out their legal
duties. Their conduct in failing to make these medicines available to
people who need them does not meet the standards of a reasonable
person, and in particular a reasonable person holding the position of
Minister of Health or Minister of Trade and Industry.
7.During the period 21 March 2000 and 21 March 2003, this failure
caused the death of between 250 and 600 people every day as a direct
result of premature, avoidable and predictable AIDS-related illnesses.
THE PEOPLE versus MANTOMBAZANA TSHABALALA-MSIMANG (Minister of Health)
(hereinafter referred to as The Minister of Health) and ALEXANDER ERWIN
(Minister of Trade and Industry) (hereinafter referred to as The
Minister of Trade and Industry)
CHARGE: Culpable Homicide (unlawfully and negligently causing the
death of another human being)
SUMMARY OF SUBSTANTIAL FACTS
1.During the period 21 March 2000 to 21 March 2003, many people
throughout the Republic of South Africa died from AIDS or diseases
caused by AIDS.
a.Information on the prevalence of HIV/AIDS and HIV/AIDS related deaths
each year has been available to both Accused Ministers throughout their
terms in office.
b.It is estimated that at least 600 people in South Africa die from
AIDS-related illnesses each day.
c.In the past 12 years, the HIV sero-prevalence among first time
antenatal clinic attenders, as indicated by the Minister of Health's
own Department's Annual Antenatal Clinic surveys has risen from 0.76%
in 1990 to 10.44% in 1995 to 28.4% in 2001. Based on these surveys, it
is estimated that there are currently 5 million South Africans infected
with HIV. The latest survey estimates that 15,4 percent of women under
20 years, 28,4 percent of women between 20 and 24 years and 31,4 per
cent of women between 25 and 29 years are living with HIV/AIDS. The
survey further notes that "high HIV prevalence rates have significant
implications on the future burden of HIV-associated disease and the
ability of the health system to cope with provision of adequate care
and support facilities."
d.In the Department of Health's Second Interim Report on Confidential
Enquiries into Maternal Deaths in South Africa (1999), non-pregnancy
related sepsis mainly caused by AIDS was recorded as the leading cause
of maternal deaths. In the Report, 35.5 percent of women whose deaths
were reported were tested for HIV and 68 percent of these were HIV
positive. The Report noted that HIV is significantly under-diagnosed.
e.A study by the Medical Research Council, estimated that about 40
percent of adult deaths aged 15-49 that occurred in 2000 were due to
HIV/AIDS and that, if combined with the deaths in childhood, it was
estimated that AIDS accounted for about 25 percent of all deaths in
2000 and was the single biggest cause of death. The Report continued
that projections indicate that, without treatment to prevent AIDS, the
number of AIDS deaths with grow within the next 10 years to double the
number of deaths due to all other causes. The Report estimates that
approximately 200 000 people died of an AIDS-related illness in 2001
alone. The Minister of Health was directly involved in attempts to
suppress this report.
f.A report issued by Statistics South Africa on 21 November 2002
entitled Causes of death in South Africa 1997-2001: Advance release of
recorded causes of death, indicates that unnatural causes still remain
the leading cause of death. However, the report states that HIV-related
deaths are significantly under-reported. One reason advanced for the
under-reporting is that such deaths are often recorded as TB or
pneumonia-related. Of particular significance is the finding that
patterns of mortality shifted dramatically over this period, primarily
as a result of HIV, TB and pneumonia-related deaths. In 2001, for
example, 8.2% of all recorded deaths were attributable to unspecified
unnatural causes, down from 15.3% in 1997. In contrast, 34.6% of all
recorded deaths in 2001 were attributed to HIV, TB, influenza/pneumonia
and "ill-defined causes of death", up from 29.5% in 1997.
g.The largest single impact of HIV/AIDS on the public health sector
lies in the hospital sector. Research commissioned by the Department of
Health (Abt Associates, 2000) indicates that, in the year 2000, an
estimated 628 000 admissions to public hospitals were for AIDS related
illnesses, which amounts to 24% of all public hospital admissions. As
more people who are already HIV positive become sick each year, this
demand for hospitalisation will increase steadily every year in the
absence of significant alternative interventions. In financial terms,
the cost of hospitalising AIDS patients in public facilities was
estimated at the time to amount to at least 12.5% of the total public
2.Many of these people would not have died if they had access to
a.HIV/AIDS is a progressive disease of the immune system that is caused
by the Human Immunodeficiency Virus (HIV).
b.When left untreated HIV profoundly depletes the immune system and may
prove fatal because of the inability of the body to fight opportunistic
infections such as tuberculosis, pneumonia and meningitis.
c.The scientific evidence indicates that without effective treatment,
the majority of people with HIV/AIDS die prematurely of illnesses that
further destroy their immune systems, quality of life and dignity.
d.Early diagnosis, clinical management, medical treatment of
opportunistic infections and the appropriate use of anti-retroviral
therapy prolongs and improves the quality of life of people living with
e.Anti-retroviral drugs are a class of drugs that suppress viral load
activity and replication. When used effectively they reduce the volumes
of HIV to undetectable levels in the blood. This leads to immune
reconstitution. It also prevents and delays the destruction of a
person's normal immune system.
f.In its HIV/AIDS Policy Guideline, entitled Prevention and Treatment
of Opportunistic and HIV-related diseases in Adults (August 2000), the
Department of Health (which operates under the direction of The
Minister of Health) has recognised the efficacy of anti-retroviral
treatment, stating as follows: "Current research also strongly
indicates that suppressing HIV viral activity and replication with
anti-retroviral therapy or Highly Active Antiretroviral Therapy (HAART)
combinations prolongs life and prevents opportunistic infections".
g.The Medicines Control Council, has the statutory duty to investigate
and determine whether medicines are suitable for the purpose for which
they are intended, and whether their safety, quality and therapeutic
efficacy is such that they should be made available in South Africa.
They have registered various anti-retroviral drugs for treatment of
people who have HIV/AIDS.
h.The World Health Organisation (WHO) has included anti-retrovirals on
the Core List of its Model List of Essential Drugs (12th edition, April
2002). The Minister of Health is aware of the inclusion of
anti-retroviral medication in the World Health Organisation's Essential
i.With access to anti-retrovirals people with HIV/AIDS are able to lead
longer and healthier lives and it directly results in an improved
quality of life and the restoration of dignity, allowing people with
HIV/AIDS who were previously ill to resume ordinary everyday
activities, such as work.
j.A comprehensive plan to treat people living with HIV/AIDS as
advocated by civil society organisations, faith based organisations,
scientists, health care workers, trade unionists, activists and
communities over the past four years, would have reduced the number of
people dying of AIDS related illnesses and would have mitigated the
horrendous impact of AIDS on people in South Africa.
3.Both Accused were aware of need to make anti-retrovirals available to
prevent these deaths.
a.The Minister of Health has had direct knowledge of the serious impact
of HIV/AIDS and the need for care and treatment of people living with
HIV/AIDS, before she took up her position as Health Minister. As early
as 1994 The Minister of Health was a key drafter or the NACOSA National
AIDS Plan for South Africa 1994 - 1995. (The Plan states that "The
number of people becoming ill as a result of HIV infection is already
high and will continue to increase dramatically over the next few years
? the health care systems will have to cope with this increase and
strengthen their ability to provide HIV/AIDS care in order to reduce
the impact of HIV/AIDS on individuals, their families and
communities"). In terms of this Plan, it is also clear that The
Minister of Health was fully aware of the need to broaden access to
treatment for people living with HIV/AIDS ("In dealing with HIV/AIDS,
an essential drug list should be developed, based on the efficacy of
the drugs in the clinical management of the disease, as well as on
costs and availability? As research develops and knowledge about
treatment expands, it may be necessary to add drugs to those which are
routinely supplied. All drugs and medicines should be available as
widely as possible").
b.The Minister of Health and the Minister of Trade and Industry were
aware of the Joint Statement issued by the then Minister of Health, Dr
Nkosazana Dlamini-Zuma and Treatment Action Campaign, which confirmed
that all treatment for HIV/AIDS and all related medical conditions is a
basic human right (30 April 1999). At the time, the Minister of Health
called on all sectors to pressurise companies to unconditionally lower
the price of all HIV/AIDS medications to an affordable price for poor
people and countries.
c.The Minister of Health has herself confirmed that "access to
affordable drugs is a matter of life and death in our region" (World
AIDS Day speech, 1 December 2000). During this speech, The Minister of
Health also emphasised that access to drugs should be improved and that
"drugs at current prices remain unaffordable". The Minister of Health,
in her capacity as Minister of health, and as a doctor, knew that
action had to be taken to reduce the prices and that she could use her
legal power to procure or produce generic anti-retrovirals and other
essential HIV medications.
d.In its Cabinet statement of 17 April 2002, Cabinet, and the Accused
as members of the Cabinet, recognised that anti-retrovirals can improve
the conditions of people with HIV "if administered at certain stages
... in the progression of the condition, in accordance with
e.After taking up office, The Minister of Health and the Minister of
Trade and Industry have consistently been reminded of the need to
improve access to treatment for people living with HIV/AIDS since 1999
(e.g. Speech by Edwin Cameron at the 2nd National Conference for People
Living with HIV/AIDS on 8 March 2000, in the presence of the Minister
of Health; the Call for a Global March issued in March 2000; COSATU's
Submission on HIV Treatment to Health Portfolio Committee on 10 May
2000; letter by TAC requesting meeting with President and Minister of
Health on access to treatment dated 20 March 2000).
4.Both Accused had the legal duty to protect health and prevent deaths.
a.Our Bill of Rights mandates the state to "respect, protect, promote
and fulfil" all rights including the rights to health, life and dignity.
b.The state is obliged to create an enabling framework by putting in
place laws and regulations so that individuals will be able to realise
their rights free from interference.
c.The state may be obliged to provide "positive assistance, or a
benefit or a service?creating the conditions in which the rights can be
realised by the individual". This extends to the direct provision of
basic resources or devices where a failure to do so would result in a
denial of the realisation of rights.
d.At minimum, the state is required to take reasonable steps towards
creating the legal framework necessary for accessing affordable
treatments for HIV/AIDS. The right of access to health care services,
as entrenched in section 27 of the Constitution, therefore places a
positive obligation upon the state to take all reasonable measures to
ensure that anti-retrovirals are made affordable.
e.This interpretation of section 27 is strengthened by the recently
issued document entitled "Revised Guideline 6: Access to prevention,
treatment, care and support", which updates the International
Guidelines on HIV/AIDS and Human Rights, jointly issued by the Office
of the United Nations High Commission for Human Rights (OHCHR) and the
Joint United Nations Programme on HIV/AIDS (UNAIDS). Guideline 6 has
been revised to give effect to development on access to
HIV/AIDS-related prevention, treatment, care and support, as well as in
recognition of increased commitments regarding human rights related to
HIV/AIDS, including improved access to health care services. The
government's International Obligations in this regard is clear: The
Commission on Human Rights has confirmed that access to AIDS medication
is a key component of the right to the highest attainable standard of
health, enshrined in the Universal Declaration of Human Rights, the
International Covenant on Economic, Social and Cultural Rights and the
Convention on the Rights of the Child. The Committee on the Economic,
Social and Cultural Rights made it clear that the right to health
included inter alia access to treatment.
f.Adding to these specific international human rights instruments, all
Member States of the United Nations adopted a Declaration of Commitment
on HIV/AIDS in June 2001 which pledged to scale up the response to
HIV/AIDS within a human rights framework. In November 2001 in Doha, the
Ministerial Conference of the World Trade Organisation declared that
the Agreement on Trade-Related Aspects of Intellectual Property Rights
(TRIPS) should be interpreted to support public health and allow for
patents to be overridden if required to respond to emergencies such as
the AIDS epidemic.
g.In response to these developments, in July 2002, The OHCHR and UNAIDS
convened a group of experts to update the International Guidelines of
HIV/AIDS and Human Rights? The resulting revised Guideline 6 on "Access
to prevention, treatment, care and support" will assist States to
design policy and practice to ensure respect for human rights. ? Human
rights are more than principles to guide the national and global
response to AIDS: they are among the most powerful tools to ensure its
h.Both Accused has an ethical and common law duty to protect people and
promote the public interest.
5.Both Accused had knowledge of the legal and other powers available to
them to increase access to anti-retrovirals but did not act positively
where there was a legal duty to do so.
a.The Minister of Health and the Minister of Trade and Industry have
been aware of the different patents existing on HIV/AIDS medicines
since the end of 1999, if not earlier. Both Accused were further aware
of the remedies available to them in terms of the Patents Act and other
legislation to facilitate access.
b.There have been repeated requests that the Minister of Trade and
Industry issue compulsory licences for anti-retroviral treatment (e.g.
Memorandum from TAC to Department of Trade and Industry dated 14
February 2001 and Meeting between Department of Trade and Industry and
TAC on 23 February 2001). These requests came amidst independent
statements by generic pharmaceutical companies on the availability of
generic anti-retroviral and other HIV medications.
c.The Minister of Trade and Industry has been aware of the existence of
generic anti-retroviral medication and has repeatedly been requested to
ask pharmaceutical companies to give voluntary licences for the
manufacture of generics in terms of section 78 of the Patents Act (e.g.
letter by TAC to Department of Trade and Industry dated 23 February
d.The Minister of Trade and Industry has been aware of the capacity
existing within South Africa for the manufacture of generic
anti-retroviral and other medication (e.g. letter by Department of
Trade and Industry dated 25 September 2002).
e.The Minister of Trade and Industry has been aware of and understands
the regulatory options at his disposal to ensure the reduction in the
price of essential medicines (e.g. Meeting between Department of Trade
and Industry and TAC in 2001; and document presented by AIDS Law
Project on 22 November 2002).
f.The Minister of Health and the Minister of Trade and Industry have
acknowledged the importance of the Medicines and Related Substances
Amendment Act, in particular section 15C on parallel importation to
ensure that the prices of medicines are reduced (e.g. Meeting between
Department of Trade and Industry and TAC on 23 February 2001).
g.In a meeting with Minister Tshabalala-Msimang, as the new Minister of
Health, on 29 September 1999, it was clear that the Minister of Health
was aware of the possibility to issue compulsory licences or use
parallel importation as mechanisms to increase access to medication,
including medication to treat people living with HIV/AIDS. Instead she
declined to use these provisions pending the resolution of the court
case by the Pharmaceutical Manufacturers' Association against the South
African government's Medicines and related Substances Control Amendment
Act. At this meeting the Treatment Action Campaign also formally raised
the concept of a comprehensive treatment and prevention plan as a
viable option to provide affordable treatment and to train health care
6.Accused did not reasonably make use of these powers, causing more
harm than benefit in the process.
a.The Minister of Health and the Minister of Trade and Industry have
repeatedly delayed the implementation of the Medicines and Related
Substances and Control Amendment Act and its Regulations.
b.The Minister of Health and the Minister of Trade and Industry are
aware of the measures implemented in other countries like Brazil to
increase access to essential medicines, including anti-retrovirals, but
has denied offers by such countries to transfer technology and provide
7.Accused directed their will towards ensuring government policy is the
non provision of anti-retrovirals. Accused knew and foresaw that this
would cause the deaths of many people but remained undeterred by this
a.After a consultative process towards the government's Strategic Plan
on STDs and HIV/AIDS 2000 - 2005, where various organisations endorsed
the position that treatment and management of HIV/AIDS be prioritised
as part of a holistic strategy, treatment was however not included as
part of the government's Strategic Plan. (The recommendations by the
HIV and Human Rights Consultation which was issued in November 1999,
further recommended the publication of national standard guidelines on
the clinical management of HIV/AIDS; the auditing of health districts
for drug availability; the use of compulsory licensing and parallel
import mechanisms to reduce the costs of drugs; and the investigation
of bulk-buying for the SADC region to create economies of scale for the
generic manufacturing of all drugs including cost-effective
b.The Minister of Health has continued to deliberately exclude
anti-retroviral medication from the Department of Health's "Enhanced
response to HIV/AIDS and TB in the Public Sector" budget policy
document (compare the July 2001 and September 2001 versions of the
c.The Minister of Health has repeatedly omitted to implement measures
aimed at increasing access to anti-retroviral medication.
d.The Minister of Health ignored the recommendations of the National
Health Summit which was convened by the Department of Health in 2001,
and which recommended the implementation of pilot sites where
anti-retrovirals would be provided.
e.The Minister of Health has suppressed a report from a conference of
scientists convened by the Department of Health and the Health Systems
Trust on 13-14 August 2002. This report recommended the establishment
of anti-retroviral pilot treatment programmes in the public sector.
f.The Minister of Health further ignored the suggestions raised by
prominent scientists, medical professionals and organisations that
promoted the implementation of pilot antiretroviral sites, including
the recommendations in the Bredell Consensus Statement of 2001.
g.In the latest obstruction, the Minister of Health ignored the
attempts to reach a negotiated NEDLAC Framework Agreement for a
National Prevention and Treatment Plan, firstly holding back all
sections of the original draft that refer to the use of anti-retroviral
medicines and then denying the existence of the NEDLAC process.
h.The Minister of Health has further deliberately ignored wide-scale
civil society attempts to engage her amicably on the issue of treatment
provision for people living with HIV/AIDS.
These are some of the facts, many more can be added.
The Minister of Health, Manto Tshabalala-Msimang, and the Minister
of Trade and Industry, Alec Erwin, have unlawfully and negligently
caused the death of men, women and children. The majority of people who
die without access to medicine are poor and black. Both accused
Ministers and all members of parliament have access to private medical
insurance and to anti-retroviral therapy should they need it. Not only
have they been complicit and responsible for the deaths of people
living with HIV/AIDS, they also breached their constitutional duty to
respect, protect, promote and fulfil the right to life, dignity,
equality and health care access of these people. Both accused
Ministers have disregarded their legal duty of care to all people
living with HIV/AIDS in South Africa. They must immediately be arrested
and charged with culpable homicide.