TAC Electronic Newsletter

3 December 2004


TAC condemns government/ANC verbal attacks on Archbishop Tutu and COSATU

Is Geoff Budlender still dangerous? Reprint of article that appeared in Business Day

Response to Department of Health statement blaming TAC for litigation costs

Life Offices Association concessions are insufficient: We reprint a Business Day editorial which explains why

Reprint of article from The Star focussing on TAC NEC member, Gordon Mthembu, and how treatment has returned him to health

TAC is an amicus curiae in the Supreme Court of Appeal matter between Pharmaceutical Society of South Africa (PSSA) and Others v the Minister of Health and in the matter between New Clicks South Africa (PTY) Ltd. and Others v Minister of Health

See court papers and other related documents at: http://www.tac.org.za/Documents/MedicinePricingRegulations/medicinepricingregs.htm


TAC condemns ANC/government verbal attacks on COSATU and former Archbishop Desmond Tutu

The Treatment Action Campaign has been disturbed in recent days by the intensification of verbal attacks on the Congress of South African Trade Unions, in particular Secretary-General Zwelinzima Vavi, and on Archbishop Desmond Tutu.

We believe that both COSATU and Tutu are entirely within their rights to raise serious questions about our government’s progress with the implementation of strategies to eradicate poverty, prevent and treat HIV and to ensure the protection and expansion of genuine democracy and human rights throughout Africa.

Examining, commenting on and influencing policy and governance in South Africa are not merely the perogative of government but also of civil society. It is important for democracy that the voices of labour, faith-based organisations and NGOs are heard and their criticisms and concerns addressed seriously. It is equally important for critical voices in the ANC and in the tripartite alliance to be heard.

As progressive leaders and civil society, it is in all our interests to set the national agenda in this country. We do not want one party, or the elite of one party to do this for us. This is also why consultative spaces such as NEDLAC, the South African National AIDS Council, Parliament, and the media are vital. These processes of public participation help find solutions to complex public issues.

We regret an emerging pattern whereby critics of government policy and action are misrepresented and personally maligned. It undermines our democracy that this behaviour seems to be endorsed by President Mbeki and sometimes even carries his signature. The TAC and its leaders are also the consistent target of ongoing slurs and smears which avoid responding to the real issues we are trying to raise before our country.

The effect of this type of anti-democratic conduct is often to silence or intimidate people within the ANC. For example, it has been our constant experience over several years that rank and file ANC cadres are not given the information and education that they require in order to confront challenges such as that of preventing and treating HIV. Instead, they are fed a hodge-podge of half-truths and sometimes outright lies that ill-equips them to enter the most important debates of our time and to steer the ANC as our country’s most democratic and representative organization towards policies and programmes that will lead to a better life for all. The current method of responding to criticism is not in the tradition of Oliver Tambo, Nelson Mandela, Chris Hani, Ruth First and other leaders of the liberation.

We call on ANC leaders to recognize that not all criticism belies a hidden agenda and that challenging certain areas of policy, even whilst affirming others, should not make you an enemy of the state, government or the ANC. We call for an end to the misrepresentation of COSATU and its leaders and for a proper national debate on the issues that confront us.



Is Geoff Budlender still dangerous?

Reprinted from Business Day (Nov 08 2004 08:20:54:000AM Business Day 1st Edition)

By Nathan Geffen and Zackie Achmat

THERE is a possibly apocryphal story that apartheid prime minister John Vorster described Geoff Budlender as the second-most dangerous man in SA. At the time, in the early 70s, Budlender headed Nusas, the left-wing white student body that had been organising radical anti-apartheid activities.

Three decades later it seems government still considers Budlender dangerous. The Judicial Services Commission has for the third time turned down his application to become a judge.

Democratic Alliance leader Tony Leon ascribes this to racism, but this explanation is inadequate as three whites have been promoted to the bench since Budlender's first application.

The primary reason for the commission decision is more concerning: he was rejected because his principled legal independence brought him into courtroom conflict with government.

The majority of commission members recognise correctly it is vital to transform the judiciary. This requires making the courts demographically representative in race and gender. It is also vital to have progressive judges who understand the constitution and are prepared to enforce it independently of political rulers of the day, a goal that is not at odds with racial and gender representativity. Had the commission respected this principle Budlender would have been appointed.

Budlender is one of SA's finest human-rights lawyers. In the mid-70s he was part of a legal team that successfully defended Nusas leaders against terrorism charges. He joined the Legal Resources Centre under Arthur Chaskalson (now chief justice) and grew it into an institution that effectively defended victims of apartheid's human-rights abuses.

Budlender was the lawyer responsible for curtailing the effects of the influx control laws in the Khomani case. He dedicated himself to public-interest law and earned a reputation as a fierce and independent defender of the rights of the poor and oppressed; fierce in thought only though, for he is modest and unassuming.

After apartheid, Budlender served as land affairs director-general before returning to fight for human rights in the courts. Two cases he litigated stand out: Grootboom and Treatment Action Campaign (TAC). In the Grootboom case, the Constitutional Court ruled government had a duty to implement a reasonable plan to progressively realise the right to housing. In the TAC case the court ruled that government had a duty to implement a reasonable plan to prevent mother-to-child transmission of HIV/AIDS.

Government was on the losing side in both cases, and it was particularly embarrassed by the TAC's case, which exposed President Thabo Mbeki's record of denial and bungling of the HIV epidemic.

Both cases, in which Budlender's role was critical, ensured the constitution's socioeconomic provisions had a practical effect on many poor people. Budlender's three rejections raise an important question: is the refusal to appoint him a "payback" for his principled and thoughtful critique of government policy in these cases? He has shown an understanding of the constitution few equal.

It is a tragedy, not only for the judiciary but for all who value the administration of justice, that the commission has rejected his applications. But this is just one unfortunate symptom of a political climate in which criticism and campaigning against questionable state policies, even by people with track records of fighting against apartheid and for human rights, are met with ostracism.

It is a situation for which Mbeki bears much responsibility. The message he sends is that if you take a stand against his muted response to the Zimbabwean government's human rights abuses, his downplaying of the seriousness of rape in SA or his management of the HIV epidemic, you will be politically excluded, defamed by the ANC Youth League (as in the case of the TAC and Archbishop Njongonkulu Ndungane), labelled as racist if you are white, or "ultra-left" if you are black or white. On the other hand, favour can be curried by keeping quiet or, even better, consistently servicing power, as shown by the example of rewarding a former apartheid proponent who now enjoys cabinet status.

The president can do this because of the failure of significant numbers of prominent ANC members to defend publicly those who speak out on matters of conscience. The ANC is likely to be in power a long time. It is much less likely to make bad policy decisions if dissent can take place without fear of marginalisation. Budlender's exclusion from the judiciary is yet another incident that should make principled ANC members realise our country will be much better off if the ruling party encourages a culture of criticism of and independence from the presidency.

Geffen and Achmat are the national manager and chairperson of the TAC respectively. Achmat is an ANC member.



Response to Department of Health statement blaming TAC for litigation costs

Minister of Health is responsible for unnecessary deaths and high cost of litigation

On 30 November 2004, the Department of Health released a statement blaming the TAC for litigation costs of R5 million since 2001. The statement says "It is regrettable that the limited resources earmarked for improving health of all South Africans including people living with HIV and AIDS have to be spent in resolving legal disputes lodged by the TAC."

It is indeed regrettable that the TAC had to litigate against the Minister of Health to compel her to implement her Constitutional obligations.

Apparently most of this money was spent on the mother-to-child transmission court case and excludes the cost of our current court case requesting punitive costs against the Minister for failing to deal appropriately with our request for Annexure A of government's operational plan.

The TAC notes the following:

The Auditor-General issued a qualified audit for the Department of Health's failure to properly account for R100 million in grants given to NGOs. Why has the Department not issued a statement indicating what it intends to do to rectify this?

The Minister of Health is responsible for many unnecessary deaths due to AIDS since 2001 because she continuously blocked the implementation of mother-to-child HIV transmission prevention and the antiretroviral rollout. She continues to hamper the best efforts of her Department and civil servants.

The Department of Health apparently blames TAC for litigation we started but have not followed up on regarding the failure of the previous MEC for Health in Mpumalanga, Sibongile Manana, to implement mother-to-child transmission prevention. The fact is that implementation of the programme only commenced as a consequence of the TAC taking legal action. In other words, the initiation of litigation had the desired effect: compliance with the Constitutional order. (The TAC welcomes the commitment of the current Mpumalanga Provincial Department of Health to implementing mother-to-child transmission prevention and the operational plan.)

The TAC's lawyers and advocates charged a fraction of the Department's litigation fees, even taking into account that much of their time pro-bono. Why has government paid so much for its legal assistance?

Had it not been for the mother-to-child transmission prevention judgment, the antiretroviral rollout would have been further delayed. The Minister has recognised this in a recent complaint ruled on by the public protector, where she gave testimony that "Even though antiretrovirals are used widely in many of the developed and devleoping countries, the Government chose to approach their use in a cautious manner. This approach was however accelerated by the judgment of the Constitutional Court in the Treatment Action Campaign matter." (para 9.8, Public Protector report on the complaint of Anita Allen)

We ask what steps the Minister is taking to ensure that she meets her Constitutional obligations such that there is no further need to litigate against her.

See the Department of Health statement at http://www.doh.gov.za/docs/pr/2004/pr1130.html




Life assurance and HIV

The TAC reprints for fair use the following Business Day editorial which provides a mostly sound analysis of a recent statement by the Life Offices Association (LOA) that it would end HIV exclusion clauses. TAC spokespersons initially welcomed the LOA announcement on life assurance for people with HIV, but on closer examination, we are concerned that it is still too little. The LOA should examine means of providing life-cover to people with HIV. Greater availability of antiretroviral treatment will help facilitate this.


The following is reprinted from Business Day, 25 November 2004.

Business Day Editorial: Thursday, November 25 2004

Last week’s decision by the life assurance industry to scrap HIV/AIDS exclusion clauses on new policies is not nearly as significant as one might imagine. But it is still a small step in the right direction, one that hopefully will be followed by further steps later.

What the decision means is that if you apply for a new life policy, undergo the required HIV test and test negative, the life assurer cannot refuse to pay out later if you subsequently contract the virus and die of an AIDS-related disease. That is all it means. The decision by the Life Offices Association definitely does not enable those who test HIV-positive to demand that the life assurer sell them a standard policy.

Nor does it prevent assurers from loading premiums if they do choose to sell specialized life cover to those living with HIV/AIDS – products that Old Mutual, Sanlam and Metropolitan do sell.

What’s more, the decision does not apply to existing policies. So if you have been faithfully paying the premiums on your old policy for years and have the misfortune suddenly to find you’ve contracted the virus, don’t expect your life assurer to pay out if you end up dying of an AIDS-related disease.

As it happens, many life assurers were reportedly not enforcing the exclusion clauses anyway, simply because of the resources required and complexities involved – if someone dies of pneumonia, for example, it’s not necessarily easy to find out whether this was because they had AIDS.

That was one reason the Life Offices Association recommended to its members two years ago that they stop these exclusions. And some had already done so recently, with African Life scrapping the exclusion for both new and existing business and Old Mutual doing it for new business.

Now that the industry as a whole has gone that route, it puts HIV/AIDS on a par, to some extent, with other medical conditions such as diabetes or high blood pressure. If you are healthy at application stage but contract the condition later, your life cover remains intact.

But where HIV/AIDS is still treated very differently from other conditions is that, where assurers will usually write you a conventional life policy even if you do have diabetes – they will load premiums no doubt, but they will give you cover – they still won’t do that it you have HIV/AIDS.

A key problem is that the [long-term - (TAC editor)] efficacy of antiretroviral treatment is still untested. So where diabetes, high blood pressure and some cancers are seen as treatable and controllable, HIV/AIDS isn’t – not yet.

So life assurers are at this stage not willing to take the risk.

The industry’s decision to halt exclusions on new policies is a win for people who are concerned about the status of their insurance policies and for those living with HIV/AIDS.

It may be particularly important for funeral policies for low-income earners, who might not have bought these policies before because of the exclusion clauses. And the industry should move quickly to scrap the clauses on existing business too – otherwise they might find clients canceling old ones to buy new ones without the clauses.

But the decision doesn’t really help to take the industry much further in the direction of providing people living with HIV/AIDS with access to more affordable life cover.

For that to happen, treatment programmes are crucial. If we can extend treatment, effectively and successively, to millions of people infected with HIV/AIDS, such that they can consistently be expected to live another 15 years at least, then they suddenly become insurable, from the industry’s point of view.

That means the successful roll-out of government’s AIDS treatment programmes has repercussions beyond living or dying.

It would also give the families of those living with HIV/AIDS a better chance of financial security.



Article from The Star newspaper on TAC member, Gordon Mthembu and the Gauteng Treatment Rollout

Gordon Mthembu, one of the first people to benefit from the anti-retroviral rollout, doesn't think of himself as sick anymore

December 1, 2004

By Jillian Green

Gordon Mthembu would have died had he not been able to access anti-retroviral treatment when he needed it most.

Today the 40-year-old is the proud father of a healthy

2-month-old baby girl, and an outspoken activist.

At the beginning of this year, Mthembu realised that he would need to start anti-retroviral treatment (ART).

"It did not look good, my CD4 count was about 120 and I was getting very ill."

Under normal circumstances, a person would start ART when their CD4 count reached 200 or they displayed symptoms of full-blown Aids.

Working with the Treatment Action Campaign in Gauteng, Mthembu knew his chances of surviving were not good if he did not use the anti-Aids drugs.

"Because of the work I do, I know what the signs are and I recognised them in myself".

Mthembu describes how, weeks before starting treatment, he was gravely ill.

He suffered constant seizures, could hardly stand on his own and endured serious bouts of diarrhoea. "I thought I was dying," he said.

But just when Mthembu's CD4 count had dropped to about 30 and he was losing hope, the Department of Health announced its intention to implement the much-spoken-about Comprehensive Plan for Management, Care and Treatment of HIV and Aids.

"I didn't believe it at first. I thought it was another ploy by the government to dupe us into believing that treatment was a reality," he said.

"Today I do not think of myself as sick. Why should I? I am a person with a chronic illness which can be managed."

Since the rollout of anti-retrovirals (ARVs) began in April, 20 000 HIV-positive people around the country have started taking the anti-Aids drugs.

According to Minister of Health Manto Tshabalala-Msimang, the number of people receiving treatment increased from 11 250 at the end of August to 19 500 in October.

"This increase was part of the steady progress the Department of Health was making in implementing the plan," she said.

Latest figures indicate that treatment is available in at least one facility in 50 of the 53 districts in the country.

"A total of 103 facilities have been accredited and are providing care and treatment," the minister said.

Meanwhile, in an interview with The Star, Gauteng MEC for Health Gwen Ramokgopa said her department was streets ahead of its provincial counterparts when it came to HIV and Aids.

The Gauteng Health Department was one of the first provinces to make ART available at five state hospitals as part of the operational plan.


At that time, the province, which is spending a total of R95-million on the plan, had set a target of 10 000 people on treatment by March next year.

Since then, a total of 19 sites, including clinics, have begun providing anti-retroviral treatment and wellness programmes to thousands of HIV-infected people. Four more sites will become operational in 2005.

And Ramokgopa indicated the province is well on its way to meeting its target. "We have about 5 000 people receiving treatment and many more within the system who are being counselled and prepared to start anti-retroviral treatment."

Tshabalala-Msimang said that at least 67% of all public health clinics were providing voluntary counselling and testing services.

The number of people using these services had increased from 412 696 in 2002/2003 to 690 537 in 2003/4.

"The number of counsellors offering counselling services at the service points was over 10 000 at the end of March. Rapid HIV test kits were widely available at the service points," she said.

Added to this, three pharmaco-vigilance centres had been established to detect, assess and prevent adverse reactions to anti-retroviral drugs.

One of the centres at Medunsa focused on the use of anti-retroviral drugs and traditional medicine among HIV adolescents and adults.

The second centre, based at the Free State University, dealt with the use of anti-retroviral drugs among pregnant women and infants.

The University of Cape Town served as a reference centre for adverse reactions to all types of medicines registered in the country.

Tshabalala-Msimang said she was confident that, despite constraints, the Health Department was intensifying the implementation of the plan, and that access was increasing.

"What is critical is that we should work together to create a supportive environment, and to assist those who are on treatment to take their medication correctly."

Ramokgopa stressed the wellness programme.

"Providing ARVs should be the last resort when everything else has failed," she said.

The MEC said it was important to teach people about good nutrition using foods they would normally have access to.

"The department is also helping people to set up food gardens to provide for themselves," she said.

"People should understand that taking anti-retrovirals is a lifetime commitment. It's not like taking a Panado."