TAC Sends Letter of Demand to the Minister of Health
16 March 2004
TAC Welcomes Start of Gauteng Treatment
Programme: Other Provinces Must Follow Gauteng's Lead
Minister Must Commit to Purchasing Interim Supply of Antiretroviral
Medicines to Avoid Court Case
The TAC warmly welcomes the announcement by the MEC for Health in
Gauteng that antiretroviral treatment will begin for people WITH AIDS
at 5 hospitals from 1 April 2004. This, together with the dates set for
starting treatment at 18 other hospitals and clinics comes as a relief
to people with HIV. TAC volunteers in Gauteng will now do everything
they can to help the Provincial government make the programme a success
and to save lives.
However, the announcement in Gauteng highlights again the need for
urgency at a national level and in all other Provinces. 600 people in
South Africa die of AIDS-related illnesses everyday. A study to be
published in the SA Medical Journal in April shows that adult deaths on
the population register have increased by 68% since 1998; most of this
increase is due to the HIV epidemic. Many of these deaths could have
been prevented and many more can still be prevented by proper care and
treatment. Antiretroviral treatment can help people with HIV/AIDS live
longer, healthier lives. Recognising this fact, Cabinet adopted a
comprehensive HIV/AIDS treatment plan on 19 November 2003 that included
a target to rollout antiretroviral therapy to 53,000 people nationwide
by 31 March 2004. The plan also commits to making treatment available in
at least one site in every district within twelve months and at least
one site in every local municipality within five years.
Yet to date there are less than 2,500 people on the programme
country-wide - and nearly all of them are in the Western Cape. The
National Department of Health has admitted that it will miss its target
for the end of March.
TAC believes the primary reason for the failure to meet this target is
the Minister of Health's lack of political will. Her justification for
delaying treatment is that the tender process for antiretroviral
medicines is not complete and therefore these medicines will only be
available in the public health system by the end of June.
The Minister acts and speaks as if she has no other options. She
does. She is failing to make use of regulations that clearly allow
Government to purchase an urgent interim supply of antiretrovirals
pending the finalisation of the tender process. She is also preventing
provincial governments from accessing funds expressly allocated for the
purchase of antiretrovirals until the formal tender process is completed.
There are hospitals and clinics that Government itself has identified
as ready to rollout treatment. Some of them have thousands of patients
waiting for medicines. Yet it seems the minister is prepared to let them
wait and possibly die so that the tender process can finish.
The TAC National Executive Committee (NEC) has evaluated progress on
the government's treatment plan. We recognise and acknowledge the work
that has been done at hospitals and clinics to prepare to treat people.
We recognise the work of the National Department of Health in finalising
protocols, training and education. But the delay in starting the
programme and providing sick people with medicines is unacceptable and
unnecessary. The NEC therefore passed a resolution authorising legal
action against the Minister of Health to compel her to authorise the
immediate procurement of antiretroviral medicines. The TAC Secretariat
met on Wednesday 10 March 2004 and, with deep regret, sent a letter of
demand to the Minister (copied below).
We still hope litigation will be unnecessary. We have met with senior
officials of the ANC and Department of Health to set out our concerns.
However, only the Minister can avoid court action. By close of business
on Wednesday, 17 March 2004, she must commit, in writing, to meeting the
Constitutional rights to life, dignity and access to health-care
services by authorising the urgent purchase of antiretroviral medicines
and distributing them to clinics and hospitals accredited under the plan
and are ready to proceed.
The TAC is working and will continue to work with a number of
provincial, local and district authorities to speed up the process of
implementation. We are pleased with the movement and genuine political
will being demonstrated by some of these institutions, especially the
Western Cape Department of Health, but also the Gauteng, Kwazulu-Natal
and, possibly, North-West Departments. In all provinces, there are
hospitals, clinics and health-care workers who stand ready to treat.
Although the political will of some provincial authorities is still
questionable, it is our view that the cause of the delay lies primarily
with the Minister of Health.
The Minister has been given seven days (from 10 March) to respond to
our letter of demand failing which we will proceed with legal action.
Thousands of lives are at risk and there is every reason for the
Minister, if she has any compassion, to meet our reasonable demands.
[END OF STATEMENT - BACK TO CONTENTS]
Letter of Demand Sent to Minister of Health
Dr ME Tshabalala-Msimang
Minister of Health
Private Bag X399
(012) 325-5526 and
Dear Dr Tshabalala-Msimang
URGENT PROCUREMENT OF ANTIRETROVIRAL DRUGS - IMPLEMENTATION OF
OPERATIONAL PLAN FOR COMPREHENSIVE HIV AND AIDS CARE, MANAGEMENT AND
TREATMENT FOR SOUTH AFRICA
1 We act on behalf of the Treatment Action Campaign (TAC).
2 We refer to our client's letter dated 20 February 2004, a copy of
which is attached marked annexure "A" to which we have not yet received
3 The TAC has welcomed the release of the Operational Plan for
Comprehensive HIV and AIDS Care, Management and Treatment for South
Africa (the Plan) approved by the Cabinet during November 2003. As you
are aware, the Plan constitutes the implementation by the Government of
its decision to make antiretroviral (ARV) medicines available to people
living with HIV/AIDS who are in need of ARV treatment. It also makes
provision for a plan to procure and provide these medicines.
4 Implicit in the Plan is the need for urgent supplies of ARVs to
accredited sites. Our client's concern in this respect was raised in its
letter to Dr Zokufa dated 3 February 2004, a copy of which is attached
marked annexure "B" to which we have not yet received a response. That
letter records that the Plan does not expressly provide for its
immediate implementation in a reasonable manner within the State's
available resources, so as to ensure that there is provision for and
access to a supply of ARV medicines to meet urgent interim needs. Our
client also expressed its concern about the lack of urgency on the part
of the drug procurement team in taking appropriate steps to ensure that
the procurement of ARV medicines meets the short, medium and long-term
needs of the Plan.
5 The result of this is that Government has committed itself to a
lengthy tender process as the only mechanism for procuring ARV
medicines. The Plan provides for a tender process which will take some
time and which is already behind schedule. Regrettably, the Plan fails
to make express provision for interim procurement. It makes no express
provision for the immediate and urgent procurement of ARV medicines and
the prescription and supply of these medicines to persons with a CD4
count below 200 and/or persons with very low CD4 counts and/or persons
who have already contracted a WHO defined stage IV illness, during the
interim period between the date of approval of the Plan, and the
finalization of the tender process.
6 In this respect, we bring the following to your attention
6.1 On 8 August 2003, Cabinet released a statement indicating that it
had considered a report of the joint Health and Treasury Task Team on
treatment options to enhance comprehensive care for HIV/AIDS in the
public sector. As a result, Cabinet instructed the Department of Health,
as matter of urgency, to develop a detailed operational plan on an ARV
6.2 On 19 November 2003 Cabinet approved the Plan (referred to in
paragraph 2 above);
6.3 The Plan identified facilities that would be ready to deliver ARV
treatment by the first quarter of 2004.
6.4 On 13 February 2004, some two months after Cabinet approved the
Plan, the Department of Health issued a notice published in the Tender
Bulletin (Vol. 464 Pretoria, 13 February 2004 No. 2315) inviting firms
and consortia to submit expressions of interest regarding the supply of
6.5 The deadline for submitting written expressions of interest was 27
6.6 According to the notice, a briefing session was to be held on 9
March 2004, where invitees would have been provided with documentation
on the Request for Proposals (RFP).
6.7 At a briefing to the National Assembly Portfolio Committee on
Health (the Portfolio Committee) held on 24 February 2004, the
Department of Health (represented by inter alia Dr Chetty, Dr Simelela
and Dr Zokufa) indicated that the procurement process is likely to be
completed towards the end of June 2004.
6.8 According to them, contracts for each of the ARV medicines on
tender are expected to be issued in the last week of May 2004, with the
delivery of medicines taking place two to three weeks later in June
2004. A copy of the relevant slide of the presentation is attached
marked annexure "C".
6.9 It is clear from the remainder of the parliamentary briefing that
no provision has been made for the urgent interim procurement of ARV
medicines. The Plan fails to provide for the procurement of ARV
medicines and the provision thereof to those persons whose lives depend
upon urgent access to these medicines, in the period between approval of
the Plan and the eventual procurement and supply of ARV medicines.
6.10 The lack of any provision for the interim procurement of ARV
medicines has resulted in at least one province having no option but to
procure ARV medicines using donor money and money from other programmes,
as it is legally entitled to, until such time that the tender process is
completed and contracts are accordingly awarded.
6.11 The failure to procure ARV medicines to meet urgent interim needs
means that sites that Government itself has identified as having the
capacity to provide ARV treatment safely and effectively in the interim,
cannot do so because no ARV medicines have as yet been procured.
7 Our client is aware of the need to have a comprehensive and
transparent procurement process that is in accordance with the
appropriate regulatory framework that governs state tenders.
8 A commitment to such a formal tender process does not justify denying
access to treatment in the interim for those in urgent need, where the
capacity to treat such persons in the public sector already exists.
9 We note that the Plan has identified several ARV medicines that will
be used for purposes of treatment. Of the medicines that have been
identified, we note that:
9.1 Government is already procuring some of the medicines that have
been advertised for its post-exposure prophylaxis and mother-to-child
transmission prevention programmes;
9.2 Of the nine ARV medicines advertised by government for tender, four
have a single supplier; and
9.3Potential suppliers of the advertised medicines identified
themselves by 28 February 2004 already.
10 Our client also notes that accredited health establishments and
assessed health establishments, all of whom have the capacity and
capabilities to implement ARV treatment have also already been
identified. In this respect, the department was to have provided an
accreditation report to a MinMEC meeting on 27 February 2004. We note
that to date this report has not been made public.
11 We are instructed that a mechanism that provides for urgent interim
access to ARV medicines is a reasonable measure within the capabilities
of the Government. We are also instructed that the Government has at its
disposal procurement mechanisms that comply with the prevailing
regulatory framework and that can be used to procure ARVs in the
interim. Below we set out these mechanisms.
12 The Regulations dealing with Supply Chain Management which came into
effect on 5 December 2003, as well as Practice Notes and Guides issued
by the National Treasury provide that an accounting officer/authority
(or a person duly delegated) can procure goods without having to tender
in cases where it is impractical to do so. For example,
12.1 In urgent cases or where there is a single supplier, an accounting
officer is permitted to procure goods through other means such as price
quotations and negotiations. In this respect, our client would like to
draw your attention to regulation 6 (4) of the 'Framework for Supply
Chain Management' Regulations issued in terms of the Public Finance
Management Act 1999.
12.2 In addition, our client would also like to draw your attention to
paragraph 3.3 of Practice Note Number SCM 2 of 2003 issued by the
National Treasury on 5 December 2003.
12.3 Also, our client would like to refer you to paragraphs 4.7.5,
4.7.7 and 4.7.8 of the 'Supply Chain Management Guide for Accounting
Officers/Authorities' issued by the National Treasury in February 2004.
13 There is consequently no rational, reasonable or lawful basis for
the failure to take appropriate steps urgently to procure ARV medicines,
on an interim basis, pending the finalisation of the tender process.
14 The failure to make such provision will result, in particular, in
irreparable medical harm to and/or the premature deaths of people living
with HIV/AIDS in situations where this is both predictable and
15 The state is under a constitutional duty to respect, protect,
promote and fulfil the rights set out in the Bill of Rights,
particularly the duty to take reasonable legislative and other measures
within its available resources to achieve the progressive realisation of
these rights, and also the rights to equality, life, dignity, access to
health-care services, the right of children to basic health care
services and bodily and psychological security.
16 The state is also under a duty to respect its international
17 Finally, the provisions of the Promotion of Administrative Justice
Act 2000 must also be complied with.
18 Our client therefore believes that the failure to procure ARV
medicines to meet urgent interim needs is in breach of the state's duty
to make provision for urgent interim procurement of and access to ARV
medicines. It also infringes the right of access to health care
services of those in urgent, desperate need of ARV medicines in the
period between approval of the Plan and the procurement and supply of
19 In addition, our client is concerned that as of 1 April 2004,
provincial conditional grant allocations for the purchase of ARV
medicines appear to be restricted to the purchase of medicines procured
only in terms of the national tender process. This will mean that
provinces will not be able to use the money until the tender process is
completed. We understand that provinces would be eager to make use of
such funds immediately for purposes of urgently procuring ARVs prior to
the finalisation of the tender process, that is, to satisfy interim
20 In the circumstances we are instructed to demand that within seven
calendar days of the date of this letter that you undertake:
20.1 To use the alternative mechanisms available for the procurement of
ARV medicines on an urgent basis pending their availability pursuant to
the finalisation of the tender process; and/or
20.2 That you will by no later than 31 March 2004 authorise provinces
to use their 2004/2005 conditional grant allocations to procure ARV
medicines immediately and directly from suppliers pending the
finalisation of the tender process.
21 If you decline to accede to either or both of the afore-going
demands, our client requests that you provide written reasons for your
refusal within seven calendar days of the date of this letter.
22 Kindly note that if we do not receive a satisfactory response within
seven calendar days of receipt of this letter, our client will apply for
the appropriate relief to a Court. We sincerely hope that this will not
Law & Treatment Access Unit
AIDS Law Project
1 PREMIER, EASTERN CAPE
2 PREMIER, FREE STATE
3 PREMIER, GAUTENG
4 PREMIER, KWAZULU-NATAL
5 PREMIER, LIMPOPO
6 PREMIER, MPUMALANGA
7 PREMIER, NORTHERN CAPE
8 PREMIER, NORTH-WEST
9 PREMIER, WESTERN CAPE
[END OF LETTER OF DEMAND - BACK TO CONTENTS]
Letter to Minister Manto Tshabalala-Msimang
20 February 2004
Dr Manto Tshabalala-Msimang
Minister of Health
Private Bag X399
And per fax: (012) 325 5526
Dear Minister Tshabalala-Msimang
RE: ANNEX A.1 AND A.2 TO THE OPERATIONAL PLAN FOR COMPREHENSIVE HIV AND
AIDS CARE, MANAGEMENT AND TREATMENT FOR SOUTH AFRICA
We welcomed the release of the Operational Plan for Comprehensive HIV
and AIDS Care, Management and Treatment for South Africa' ('the Plan').
The Plan is the culmination of a number of policy and other developments
over the last few years. We therefore support the commitment by
government to make life saving treatment available to those people
living with HIV/AIDS who are in need of antiretroviral treatment.
Increased illness and premature avoidable deaths from AIDS-related
illnesses requires the urgent, immediate and reasonable implementation
of the plan to rollout antiretrovirals in order to improve the quality
of life and to save the lives of people living with HIV/AIDS. Access to
information about patient targets, time-lines and tasks / activities
will allow community organisations and the broader public to assess the
progress of the Plan and to assist government with the reasonable
implementation of the Plan where any gaps may exist.
We are encouraged that several Annexes to the Plan (Annexes to the
Executive Summary and Chapters I; IV; V; XI; XIII; XIV; XV) are publicly
available. However, in light of the urgency that is required to
implement the Plan in a reasonable manner, we are worried that Annexes
A.1 and A.2 have not, as yet, been made publicly available some three
months after the Plan was finalised and presented to the Cabinet and
We would therefore like to request copies of Annex A.1 (week by week
schedule for the pre-implementation period) and Annex A.2 (Detailed
Implementation Plan). Both Annexes are referred to and identified in
the Plan (referred to at paragraphs 135 - 136, page 51, Executive
Summary). Of course, if either Annex has been amended since the Plan was
first released, we would appreciate copies of the original as well as
any subsequent amended version(s).
It is important that community organisations and the broader public
have access to Annexes A.1 and A.2 because according to the Plan, they
contain detailed information relating to the implementation of the Plan:
First, it appears that Annex A.1 contains information about
pre-implementation tasks and includes a weekly schedule for the
pre-implementation period. Second, Annex A.2 entitled the 'Detailed
Implementation Plan' appears to set out the tasks that have to be
completed in each stage of the Plan for each area of activity (in other
words, a list of tasks that have been identified relating to the
implementation of the Plan). Even though the general target timelines
are reflected in the Plan at page 10, Annexes A.1 and A.2 are not
attached to the Plan or publicly available as yet.
We trust therefore that you will provide us with copies of Annexes A.1
and A.2 by 25 February 2004.
In addition, we would also like to have a meeting with your offices to
discuss, in particular, the issue of reasonable timelines in so far as
the implementation of the Plan is concerned.
We hope that we can arrange to have a meeting by no later than the end
of February 2004. We look forward to a constructive meeting where we
will be able to discuss key aspects of the implementation of the Plan in
greater detail. We hope that all the members of the Strategic
Management Team (SMT) will be able to attend the proposed meeting as
well. Of course we are willing to meet on a date, time and venue that is
convenient for you.
We look forward to hearing from your offices shortly.
Zackie Achmat Sipho Mthati
Chairperson Deputy Chairperson
[END OF LETTER TO MINISTER OF HEALTH - BACK TO
Letter to President Mbeki
20 February 2004
President Thabo Mbeki
Private Bag X1000
And per fax: (021) 462 2838 and (012) 323 8246
Dear President Mbeki
OPERATIONAL PLAN FOR COMPREHENSIVE HIV AND AIDS CARE, MANAGEMENT AND
TREATMENT FOR SOUTH AFRICA
The Treatment Action Campaign (TAC) welcomed the release of the
Operational Plan for Comprehensive HIV and AIDS Care, Management and
Treatment for South Africa' ('the Plan') in November 2003. We view the
Plan as a practical and achievable vision, which if implemented urgently
and reasonably, will save the lives of many thousands of people living
with and affected by HIV/AIDS. It will also bring about improvements in
the general quality of care and service in our public health system.
The plan estimates that up to 500,000 people are in immediate need of
life-prolonging antiretroviral (ARV) medicines. It recognizes that its
urgent, diligent and immediate implementation in a reasonable and
defensible manner is necessary to improve the quality of life and
prolong the lives of people who need ARVs. This is in accordance with
the Cabinet statements of 8 August 2003 and 19 November 2003 - both of
which TAC has publicly supported and welcomed.
We have already written to the Minister of Health as well as to the
MECs for health in all the provinces. We have offered them our
assistance with the implementation of the Plan.
The successful implementation of the Plan depends heavily on
unambiguous leadership. In this respect, the Office of the Presidency
plays an important role in ensuring that the public does not receive
mixed messages about the aims and objectives of the Plan, its
implementation, the science of HIV/AIDS and the use of antiretrovirals.
We therefore request an opportunity to meet with you.
The TAC has met with the Deputy President in his capacity as the
Chairperson of SANAC. The critical situation that is presented to us by
this national health emergency must receive the open direct and
unambiguous support of your office.
Regretfully, on several occasions, our requests to meet with you have
been declined. In regard to the nature of time critical elements
affecting execution of the Plan, we are hopeful that we will be given an
opportunity to meet with you before the next general election on 14
April 2004. We therefore urge you to recognise the TAC as a genuine and
legitimate partner in preventing and treating HIV/AIDS and creating a
People's Health Service. We are committed to ensuring that people's
lives are saved through the successful implementation of the Plan.
We hope to hear from your offices as a matter of urgency.
Zackie Achmat Sipho Mthati
Chairperson Deputy Chairperson
Mandla Majola Mark Heywood
National Secretary National Treasurer
[END OF LETTER TO PRESIDENT - BACK TO CONTENTS]
Letter Sent to South African National AIDS
Council (SANAC) Regarding Confusing and Damaging Allegations Made by
AIDS Denialist David Rasnick about President Mbeki
ATT: SANAC Secretariat
By Fax: 012 312 3122
18th February 2004
Attached is a letter from David Rasnick which recently appeared on the
web-site of the British Medical Journal.
In the letter Mr Rasnick claims to still be a member of the Presidential
AIDS Panel and makes a number of confusing and damaging allegations
the views of our President and the November 2003 Operational Plan.
At the forthcoming workshop of SANAC on February 27 & 28 please
could we be
1. What the relationship of the Presidential AIDS Panel is to
2. What the current status of the Presidential AIDS panel is?
3. Whether the allegations made by Rasnick are true, and, presuming
that they are not, whether SANAC can publicly refute them.
M J Heywood
Law and Human Rights sector
Here is Rasnick's Letter (Dated 23 November 2003) to the Online BMJ
Ed Rybicki chose not to refute any of the facts or arguments I have
presented regarding the lack of evidence for the contagious/HIV
hypothesis of AIDS. He merely recites the catechism of AIDS dogma. In
addition, he doesn't check his facts. He says, "And yet again, despite
its dissolution at least 18 months ago, [Rasnick] claims to be 'Member
of the Presidential AIDS Advisory Panel of South Africa'".
I am indeed still a member of the Presidential AIDS Advisory Panel
because it has not been disbanded. Just weeks ago, in fact, president
Mbeki said publicly that he is still waiting on this very panel to
conclude its deliberations and present a report on its findings.
Prior to the recent Cabinet decision to make anti-HIV drugs available
throughout South Africa, on the eve of the 53rd Session of the World
Health Organization's Regional Committee for Africa convened in
Johannesburg, September, 2003, Mbeki posed these questions to the 37
Ministers of Health and delegates from 46 African countries: "Do we know
what is it that is killing the people of Africa? Do we have a good
sense of the health challenges facing them? And are we therefore in a
position to conceptualise strategies and advise African Heads of State
and Government on appropriate responses?"
The Cabinet's decision on the anti-HIV drugs was not the president's.
He has not changed his mind on those drugs. If Rybicki had read the
Cabinet's decision, he would have seen that inclusion of the anti-HIV
drugs was a minor component of the comprehensive plan to beef-up the
healthcare infrastructure throughout SA. However, this is not reported
in newspapers. Mbeki's government is using the hoopla around HIV drugs
to improve healthcare generally. One benefit of all the fuss around the
Cabinet's decision is that AIDS will most likely not be a campaign issue
in the upcoming national elections early next year. Mbeki's second term
in office will be very interesting.
David Rasnick, PhD
Member of the Presidential AIDS Advisory Panel
Competing interests: None declared
[END OF LETTER TO SANAC - BACK TO CONTENTS]
[END OF NEWSLETTER]