Quote of the week

Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.

L'Heureux-Dube and McLachlin JJ
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
1 December 2009

World Aids Day

Today is World Aids Day. In South Africa, perhaps more than anywhere else in the world, we may want to take a moment to ponder the significance of this day as South Africa now has more H.I.V.-infected people and annual AIDS deaths than any other in the world. As someone personally affected by HIV, this is an important issue for me. 

We may observe a moment of silence for the hundreds of thousands of people who have already died of AIDS related illnesses in South Africa. Many of them died needlessly because of the greed of pharmaceutical companies, the criminal neglect of some of our public health system officials and the madness that was then President Thabo Mbeki’s flirtation with AIDS denialism. With some notable exceptions, one must also decry the lack of leadership from many politicians across political party lines who through their actions, utterances or silence have contributed to the stigma and shame that still attach to HIV and prevent many South Africans from getting tested and treated for this manageable disease.

Ten years ago then President Thabo Mbeki first suggested that AIDS drugs could pose “a danger to health” in a speech to Parliament, setting the stage for the denialism and obfuscation to follow. This year, for the first time in ten years, World Aids day is not the depressing event filled with anger and frustration at all the wasted lives that we have become accustomed to over the previous ten years. Last month President Jacob Zuma made a ringing speech in which he rejected the absurdities of the Mbeki era and stated:

South Africans must know that they are at risk and must take informed decisions to reduce their vulnerability to infection or, if infected, to slow the advance of the disease. Most importantly, all South Africans need to know their H.I.V. status, and be informed of the treatment options available to them.

What we tend to forget is that we would not be where we are today if it was not for the Treatment Action Campaign (TAC) and for the Constitutional Court. The TAC took on Mbeki and his government at the height of Mbeki’s power. It played a brilliant and strategically astute role in challenging the government’s confusing, intellectually arrogant and destructive, and often heartless policies and actions on HIV.

Making use of a combination of political mobilisation and legal action, the TAC won a famous victory in the Constitutional Court. This forced the then Minister of Health to swallow her words – uttered live on the TV news – that she would refuse to obey a Constitutional Court order to provide ARV’s to HIV pregnant mothers to save their new born babies from HIV infection.

The Constitutional Court, arguably going further than it had in the Grootboom case, found that the government had acted unreasonably by restricting the provision of ARV’s to HIV pregnant mothers to a few pilot sites. The Court rejected all the arguments presented on behalf of the Minister (the same arguments which President Mbeki also peddled) regarding the efficacy and dangers of ARV’s and found that the government action was so unreasonable that it was acting unconstitutionally by preventing poor women from accessing life saving ARV’s  for their babies.

Shortly after this judgment was handed down I attended a workshop with members of the Department of Health to discuss the possibility of providing wider access to ARV’s to South Africans living with HIV. Two things struck me at that meeting: all the officials were terrified of Tshabalala-Msimang and all the officials were terrified that their HIV policies will be successfully challenged in the Constitutional Court.

Shortly afterwards the government announced that it would progressively roll our ARV’s to all who needed it. Without the TAC and without the potent judgment of the Constitutional Court, this would not have happened and many more people may have died needlessly. Some lawyers dismiss the social and economic rights (including the right of access to health care) enshrined in the Bill of Rights on the basis that the do not mean much and has little effect. But they forget that these rights have an effect not only in courts but also more broadly.

The TAC understood from the start that the right of access to health care in the Bill of Rights provided them with a tool through which it could mobilise civil society and the ANC alliance partners against Mbeki and his allies. They understood that social and economic rights battles should be waged strategically, both inside courtrooms and on the streets.

Much still has to be done to fix the HIV/AIDS mess. Many poor people and people in our prisons still die because they have no access to ARV’s. Some government officials still peddle the utterly counter productive ABC message of prevention instead of focusing on condom use and the difficulties experienced in our patriarchal culture by many vulnerable women in trying to protect themselves from infection. But at least something is being done.

Meanwhile, I can only hope that former President Thabo Mbeki (for once) takes advice from Zwelenzima Vavi and apologises for the way in which his government dealt with HIV. Who knows, an apology might even enhance his reputation, which must surely be at rock bottom in South Africa at the moment.

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