On 14 December 2001, the High Court in Pretoria ordered the government of South Africa to supply Nevirapine, a drug which prevents the transmission of HIV at birth, to pregnant women infected with HIV and their new-born babies in public health facilities to which the government’s program for the prevention of mother-to-child transmission of HIV had not yet been extended and where (1) the attending doctor considered it medically indicated and (2) where the mother concerned had been appropriately tested and counselled. The Government applied for leave to appeal against the order. On 11 March 2002, the High Court held that some of the provisions of the order (the “interim execution order”) should be implemented pending the final determination of the appeal. On 25 March 2002, the government applied to the High Court for leave to appeal against the interim execution order. The application was refused. On 27 March 2002, the government applied to the Constitutional Court of South Africa for leave to appeal against the orders of both 11 March and 25 March 2002.
Decision and Reasoning
The Constitutional Court examined whether the interim execution order was appealable. Section 167(6) of the Constitution provides that an appeal is allowed to the Constitutional Court if it is in the interests of justice and if the decision is on a constitutional matter. In the circumstances, the Court held that the interim execution order constituted a decision on a constitutional matter. However, the Court found that the effect of granting leave to appeal in such a case would defeat the purpose of the interim execution order. The Court held that it would not be in the interests of justice to grant leave to appeal against an interim order of execution unless the Government could show that irreparable harm would result if the interim appeal were not to be granted. If the Government could show irreparable harm, that irreparable harm would also have to be weighed against any irreparable harm that the respondents may suffer, were the interim execution order to be overturned.
In this case, the Court held that the implementation of the interim execution order would not result in irreversible harm to the Government. The cost of the drug itself was not an issue. The main harm alleged by the appellants lay in permitting attending doctors and superintendents to decide when Nevirapine could be administered. The Court concluded that the government had failed to show why it should not commence implementing the order of the High Court while pursuing its appeal against that order. It therefore refused the application for leave to appeal.