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This commentary describes and analyses the decision of the Constitutional Court of South Africa in Minister of Health and Others v Treatment Action Campaign and Others where the South African government was found to have violated the right of access to health care under the Constitution. Section 27(1) guarantees everyone the right of access to health care services. Section 27(2) imposes on the state a duty to take reasonable measures within its available resources to achieve the progressive realisation of this right. To the extent that government was unreasonably delaying access to patently affordable life-saving therapy for the prevention of mother-to-child transmission of HIV to a class of persons that was largely vulnerable and indigent, it is submitted that the case was correctly decided. However, there is little doubt that the decision, and in particular the prescriptive nature of the remedy granted by the Court and its budgetary implications, do no sit easily with a traditional notion of separation of powers between the judiciary on the one hand, and the executive and Parliament on the other. At the same time, it must be accepted that the remedy and its budgetary implications are an inevitable consequence of the inclusion of justiciable socio-economic rights in the Bill of Rights. The principles that were applied by the Court in determining the case were largely drawn from jurisprudence developed by organs under treaty bodies, and in particular the Committee on Economic, Social and Cultural Rights.
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