This issue of the ALQ focuses on the access to socio-economic rights in the context of HIV and AIDS. the various articles in this issue examine the extent to which various socio-economic rights are accessible and realisable, and thus, provide access to ‘the basic necessities of life’ for the ones most vulnerable and marginalised, and for people living with, and affected by, HIV and AIDS. The meaning and concept of socio-economic rights, the judicial enforcement of socio-economic rights, and the interrelation of socio-economic rights and civil and political rights, as well as refugee’s exclusion from accessing social assistance, poor peoples’ access to healthcare, the dilemma of ‘choice’ between ARV and social assistance, and prisoners’ lack of access to treatment are some of the issues explored in this edition.
Realising Socio-Economic Rights in South Africa:
A demand for
After a legacy of colonialism and Apartheid, South Africa, in 1994, became a democratic
nation in which all its citizens were granted the right to participate in political life. The South
African Constitution has been labelled as one of the most progressive, transformative and
gender sensitive pieces of legislation in the world.
It enshrines the rights guaranteed to all,
including political and civil rights and socioeconomic
rights. All of these rights are
inter-related and mutually supporting.
Affording socio-economic rights to all, enables
people to enjoy the other rights enshrined in
the Bill of Rights, Chapter 2 of the Constitution.1
In recent years, human rights bodies, like
the United Nations, have stressed the need for
the protection of socio-economic rights,
especially for vulnerable groups, like women
and children. Democracy and human rights,
though distinct, are closely interlinked.
Democracy, as a human right in itself,
operates optimally when other human rights
are respected, such as socio-economic rights.
Democratic processes within a country can,
arguably, suffer major setbacks when democracy
falls short of their citizen’s expectations,
particularly in delivering development and
alleviating poverty. For the purposes of this
article, I will concentrate on unpacking the
concept of socio-economic rights as provided
for in South Africa’s Constitution, and,
thereafter, I will look briefly at Section 27(1)
of the Constitution in relation to the right to
have access to social security for people
living with HIV and AIDS.
So, what does the term ‘socio-economic
rights’ mean? In its most elementary
meaning, socio-economic rights ‘create
entitlements to material conditions for human
welfare – they are rights to things such as
food, shelter, water, health care services etc’
[Brand, 2005:3]2 Some of the socio-economic
rights, contained in the Constitution3, are the
right to a safe and healthy environment
(Section 24); the right not to be deprived of
property (Section 25); the right to have access
to adequate housing (Section 26); the right to
have access to healthcare, sufficient food,
water and social security (Section 27);
children’s socio-economic rights (Section
28); the right to basic education (Section 29);
and the right of everyone who is detained,
including every sentenced prisoner, to be
provided with adequate accommodation,
nutrition, reading material and medical
treatment (Section 35(2)(e)).
IMPOSING DUTIES AND
ENTITLEMENTS ON THE STATE
According to Section 2 of the
Constitution, the constitution imposes a
duty on the state to fulfil all the obligations
contained in the Constitution. This
inevitably means that socio-economic rights
form part of the obligations placed on the
aLQ – March 2006 1
A Publication of the AIDS Legal Network March 2006
Suite 6F, Waverley Business
Park, Mowbray, 7700
PO Box 13834, Mowbray 7705,
Cape Town, South Africa
Tel: +27 21 447-8435
Fax: +27 21 447-9946
In this issue: 1 Realising Socio-Economic Rights in South Africa: A
demand for constitutional challenges? 2 Editorial 8 Medical parole:
Prisoners’ means to access anti-retroviral treatment? 11 Socio-
Economic Rights versus Civil and Political Rights 15 Refugees and
Disability Grants: Should the most vulnerable be excluded?
18 Realising the right of access to healthcare for poor people living
with HIV and AIDS 23 Lusikisiki: A model of best practice 28 ARVs
versus Social Grants: The Dilemma of the Poor 31 Home-Based Care:
Realities and challenges 33 Provincial view 37 Regional view
42 Comment 47 Khabzela: The life and times of a South African
aLQ – March 2006 2 Editorial
A society must seek to ensure that the basic
necessities of life are accessible to all if it is to be a
society in which human dignity, freedom and
equality are foundational. [Judgement in Khosa v
The Department of Social Development, 2003]
It is the very access to ‘the basic necessities of life’
for all that would define an adequate response to, and
management of, the HIV and AIDS pandemic. Instead,
inequalities, poverty, unemployment and destitution
due to, and in the context of, HIV and AIDS seem to
be ever-increasing; access to socio-economic rights
remains limited due to ‘available resources’, and the
constitutional guarantee to enjoy all rights and
freedoms seems to remain but a dream. The ones
most vulnerable and in need of access to ‘the basic
necessities of life’ are the ones who often remain
excluded and, thus, the ones who are increasingly
impacted and affected by the pandemic.
It is within this context of the correlation of poverty
and the HIV and AIDS pandemic that this issue of the
ALQ focuses on the access to socio-economic rights
in the context of HIV and AIDS. The various
articles in this issue examine the extent to which various
socio-economic rights are accessible and realisable, and,
thus, provide access to ‘the basic necessities of life’ for
the ones most vulnerable and marginalised, and for
people living with, and affected by, HIV and AIDS. The
meaning and concept of socio-economic rights, the
judicial enforcement of socio-economic rights, and the
interrelation of socio-economic rights and civil and
political rights, as well as refugee’s exclusion from
accessing social assistance, poor people’s access to
healthcare, the dilemma of ‘choice’ between ARV and
social assistance, and prisoners’ lack of access to
treatment are some of the issues explored in this
edition. This issue also includes a discussion on the
challenges of home-based care volunteers, as well as
an introduction to ‘Khabzela’. The integral features of
the ALQ introduce HIV and AIDS realities and
challenges from Malawi, and the experiences of
Nkomazi, a rural community east of Nelspruit,
Mpumalanga, trying to respond to the realities and
challenges of the pandemic.
In this issue, Urvarshi Rajcoomar explores the
meaning and concept of socio-economic rights, as
provided for in the Constitution, and the role and
competency of the judiciary in enforcing socioeconomic
rights in South Africa. Analysing various
examples of judicial enforcement of socio-economic
rights and examining the extent to which access to
social security can be realised by people living with
HIV and AIDS, she argues that more constitutional
challenges are needed so as to ensure that people
who are poor and in need are no longer excluded from
access to, and realisation of, socio-economic rights.
Recognising the inability of the DCS to provide
anti-retroviral treatment (ART) to prisoners, Lukas
Muntingh raises the question whether or not medical
parole could be a means for prisoners to access ART.
Analysing legislative provisions in relation to medical
parole and prisoners’ right of access to healthcare, he
argues that medical parole provisions are not there to
address shortcomings in the prison system and, thus,
the state has an inescapable duty to provide
qualifying prisoners with access to ART, without
compromising their health further.
The interrelation of socio-economic rights and civil
and political rights is explored by Shawn Hattingh.
Exploring the differences between these rights, he
raises the question as to whether or not civil and
political rights can be enjoyed, if there is limited
access to socio-economic rights and argues that true
equality cannot be achieved without the full
recognition, realisation and enjoyment of civil, political
and socio-economic rights.
Acknowledging the fact that refugees living with a
disability are excluded from accessing social assistance,
Fritz Gaerdes raises the question whether or not the
exclusion of the most vulnerable is justifiable. He
examines various constitutional provisions, current and
new legislative provisions, as well as state obligation in
terms of international law, and argues that the
continuous exclusion of refugees living with a disability
from accessing the Disability Grant is not only
morally and ethically unjustifiable, but may also be
unconstitutional and, thus, challengeable.
The realisation of the right of access to healthcare
is argued to be one of the pre-requisite for an
adequate response to, and management of, the HIV
and AIDS pandemic. Bryge Wachipa discusses the
implications of judicial enforcements of the right to
access healthcare and argues, that while litigation is
an important tool to realise socio-economic rights, it
does not afford adequate access to healthcare for the
poor and most vulnerable people living with HIV
The anti-retroviral therapy programme in Lusikisiki
continued on page 4
state to fulfil. Furthermore, Section 7(2) speaks of the state
respecting, protecting, promoting and fulfilling the rights as
contained in the Bill of Rights. It is imperative that, when assessing
what duties and entitlements are imposed on the state, one must look
at the nature of the right in question.
It is submitted that socio-economic rights can be classified into
Group 1 – the ‘qualified socio-economic rights’ impose a positive
duty on the state, and are commonly identified as ‘access’ rights.
These rights place a positive duty on the state to ‘take reasonable steps
within its available resources, to achieve their progressive realisation’.
Examples of qualified socio-economic rights are everyone’s right to
have ‘access’ to adequate housing (Section 26(1)), and everyone’s right
to have ‘access’ to healthcare, sufficient food, water and social
security (Section 27(1)). The positive duty imposed on the state is
expressly stated in Section 26(2) and Section 27(2) – the state must
take reasonable legislative and other measures, within its available
resources, to achieve the progressive realisation of each of these rights.
Group 2 – the ‘basic socio-economic rights’ 4 are neither
formulated as ‘access’ rights, nor are they subjected to the
qualifications of ‘reasonableness’, ‘available resources’ and
‘progressive realisation’.5 These rights include the right to basic
education, including adult basic education (Section 29(1)(a)), and
every child’s right to basic nutrition, shelter, health care services and
social services (Section 28(1)(c)).
Group 3 – according to Brand [2005:4] 6,
These rights are formulated as prohibitions of certain forms of
conduct, rather than rights to particular things e.g. S26 (3)
prohibits arbitrary evictions and S 27(3) prohibits the refusal of
emergency treatment. These 2 rights are also not explicitly
subjected to any of the special qualifications that are typically
attached to ‘qualified socio-economic rights’.
THE JUDICIAL ENFORCEMENT OF SOCIO–
ECONOMIC RIGHTS IN SOUTH AFRICA
We live in a society in which there are great disparities of wealth.
Millions of people are living in deplorable conditions and in great
poverty. There is a high level of unemployment, inadequate social
security, and many do not have access to clean water or to adequate
health services. These conditions already existed, when the South
African Constitution was adopted, and a commitment to address them,
and to transform society, so that there will be human dignity, freedom
and equality, lies at the heart of South Africa’s new constitutional
order. However, for as long as these conditions continue to exist, this
aspiration will have a hollow ring.7
One might ask how socio-economic rights
can be transformed into legally enforceable
entitlements that advance social justice. It has
been said that the ultimate test of giving
constitutional recognition to these rights is
whether or not they result in real improvements
in the quality of life for all.8 Debates on the
justiciability9 of socio-economic rights have
been raging on for years between many legal
academics and was effectively laid to rest in
Government of the Republic of South Africa
and others v Grootboom 10.
The first socio-economic rights case to
come before the Constitutional Court was
Soobramoney v Minister of Health, KwaZulu
Natal 11. Even though it did not settle the
debate on the justiciability of socio-economic
rights in South Africa, it was fundamental in
setting the stage for engaging the judiciary,
whose primary role is to be the protector and
enforcer of all rights. The applicant in this
case, Mr. Soobramoney, suffered from
chronic renal failure, which required, for his
survival, regular kidney dialysis treatment.
He did not have the resources to obtain
treatment from private sources and
approached a state hospital for the provision
of the treatment, but was refused. The rationale
for refusing Mr. Soobramoney treatment was
based on the fact that dialysis treatment was
expensive, and resources within that hospital
were limited. Therefore, a policy to limit
the number of patients who would qualify
for dialysis treatment was developed by
Mr. Soobramoney, after being unsuccessful
at the Durban and Coast Local Division of the
High Court, approached the Constitutional
Court on the basis that his right to receive
emergency medical treatment (Section 27(3))
was being infringed. The Court stated that it
would ‘be slow to interfere with rational
decisions taken in good faith by the political
organs and medical authorities whose
responsibility it is to deal with such matters’ 12.
Accordingly, the Constitutional Court
declined to overturn the decision to refuse
treatment to Soobramoney.
It is worth noting that the Court, in this
case, was reluctant to interfere in the
decisions made by political organs and did
not want to trespass into the territory of the
resource allocation. This stance signalled the
Constitutional Court’s reluctance of undertaking
its new mandate of being a watchdog
to socio-economic rights in South Africa.
However, in Government of the Republic aLQ – March 2006 3
A demand for constitutional challenges?
This stance signalled the
reluctance of undertaking its
new mandate of being a
watchdog to socio-economic
rights in South Africa.
is introduced by Hermann Reuter. Sharing
experiences of the programme and exploring the
arguments of clinic-based ARVs versus ‘down referral’,
he argues that it is through the approach of decentralising
initiation of ARVs, that the uptake can be increased
rapidly and the loss to follow-up be reduced.
In the context of high levels of poverty,
unemployment and HIV prevalence, Susie Clark
introduces the dichotomy of social assistance and
anti-retroviral treatment. Considering that the
Disability Grant is often the only household income,
she argues that while access to ARVs provides the
possibility for a longer life, it presents a dilemma,
since people living with HIV might have to choose
between accessing social assistance and, thus,
provide ‘income’, or accessing treatment and,
thus, potentially loosing the only form of income of
Nkomazi, a rural community east of Nelspruit,
Mpumalanga, is introduced by Heather McKillan. She
examines various realities and challenges of Nkomazi
– a community, greatly affected by not only high rates
of unemployment, poverty, inequalities and abuse,
but also by high HIV infection rates – and argues that
despite the harsh and ‘morbid’ realities of Nkomazi,
there is hope due to the capacity of the human spirit
to overcome this.
Faustace Chirwa introduces HIV and AIDS
realities and challenges in Malawi. Providing an
overview of the pandemic and analysing the successes
and obstacles of treatment initiatives, she argues that
there is a ‘light at the end of the tunnel’, despite the
lack of innovative interventions aimed at speedy
sexual behaviour change, the challenges of ‘fake
drugs’, and cultural practices that exacerbate the
spread of HIV and AIDS.
Looking at the repercussions of armed conflicts,
Kabir Bavikatte is ‘making a point’ about HIV and
AIDS amongst conflict affected and displaced
populations. He explores the direct and indirect
effects of conflict on the spread of HIV and argues
that while preventive measures tend to be limited in
conflict situations, a lot more could, and should, be
done to effectively combat the scale of HIV infection
amongst conflict affected populations.
Examining the meaning and concept of socioeconomic
rights, their judicial enforcement, and the
various realities of vulnerable, poor and marginalised
people accessing socio-economic rights, it seems
that while the continuous lack of adequate access
might not be necessarily morally and ethically
justifiable, it is, however, to an extent, justifiable
within the constitutional realm. The recurring argument
seems to be that the constitutional provisions of ‘access
to’, as compared to ‘the right to’, socio-economic rights,
and of ‘progressive realisation’, which is defined by
‘available resources’, and not by the need to ‘basic
necessities of life’, will ultimately continue to define the
extent to which the most vulnerable, marginalised and in
need are in the position to access, claim and enjoy socioeconomic
rights – and this even with the role and
competency of the judiciary to enforce the access to,
and realisation of, socio-economic rights for all. Thus,
despite the recognition that a society based on principles
of human dignity, freedom and equality needs to ‘seek to
ensure that the basic necessities of life are accessible to
all’, the most vulnerable, poor and marginalised people of
society will continue to be excluded from accessing the
very same ‘basic necessities of life’.
If we are to agree that fundamental principles of
human dignity, freedom and equality can only be
enjoyed to the extent to which access to socioeconomic
rights are realisable, then we need to agree
that it is of paramount importance for people, who are
vulnerable, poor, marginalised and/or living with HIV
and AIDS, to not only access, but enjoy socioeconomic
rights, so as to be in the position to equally
enjoy the fundamental principles of human dignity,
freedom and equality. Thus, it is in the context of
poverty, vulnerability, marginalisation and ‘the choices
that poor people do not have that the real content
and meaning of socio-economic rights must
be understood’ [Taylor, 2002].
However, if we are to address the limited access to
socio-economic rights for especially the poor, vulnerable
and marginalised members of society, we need to bear in
mind, that access to socio-economic rights from a
resource point of view, does not, and cannot, facilitate
access to ‘basic necessities of life’ in an environment free
of stigma and discrimination based on one’s sex, gender,
sexuality and/or HIV status. As long as ‘access’ is
defined by both, available resources and discriminatory
attitudes and practices, access will remain limited for the
‘other’, irrespective of adequate resources affording
access to ‘the basic necessities of life’. Hence, only as
and when both, socio-economic rights and civil and
political rights are accessible and enjoyable by everyone,
can an enabling environment be created in which access
to ‘the basic necessities of life’ is available to all,
irrespective of class, race, gender, sex, sexuality and/or
HIV status. Until then, the status quo remains and human
dignity, freedom and equality will be denied to many…
4 aLQ – March 2006 Editorial
continued from page 2
of South Africa and others v Grootboom 13, the Court authoritatively
settled the debate on the justiciability of socio-economic rights in
South Africa and inquired into the reasonableness of a Provincial
Housing Plan. Irene Grootboom initially lived in Wallacedene, an
informal squatter settlement, in the municipal area of Oostenberg. The
residents of Wallacedene lived in severe poverty, without any basic
services, such as water, sewage or refuse removal. A group of about
900 people, including Irene Grootboom, began to move from
Wallacedene onto adjacent, vacant, privately owned land that had been
ear-marked for low-cost housing. The private landowner obtained an
eviction order and the sheriff was ordered to dismantle and remove any
structures remaining on the land.
The evicted community had nowhere to go. Since they had lost
their former sites in Wallacedene, they moved onto the Wallacedene
sports field and tried to erect temporary structures. With legal
assistance, the community formally notified the municipality of their
situation and demanded that the municipality meet its constitutional
obligation to provide temporary accommodation. Due to an
unsatisfactory response from the municipality, the community – under
the name of ‘Irene Grootboom and 900 others’ – launched an urgent
application in the Cape High Court. The Grootboom community based
their case on two constitutional provisions:
Section 26 of the Constitution provides that everyone has the
right to have access to adequate housing. It obliges the state to
take reasonable measures, within its available resources, to make
sure that this right is realised progressively.
Section 28(1)(c) says that children have the right to shelter.
The Cape High Court rejected the first argument. It said that
government’s housing programme was reasonable and, thus, fulfilled
the requirements of the Constitution. In terms of the second argument,
the Court said that parents are primarily responsible to provide shelter
for their children. If, however, they are unable to do this, Section
28(1)(c) of the Constitution places an obligation on the state to do so.
Further, the Court found that the parents should be able to live with
their children in the shelter, as it was not in the best interests of
children to be separated from their families. Government took the
decision of the High Court on appeal to the Constitutional Court. The
Constitutional Court affirmed that national government bears the
overall responsibility for ensuring that the state complies with its
Section 26 obligations. It further found that:
The current housing programme fell short of the state’s
obligation to provide relief to people in desperate need. It said that
a reasonable part of the national housing budget should be devoted
to providing such relief. If this was not
done, the state’s housing programme
could not be considered reasonable for
the purposes of Section 26(2).
The state’s direct obligation would
apply primarily when children were
removed from their families, orphaned
or abandoned. 14
The Grootboom case is an important
judicial precedent, because it sets out the test
for ‘reasonableness’, which will be used as a
yardstick in the determination of cases
similar in nature. The test of reasonableness
requires the adoption of ‘reasonable
legislative and other measures’. The Court
…mere legislation is not enough. The
state is obliged to act to achieve the
intended result, and the legislative
measures will invariably have to be
supported by appropriate, well directed
policies and programs implemented by
the Executive. These policies and
programs must be reasonable both in
there implementation… An otherwise
reasonable program that is not implemented
reasonably will not constitute
compliance with the State’s obligations. 15
The test requires that a programme,
implemented to realise a socio-economic
right, must be ‘comprehensive’, ‘coherent’,
‘balanced’ and ‘flexible’. The Court states
further that ‘a programme that excludes a
significant sector of society cannot be said to
be reasonable’ and that
Those whose rights are the most urgent
and whose ability to enjoy all rights is
therefore most in peril, must not be
ignored by the measures aimed at
achieving realisation of the right… if
the measures, though statistically
successful, fail to respond to the needs
of those most desperate, they may not
pass the test’. 16
The third case on socio-economic rights
to come before the Constitutional Court was
that of Treatment Action Campaign v Minister
of Health 17. The TAC case, as it is commonly
known, dealt with the fact that government
restricted the availability of Nevirapine, an
anti-retroviral drug which reduces the incidence
of mother-to-child transmission of HIV,
to two sites in each province. This excluded a
significant and vulnerable sector of society –
pregnant women infected with HIV and their
children, living outside the designated sites.
The issue before the Court was whether or not aLQ – March 2006 5
A demand for constitutional challenges?
The Grootboom case is an
important judicial precedent,
because it sets out the test for
‘reasonableness’, which will be
used as a yardstick in the
determination of cases
similar in nature.
their basic needs. A society must seek to ensure that the basic
necessities of life are accessible to all if it is to be a society in
which human dignity, freedom and equality are foundational. 20
It is submitted that in 2005, 5,2 million people were living with
HIV and AIDS. There were approximately 530 000 new HIV
infections and an estimated 340 000 AIDS deaths. Due to the increasing
number of AIDS deaths, approximately 1,37 million children are
orphaned21. Poverty and the HIV and AIDS pandemic coexist in a
cyclic relationship. As the HIV and AIDS pandemic spirals out of
control, it has a profound impact on the pockets of many individuals,
families and communities. Liebenberg [2001:235] argues:
The poverty implications include increased health costs, a fall in
productivity due to the demands on household members to care
for ill members, the illness and death of breadwinners and an
increase in the number of AIDS orphans. Children and workingage
adults are the groups who will be most affected by the
People living with HIV and AIDS are entitled to access social
assistance grants. However, this is subject to meeting the qualifying
criteria and to passing the application of a means test. When looking at
social assistance grants, one needs to be mindful of the fact that only
certain categories of individuals qualify to receive social assistance
grants, including children below the age of 14 years22; the elderly23;
people with severe mental and physical disabilities24; people in extreme
poverty25; and individuals that care for children who are vulnerable
and/or orphaned26. It is worth noting that even within these categories,
there are groups of people that cannot access social assistance grants,
such as poor children above the age of 14 years; persons with chronic
illnesses or moderate illnesses, including people living with HIV
whose CD4 count is above 200, but who are too ill to work or carry out
essential activities; child-headed households; and street children.
In the context of HIV and AIDS, the current practice of the
Department of Social Development is to allocate the Disability Grant
and the Care Dependency Grant to individuals with CD4 counts of
below 200. The Social Assistance Act (No 13 of 2004) neither deals
with this aspect nor is it regulated by the Regulation (R 813) under the
Social Assistance Act of 1992. The guidelines used, or the reasoning
that is adopted, in allocating these grants to people living with HIV and
AIDS, with CD4 counts below 200, is still not clear.
Excluding certain groups of individuals, such as poor children
above the age of 14 years, people living with HIV, with CD4 counts of
more than 200, and people with chronic or moderate illnesses, from
accessing any one of the grants mentioned above, raises serious
questions about reasonableness. Perhaps, the answer to this question
lies in the case of Khosa v The Minister of Social Welfare and
the women and children falling outside the
designated sites had been unjustifiably
The Court directed that Nevirapine be
made available at
…all public hospitals and clinics when, in
the judgement of the attending medical
practitioner, the drug is medically
indicated, which shall if necessary
include that the mother has been
appropriately tested and counselled. 18
This judgement placed an obligation on
the state to take reasonable measures, to
extend testing and counselling facilities to
the public health sector, in relation to the
administration of Nevirapine. Perhaps, the
most significant aspect of the TAC
judgement was the stance the Constitutional
Court took regarding government’s argument
that Courts are restricted by the separation of
powers doctrine, which constrained their
mandate to issuing declaratory orders only in
the adjudication of socio-economic rights
cases. The Constitutional Court strongly
affirmed the notion that the separation of
powers, as contained in the Constitution, is
not absolute; ‘this does not mean…that
courts cannot and should not make orders
that have an impact on policy’ 19.
This judgement has advanced social
justice, as all pregnant women living with
HIV are able to claim, as a matter of right,
access to Nevirapine at any public health
facility in South Africa.
Both the Grootboom and TAC cases have,
through judicial enforcement, realised the
socio-economic rights of a sector in society,
by including them in a state led socioeconomic
ACCESS TO THE DISABILITY
GRANT AND THE CARE
DEPENDENCY GRANT FOR
PEOPLE LIVING WITH HIV AND
Access to social security is a constitutionally
protected right under Section 27(1)(c). The
sole purpose for the state to provide social
assistance to people in need is to combat
poverty and, as stated by the Constitutional
…the right of access to social security,
including social assistance, for those
unable to support themselves and their
dependants is entrenched because as a
society we value human beings and
want to ensure that people are afforded 6 aLQ – March 2006 Socio-Economic Rights
A demand for constitutional challenges?
The Constitutional Court strongly
affirmed the notion that the
separation of powers, as
contained in the Constitution,
is not absolute
Population Development27, where the Court held that
It is necessary to differentiate between people and groups of
people in society by classification in order for the state to
allocate rights, duties, immunities, privileges, benefits or even
disadvantages and to provide efficient and effective delivery of
social services. However, those classifications must satisfy the
constitutional requirement of ‘reasonableness’ in Section
27(2). In this case, the state has chosen to differentiate
between citizens and non-citizens. That differentiation, if it is
to pass constitutional muster, must not be arbitrary or
irrational nor must it manifest a naked preference. There must
be a rational connection between that differentiating law and
the legitimate government purpose it is designed to achieve. A
differentiating law or action, which does not meet these
standards, will be in violation of Section 9(1) and Section
27(2) of the Constitution.28
There can be no doubt that vulnerable groups in society, such as
people living with HIV and AIDS, with CD4 counts above 200, or poor
children over the age of 14 years, or child-headed households, who
have fallen through the gaps of the social security system, are in need
of constitutional protection. This demands constitutional challenge.
While this article raised the importance of realising socioeconomic
rights in South Africa, it also highlighted the role and
competency of the judiciary in enforcing socio-economic rights.
According to Pieterse [2004:416],
The remains of South Africa’s pre-constitutional legal
culture…continues to blind South African legal scholars and
judges alike to the transformative possibilities inherent in the
institution of the Constitutional Court which, despite
unequivocally affirming the justiciability of socio-economic
rights and the judiciaries’ competence to enforce them, remain
peculiarly hesitant to showcase the full extent of this competence.
The judgements of Grootboom, TAC and Soobramoney are
welcomed and applauded, as they realised the rights of groups of
people. However, the judicial precedents of Grootboom and TAC to
achieve social justice on a wide scale have not been optimally used.
There are still people living without homes, despite the victory of
Grootboom, people are still being denied access to healthcare services,
and people are still living in extreme poverty.
South Africa is celebrating the 10th Anniversary of its Constitution.
Ironically, in the last 10 years only 20 cases were adjudicated on in the
Constitutional Court and of those 20, only 3 were brought by the poor
to access socio-economic rights. So, I ask myself where we have gone
wrong. Perhaps, we need to resurrect the activists in all of us, to realise
the foundational principles entrenched in our Constitution. When the
foundational principles in our Constitution are undermined by our
inability to act for the ones in desperate need, then faith and trust in our
Constitution will turn to cynicism – and then all will be lost.
Brand, D. 2005. Socio-Economic Rights in South Africa. Pretoria:
Pretoria University Law Press.
Pieterse, M. 2004. ‘Coming to terms with Judicial Enforcement of
Socio-Economic Rights’. In SAJHR, 20, 416.
Liebenberg, S. 2001. ‘The Right to Social
Assistance: The Implications of Grootboom
for Policy Reform in South Africa’.
In SAJHR, 17, 233.
1. Government of the Republic of South Africa and others v Grootboom
2001 (1) SA 46 (CC), para 22.
2. Page 3 of the electronic version. (www.chr.up.ac.za/centre_
3. The Constitution of South Africa, Act 108 of 1996.
4. Liebenberg, S. 2003. ‘The Interpretation of Socio-Economic Rights’.
In: Chaskalson, M et. al. Constitutional Law of South Africa. 2nd
Edition, Chapter 33, p. 5.
5. Brand, D. 2005. Socio-Economic Rights in South Africa. Pretoria:
Pretoria University Law Press. Chapter 1.
6. Page 3 of the electronic version. (www.chr.up.ac.za/centre_
7. Soobramoney v Minster of Health, KwaZulu Natal 1998 (1) SA 765
(CC), para 8.
8. Liebenberg, S. 2001. ‘The Right to Social Assistance: The
Implications of Grootboom for Policy Reform in South Africa’. In
SAJHR 17, 233.
9. Justiciability in its elementary meaning is the ‘extent to which a
matter is suitable for judicial determination’.
10. Government of the Republic of South Africa and others v
Grootboom 2001 (1) SA 46 (CC).
11. Soobramoney v Minister of Health, KwaZulu Natal 1998 (1) SA 765
12. Soobramoney v Minister of Health, KwaZulu Natal 1998 (1) SA 765
(CC), para 29.
13. Government of the Republic of South Africa and others v
Grootboom 2001 (1) SA 46 (CC).
14. Pillay, K., Manjoo, R. & Paulus, E. Oct 2002. Budget Brief No. 111:
The Grootboom Case and Women’s Housing Rights. Cape Town:
15. Government of the Republic of South Africa and others v
Grootboom 2001 (1) SA 46 (CC), para 42.
16. Government of the Republic of South Africa and others v
Grootboom 2001 (1) SA 46 (CC), para 42.
17. Treatment Action Campaign v Minister of Health 2002 (5) SA 721
18. Treatment Action Campaign v Minister of Health 2002 (5) SA 721
(CC), para 135(3)(c).
19. Treatment Action Campaign v Minister of Health 2002 (5) SA 721
(CC), para 98.
20. Khosa v The Minister of Social Welfare and Population Development
CCT 12/03, para 52.
21. Johnson, L. 2006. The Demographic Impact of HIV/AIDS in South
Africa – National Indicators 2004. ASSA.
22. The Child Support Grant.
23. The Old Age Pension.
24. The Disability Grant for adults and the Care Dependancy Grant for
25. The Social Relief of Distress Grant, which is only payable for a
period 6 months.
26. The Foster Care Grant.
27. Khosa and others v Minister of Social Development and others
2004(6) SA 505 (CC). CCT 12/03.
28. Khosa v The Minister of Social Welfare and Population Development
CCT 12/03, para. 57.
aLQ – March 2006 7
A demand for constitutional challenges?
Urvarshi Rajcoomar is the National
Coordinator of the HIV/AIDS Project at
Lawyers for Human Rights. For more
information and/or comments, please
contact her on +27 33 342 1130 or at
Imprisonment must be of such a nature
that only those rights that are absolutely
necessary to curtail, in order to enforce the
sentence of the Court, may be limited. Any
limitation of rights needs to pass the test of
Section 36 of the Constitution1, which
requires in Sub-section 1 the following:
The rights in the Bill of Rights may be
limited only in terms of law of general
application to the extent that the
limitation is reasonable and justifiable
in an open and democratic society
based on human dignity, equality and
freedom, taking into account all
relevant factors, including –
a. the nature of the right;
b. the importance of the purpose of the
c. the nature and extent of the
d. the relation between the limitation
and its purpose; and
e. less restrictive means to achieve the
The rights of prisoners and their equality,
save for the limitation imposed by their
imprisonment itself, have been adequately
dealt with in the ALQ (June 2005) by Raga2,
and it is not necessary to repeat the arguments
here, save to say that there is sufficient
international and domestic case law to
support this position.
On 6 September 2005, the Department of
Correctional Services (DCS) reported to
the Portfolio Committee on Correctional
Services on its ‘HIV/AIDS Policy for
Offenders’3. With regard to access to antiretroviral
treatment (ART), the DCS reported
that it was not accredited to provide antiretroviral
treatment to prisoners. Two further
challenges were noted, namely that the ART roll-out centres were
located off site, at Department of Health facilities, and that this
created security concerns as a result of staff shortages and the logistical
obstacles it created, for example transport. In essence, the DCS
explained that whilst it would like to provide access to ART, it lacked
the resources, staff and infrastructure, to do so. The problem is, thus,
primarily a practical one. Since the DCS is not accredited to provide
ART in prisons, the solution must, therefore, be sought in how to bring
prisoners to roll-out centres.
One possible solution, which has been proffered by some, is to
utilise medical parole provisions of the Correctional Services Act (No
111 of 1998) to enable qualifying prisoners to access ART. At the
briefing by the Office of the Inspecting Judge of Prisons (OIJ) to the
Portfolio Committee on Correctional Services in March 2005, the OIJ
pleaded for a wider and more discretionary interpretation of the
medial parole conditions, as provided for in Section 79 of the Act.
Reference was made in particular to prisoners who are not dying, but
who require 24 hour care, special meals and assistance with basic
functions, suggesting that medical parole should be considered in such
cases. The OIJ did not make specific reference to ART.
This article examines the possibilities of this suggestion in an
expanded manner. Is medical parole an appropriate course of action to
enable prisoners who qualify for anti-retroviral therapy to access such
therapy? Is this suggestion legally possible? Is this a balanced
response, in terms of the rights of prisoners and society?
LEGISLATIVE AND POLICY FRAMEWORK
The legislative and policy provisions pertaining to medical care of
prisoners and medical parole provisions are dealt with in the following.
The Basic Principles for the Treatment of Prisoners provide that:
‘Prisoners shall have access to the health services available in the
country without discrimination on the grounds of their legal situation’.
Rule 22(1) of the UN Standard Minimum Rules for the Treatment of
Prisoners (UNSMR)5: ‘…the medical services should be organized in
close relationship to the general health administration of the
community or nation’. The UNSMR further provide in Rule 22(2) that
prisoners, who require specialist medical services, shall be referred to
such facilities within the prison system, and if not available, to a
civilian institution. The international instruments, therefore, require, as
a minimum, that the principle of non-discrimination be applied and,
therefore, the same quality of services available to the general
population needs to be available to prisoners.
8 aLQ – March 2006
Medical parole: Prisoners’
means to access
Medical parole: Prisoners’ means to
access anti-retroviral treatment?
The Correctional Services Act deals with healthcare, primarily in
Section 12, and requires the DCS ‘…to provide, within its available
resources, adequate health care services, based on the principles of
primary health care, in order to allow every prisoner to lead a healthy
life’. Section 12(3) provides for access to a private medical practitioner
at the expense of the prisoner. Furthermore, Section 73(2) provides for
the situation, where a prisoner, whose sentence has expired, but whose
release would, according to a medical officer
…be likely to result in his death or impairment of his or her health
or to be a source of infection to other, may be temporarily detained
until his or her release is authorized by the medical officer.
The DCS Policy on Management of HIV and AIDS for Offenders
(2005) is conspicuously silent on ART. The eleven page document only
goes as far as to state that care and support will be provided, as well as
that treatment will be given to prisoners infected with HIV and AIDS.
The DCS Comprehensive Programme on HIV/Aids for Offenders6
does, however, make reference to ART with regard to investigating the
possibilities for establishing anti-retroviral therapy sites within prisons,
and to further ensure compliance with the Department of Health
guidelines on ART.
Chapter 7 of the Correctional Services Act deals with releases from
prisons, placement on day parole, parole and correctional supervision.
The provisions in the Act are detailed and somewhat complicated as a
result of the different types of prison sentences that may be imposed.
It is not within the scope of this article to describe these here, suffice
to say that even parole boards have found the application of the
provisions complex and apparently confusing.7 Of particular relevance,
however, is the provision for placement under correctional supervision,
or release, on parole on medical grounds in Section 79:
Any person serving any sentence in a prison and who, based on
the written evidence of the medical practitioner treating that
person, is diagnosed as being in the final phase of any terminal
disease or condition may be considered for placement under
correctional supervision or on parole, by the Commissioner,
Correctional Supervision and Parole Board or the court, as the
case may be, to die a consolatory and dignified death.
It is notable that unsentenced prisoners are excluded from this
provision, as there is no sentence to be converted to parole, or
correctional supervision. The fact that a very substantial number of
prisoners spend months, if not years, awaiting trial, clearly presents a
problem in this regard, especially if the person cannot be released on
bail.8 Section 62(f) of the Criminal Procedures Act (No 51 of 1977)
does, however, make provisions for the accused to be placed under the
supervision of a probation officer or a correctional official. Section 79
also makes a blanket provision for any sentenced prisoner to benefit
from this provision; and the sentence length, offence, or type of
offender, has no bearing on the decision to be made by either the Court,
the Correctional Supervision and Parole Board (CSPB) or the
Commissioner, on the advice of a medical practitioner. Release on
medical grounds is also singular in purpose, namely to allow the
prisoner to die in the comfort of his or her home, and to be assisted by
his or her loved ones.
This discussion will deal with the use of medical parole, as
provided for in the Correctional Services Act,
for sentenced prisoners as a possible remedy
to facilitate access to ART. The question is
posed in response to the DCS’s admitted
inability, at this stage, to provide access to
such treatment. Denying prisoners the
opportunity to exercise the right of access to
treatment is clearly a violation of domestic
and international law, especially since nonincarcerated
citizens have access to the
treatment, in principle, under the Department
of Health’s Operational Plan for
Comprehensive HIV and Aids Care,
Management and Treatment for South Africa
(2003). The conclusion is, thus, that, due to
their legal status, prisoners are being
discriminated against with regards to access
The need to balance the right of prisoners
to adequate healthcare, on the one side, and
society’s expectation of punishment of
offenders and need for safety, on the other
side, lies at the heart of this issue. There is a
fear that if medical parole is used to facilitate
access to ART, dangerous offenders, suffering
from AIDS related illnesses, could be
released and, as a result of the therapy,
recover significantly enough to be able to
continue their criminal activities and to
re-victimise society. If arrested, the offender
would argue that keeping him or her in prison
is effectively a death sentence, as it would
interrupt the ART regimen. This would
challenge society’s expectations that
offenders should be punished, and that they
must serve their term of imprisonment.
aLQ – March 2006 9
There is a fear that if
medical parole is
offenders, could be
enough to be able
to continue their
criminal activities and
to re-victimise society.
Medical parole: Prisoners’ means to
access anti-retroviral treatment?
T M aLQ – March 2006
to develop such capacity and provide total
care. It is, therefore, deeply concerning that
there has only been a marginal increase in the
budgetary provisions of the Medium Term
Expenditure Framework (MTEF), as this
indicates no plans for the required major shift
in policy and expenditure.11 From 2006/7 to
2008/9, the provision for medical services to
prisoners will increase nominally by just
more than 5% per annum, whilst constituting
roughly 0.65% of the total budget, and
In conclusion, parole and medical parole
are not there to address the shortcomings of
the prison system. If this was the case, then
the DCS should have, in the first instance,
released all prisoners being held in conditions
that do not meet the minimum requirements
specified in the Act. As the situation now
stands, the state, through the DCS, has an
inescapable duty to provide qualifying
prisoners with access to ART in prison and in
a manner that will not compromise their
health any further.
1. The Constitution of South Africa, Act 108 of 1996.
2. Raga, U. 2005. ‘Prisoners have rights too…’. In ALQ, June 2005, pp.
3. PMG Minutes of the Portfolio Committee on Correctional Services,
6 September 2005. The minutes included a copy of a presentation on the
topic distributed by the DCS representatives.
4. PMG Minutes of the Portfolio Committee on Correctional Services,
15 March 2005.
5. Standard Minimum Rules for the Treatment of Prisoners, Adopted
by the First United Nations Congress on the Prevention of Crime and
the Treatment of Offenders, held at Geneva in 1955, and approved by
the Economic and Social Council by its resolutions 663 C (XXIV) of
31 July 1957 and 2076 (LXII) of 13 May 1977.
6. The document is undated and was received from DCS as a policy
document in 2006. Copy on file with author.
7. For a more detailed description of problems experienced in
one particular case (Motsemme H v Min of Correctional
Services), see CSPRI Newsletter No. 14, (http://www.easimail.co.za/
8. At the end of August 2005, there were nearly 21 000 awaiting trial
prisoners who had been in custody for longer than three months. Of this
group, 1528 had been in custody for longer than two years.
(Information supplied by the Office if the Inspecting Judge)
9. Correctional Services Act, Section 2(a and b)
10. Correctional Services Act, Section 8(5)
11. Estimates of National Expenditure, 2006/7, Vote 20 – Correctional
Services, p. 449.
The first question that needs to be answered is, whether or not the
Correctional Supervision and Parole Boards (CSPBs), Courts or
Commissioners are able to release a prisoner on medical parole to
access ART in terms of the provisions of the Act. The
powers and functions of the CSPBs, and also the purposes of parole,
are described, in great detail, in the Act. There is no indication that the
drafters envisaged that parole, and medical parole, could, or should be,
used as a means for sentenced prisoners to access services, or
resources, that the DCS is not able to provide. As noted above, the
purpose of medical parole is singular, namely to allow the prisoner
concerned to die a ‘consolatory and dignified death’. The purpose of
medical parole is not to enable the prisoner to receive treatment, recover
and lead a normal life. Unless the purpose of medical parole is
changed, by an amendment to the Act, there does not appear to be
justifiable grounds for using medical parole to access ART.
Secondly, does ART qualify as ‘specialist medical services’, as
described in the UNSMR (Rule 22), and if so, would it then oblige the
DCS to facilitate (logistically) prisoners’ access to such treatment?
ART has now attained a status of general care at policy level. However,
at the level of implementation, it remains specialised treatment with a
limited number of access points through the Department of Health
facilities, and with one prison facility that has been accredited, bearing
in mind that there are 240 prisons in South Africa. When regarded as a
specialist service, ART, undoubtedly, places a duty of care on the DCS
to facilitate logistically access to such specialist services. It still does
not, however, enable the use of medical parole, or any other release
mechanism, to access the service.
Thirdly, to release prisoners who are not dying, but require constant
care, may place an undue burden on their families, who may not have
the means, or training, to provide such care. In reality, a family may
just resent the release, a point made by the OIJ, but for different
reasons. Releasing prisoners to be placed with their families may also
separate prisoners from the proper medical services, provided by the
DCS, and place the prisoner in a situation that may adversely affect
them, as was envisaged in Section 73(2) of the Act.
The purpose of the correctional system is, firstly, to enforce the
sentences of the Courts and secondly, to detain all prisoners in safe
custody, whilst ensuring their human dignity9. In this sense, the DCS
has a total responsibility; it is alone responsible for prisoners and
cannot release prisoners, because it cannot provide adequate care. The
duty of care then remains with the DCS and it must, therefore,
establish the means to provide adequate care. For example, by 2008/9
the DCS will have recruited 8000 entry level employees to enable the
department to operate a seven-day week and abolish overtime. As a
result of the decision to operate a seven day week system, meals are
reportedly now served at times in compliance with the legislation.10 If
current capacity is lacking with regard to ART, then the DCS has a duty
10 Medical parole: Prisoners’ means to
access anti-retroviral treatment?
… the DCS has a total
responsibility; it is alone
responsible for prisoners and
cannot release prisoners, because
it cannot provide adequate care.
Lukas Muntingh is the Manger at
the Civil Society Prison Reform
Initiative (CSPRI) at the Community
Law Centre at the University of the
Western Cape. For more information
and/or comments, please contact him
at +27 21 797 9491 or at
These rights include both socio-economic rights – such as the right to
access housing, healthcare, food, water, social security and education –
and civil and political rights – such as the right to equality and nondiscrimination,
to human dignity, to life, to security, to freedom of
expression, and to privacy. The philosophical aim of guaranteeing these
rights is, arguably, to ensure that the historical levels of inequality, both in
political and material terms, are alleviated and that the lives of all people,
including people living with HIV and AIDS, are improved.
It is within that context, that this article explores the correlation
between civil and political rights and socio-economic rights, and
raises the question whether or not people’s civil and political rights,
including the right to equality, can be fully enjoyed if their access to
socio-economic rights is limited. In order to do this, the article
examines the differences between socio-economic rights and civil and
political rights in the context of the South African Constitution. In
addition, it explores the extent to which people are in the position to
access socio-economic rights, and how this, in turn, impacts on the
extent to which the right to dignity, the right to equality, and the right
to life can be realised.
CIVIL AND POLITICAL RIGHTS AND SOCIOECONOMIC
RIGHTS WITHIN THE SOUTH
Most constitutions, throughout the world, tend to only define civil
and political rights, and not socio-economic rights, as fundamental
human rights.2 This is largely justified by the belief that civil and
political rights are self-executing, that they can be immediately
realised, and that their fulfilment does not place a significant material
burden on the state. Part of this justification, conversely, also includes
the notion that socio-economic rights cannot be realised immediately,
because of the costs involved for the state. As a result, most states
explicitly hold the view that socio-economic issues and rights, at
best, belong in the realm of politics and not within legal systems3.
In such a view, socio-economic rights are defined as being
subordinate to, and of less importance than, civil and political
rights. Most states, therefore, do not wish or
believe that it is necessary to define socioeconomic
rights as fundamental human
rights2 within their constitutions.
The South African Constitution, however,
takes a different approach, in that it enshrines
both civil and political rights and socioeconomic
rights as fundamental human
rights. For this reason, the South African
Constitution has been hailed as one of the
most progressive constitutions in the world.
The Constitution also takes the progressive
step of stipulating that socio-economic rights,
like civil and political rights, are subject to
judicial enforcement. Thus, if these rights are
violated, the Courts can be approached for
relief.4 Nonetheless, the South African
Constitution still makes certain distinctions
between civil and political rights and socioeconomic
rights, which have far reaching
practical implications for all people living
within South Africa.
The Constitution stipulates that civil and
political rights, such as the right to equality
and non-discrimination (Section 9); the right
to human dignity (Section 10); the right to
life (Section 11); the right to freedom and
security of the person (Section 12); the right
to freedom from forced labour (Section 13);
the right to privacy (Section 14); the right to
freedom of religion, belief and opinion
(Section 15); the right to freedom of expression
(Section 16); the right to freedom of
association (Section 18); the right to vote
(Section 19); the right to citizenship (Section
20); the right to freedom of movement
(Section 21); the right to freedom of trade, aLQ – March 2006 11
Socio-Economic Rights versus
Civil and Political Rights
Socio-Economic Rights versus
Civil and Political Rights
The South African Constitution1, through the Bill of Rights, enshrines
fundamental rights and freedoms to which everyone is equally entitled and
has the right to equally enjoy.
N occupation and profession (Section 22); the
right to fair labour practices (Section 23);
and the right to access the courts (Section
34), are rights, which should be immediately
respected, protected, promoted and fulfilled
by the state.
However, under certain extreme conditions,
such as in a time of war, some of these civil
and political rights can be limited.
Nonetheless, some rights, including the right
to equality and non-discrimination; the right
to human dignity; the right to life and the
right to freedom of security of the person are
viewed as non-derogable rights in the
Constitution, which means that they cannot,
under any circumstances, be limited. This,
arguably, indicates that the Constitution
places a strong emphasis on the need for the
state to immediately recognise and respect
people’s civil and political rights, especially
the rights that are defined as non-derogable.
On the contrary, the Constitution specifies
that the majority of socio-economic rights,
such as the right to access housing, land,
healthcare, sufficient food, water, and social
security, do not have to be immediately
fulfilled by the state . In fact, the Constitution
states that the government only has to undertake progressive steps,
within the limit of its available resources, towards ensuring that people
have access to socio-economic rights. These progressive steps can
include producing relevant legislation, policy documents and/or
allocating resources towards addressing issues around the access to
Nevertheless, it is important to bear in mind that the Constitution
only places an obligation on the state to ensure people have access to,
and not full enjoyment of, socio-economic rights. This access to socioeconomic
rights does not, in fact, have to be free access either. Hence,
even though the Constitution does not explicitly make a distinction in
importance between socio-economic and civil and political rights, it
does, however, do so by defining civil and political rights as immediate
and socio-economic rights as non-immediate. This translates into a
situation where, in many cases, government can remain within the
constitutional boundaries, even though they may not be directly
addressing people’s socio-economic needs – all government has to do
is to demonstrate that they are working towards addressing these
needs. This means that government can still, for example, justify not
providing adequate healthcare to all people, as long as they can
demonstrate that they have formulated progressive plans, and are
taking some steps – even if they are fairly limited – to do so in the
future. Indeed, these plans do not necessarily have to include
timeframes, only a ‘commitment’ that access to adequate healthcare
would be provided to all people at some, undefined, point in the future.
THE REALITY OF SOCIO-ECONOMIC RIGHTS
It is common knowledge that inequality, in terms of income and
access to resources, appears to be ever-growing in South Africa.
According to the United Nations Human Development Index8, 48.5%
of South Africans live below the poverty line9, while more than 40%10
of the working age population is unemployed. In real terms, income
inequality increased between different sections of the population from
1993 to 2004.11 This growing inequality also means that accessing and
12 aLQ – March 2006
only places an
obligation on the
state to ensure
people have access
to, and not full
enjoyment of, socioeconomic
access … does not, in
fact, have to be free
…government can still, for
example, justify not providing
adequate healthcare to all people,
as long as they … are taking some
steps – even if they are fairly
limited – to do so in the future.
Socio-Economic Rights versus
Civil and Political Rights
Nrealising socio-economic rights remains, for many people, but a dream.
The South African Human Rights Commission12 notes that many
people have no access to adequate housing, clean drinking water,
elementary social services, sufficient nutrition, and adequate
healthcare services. In reality, many people are denied access to
social grants, due to a lack of documentation, maladministration and
the poor standards at the service delivery points; many people are
denied access to water, because of the cost-recovery system and
inadequate infrastructure; many people are denied adequate
healthcare, because of staff shortages, a lack of resources at public
hospitals and clinics and/or due to their HIV status; and many
people are also denied access to prevention, such as condoms,
because of their age – to name but a few examples of persistent
limited access to socio-economic rights. In fact, due to growing
inequality and limited access to socio-economic rights, combined
with the growing HIV and AIDS pandemic, life expectancy in South
Africa dropped from 56 years old in 1996 to 48 years old in 2003.13
Hence, the constitutional provisions, regarding access to socioeconomic
rights, seemingly mean very little, if they are not
integrated into people’s lives. In fact, the lack of access to socioeconomic
rights, such as the right to sufficient food, water, and
healthcare, is undermining people’s civil and political rights, such as
the right to human dignity, the right to equality, and even the right to
life. Indeed, a lack of access to socio-economic rights for people
living with, and affected by, HIV and AIDS can have catastrophic
consequences, both in terms of their health and their living conditions.
Many households have experienced a loss of, or reduction in,
income, because of the effects of HIV and AIDS. Without a broad
social security safety net and a free quality public healthcare system,
the responsibility for caring for ill household members often falls on
the remaining healthy household members, which, in turn,
undermines the possibility of them maintaining, or finding, employment.
As a result, many households not only lose the income of ill
household members, but also that of healthy household members.
This all leads to greater poverty within these households and further
undermines their scope to fully access socio-economic rights.
The cost of healthcare and treatment also
places a further burden on these households.
Households affected by HIV and AIDS are
often forced to divert scarce resources,
which would have been allocated to accessing
food, water, transport, and housing, to cover
the growing medical costs that are associated
with HIV and AIDS. This often, and very
directly, negatively impacts on the extent to
which socio-economic rights, such as the
right to access sufficient food, water and
adequate housing, can be realised by various
members of the household, which in turn
undermines the right to dignity and, in some
cases, the right to life for members of the
household. Indeed, if a household lacks not
only income, but also access to free quality
healthcare, the medical costs, associated with
the treatment and care of HIV, can become
totally pro-hibitive, resulting in a situation, in
which civil and political rights, such as the
right to dignity, are equally limited for both,
the infected and affected member/s of
The reality is that the lack of access to
socio-economic rights has a spiral effect in
that it contributes to growing inequality
within our society, which in turn affects
people’s ‘ability’ to access socio-economic
rights. The full enjoyment of civil and
political rights is, therefore, contingent on
the full realisation of socio-economic rights.
aLQ – March 2006 13
… if socio-economic
rights are not met now,
the consequences are
poverty and inequality
…plans do not necessarily have to
include timeframes, only a
‘commitment’ that access …would
be provided at some, undefined,
point in the future.
Socio-Economic Rights versus
Civil and Political Rights
R 14 aLQ – March 2006
Adequate access to socio-economic
rights is not only crucial for people’s
physical survival, but is also crucial for
people’s quality of life and development. A
lack of access to socio-economic rights not
only undermines a person’s present civil and
political rights, it also, to a large degree,
undermines their future prospects. In other
words, if socio-economic rights are not met
now, the consequences are that generational
poverty and inequality will continue.
Indeed, if we are to have a society that truly
values human rights, then that society
should gather all its material, economic,
social and political resources to address the
conditions that perpetuate poverty and
the marginalisation of large sectors of the
The argument that the full enjoyment of
civil and political rights depends on the
realisation of socio-economic rights, does,
however, not mean that socio-economic
rights are more important than civil and
political rights. In reality, it means that one
cannot differentiate in importance between
civil and political rights and socio-economic
rights. Both are equally important, both are
inter-related, and both are inseparable.
Violations of people’s civil and political
rights, such as the right to equality and nondiscrimination,
can also undermine their
position to access socio-economic rights.
For example, stigma and discrimination,
based on gender, sex, sexual orientation and/or HIV status, often
leads to people being denied access to socio-economic rights by
service providers, including the right to access healthcare. In reality,
many people living with HIV continue to be denied access to credit
facilities, which directly undermines the possibility of accessing the
right to adequate housing, due to prevailing stigma and discrimination.
Hence, access to socio-economic rights will remain limited and
become meaningless, as long as violations against people’s civil and
political rights, based on their sex, gender, sexual orientation and/or
HIV status, continues.
Hence, true equality cannot be achieved without the full
recognition, the full realisation and the full enjoyment of civil,
political and socio-economic rights. Indeed, civil, political and
socio-economic rights are truly fundamental human rights.
1. The Constitution of South Africa, Act 108 of 1996.
2. Devenish, G. 1998. A Commentary on the South African Constitution. Durban: Butterworth.
3. Seleoane, M. 2001. Socio-Economic Rights in the South African Constitution: Theory and Practice. Cape
Town: HSRC Press.
4. Heyns, C. 1998. ‘Advancing Social Justice in South Africa through Economic and Social Rights: From the
margins to the mainstream.’ In ESR Review, Vol. 1, No. 1.
5. Section 37 of the Constitution.
6. The only socio-economic rights that have to be implemented without delay are children’s socio-economic
rights, the right to basic education, and the right not to be subjected to arbitrary evictions.
7. Section 26 (2), Section 27(2) of the Constitution. See also Liebenberg, S. & Pillay, K. 2000. Socio-
Economic Rights in South Africa. Cape Town: Community Law Centre.
8. UNDP. 2003. South Africa: Human Development Report.
9. Absolute poverty line in South Africa is calculated as R 354 per month per adult.
10. Statistics South Africa. 2004. Labour Force Survey. Expanded definition of unemployment.
11. Van der Berg, S. et al. 2005. Trends in poverty and inequality since political transition.
12. South African Human Rights Commission. Economic and Social Rights Report 2002/2003. Pretoria:
13. United Nations. 2005. Human Development Report.
Shawn Hattingh is the Sub-Editor at the AIDS Legal Network
(ALN). For more information and/or comments, please contact
him at +27 21 447 8435 or at email@example.com.
… 48.5% of South
Africans live below
the poverty line, while
more than 40% of
the working age
…life expectancy in South Africa
dropped from 56 years old in
1996 to 48 years old in 2003.
Socio-Economic Rights versus
Civil and Political Rights
Refugees are persons who have fled their countries of origin due to
individual persecution, or conditions of war, or events seriously disrupting
public order.1 Most refugees in South Africa appear to have fled conflict
situations on the African continent.2
Disabled refugees are extremely vulnerable members of any
society, both as refugees and as persons with disabilities. Refugees do
not receive social assistance from the South African state. In their
current forms, the legislative schemes that regulate social assistance in
South Africa totally exclude disabled refugees from gaining access to
appropriate social assistance. However, Section 27(f) of the Refugees
Act (No 130 of 1998) does allow recognised refugees to seek
employment in South Africa. It, thus, seems to be the South African
government’s policy that refugees should provide for their and their
families’ socio-economic needs themselves, through employment.
Many disabled refugees cannot work because of their disability.
This exacerbates their vulnerability, as they are seldom able to
sufficiently maintain themselves or their families. Their vulnerability
is exacerbated by the fact that most refugees do not have extensive
networks of family or friends in South Africa, to whom they can turn
when they become economically incapacitated, due to a disability.
For reasons intrinsic to their status as refugees, they usually also
cannot turn to the diplomatic representatives of their governments in
South Africa, or even return to their countries of origin to seek social
assistance. Neither can they currently turn to the South African
government for such assistance when they become disabled.
South Africa’s failure to provide this vulnerable group with access
to appropriate social assistance may unjustifiably limit some of their
This statement must be evaluated with reference to the relevant
statutory provisions providing for social assistance grants, how these
provisions exclude refugees and whether or not these statutory
provisions are on face value in line with the provisions of the South
African Constitution and international law.
The current legislative scheme: The Social Assistance Act
(No 59 of 1992)
Section 27 of the Constitution3 mandates appropriate social
assistance for persons, who are unable to maintain themselves. The
legislative schemes contained in the current, and new, Social
Assistance Acts constitute part of the state’s commitment to making
available appropriate social assistance to disabled persons, by
The current Social Assistance Act and its Regulations is the
prevailing law that regulates the provisions of social assistance.
Section 3 of the current Social Assistance Act sets the requirements to
qualify for a disability grant. It provides that any disabled person shall
be entitled to the appropriate social grant, if the person satisfies the
Director General that she or he is a disabled
person, is resident in the Republic at the
time of the application in question, is a
South Africa citizen or a permanent resident
of the Republic, and complies with the
In addition to these requirements,
Regulation 9 requires a copy of the
applicant’s identity document to accompany
an application for a disability grant.
Regulation 1 defines an identity card to mean
an identity card referred to in Section 14 of
the Identification Act (No 68 of 1997).
In terms of Section 3 of the Identification
Act, that Act shall apply only to persons who
are South African citizens or permanent
residents. The Identification Act, therefore,
does not apply to refugees. Accordingly,
refugees are not issued with identity cards in
terms of the Identification Act. Instead,
refugees are issued with refugee identity
documents, in terms of Sections 27 and 30 of
the Refugees Act. Refugee identity
documents do not satisfy the definition of ‘an
identity card’ within the terms of the Social
Both the requirement that a person must
be a South African citizen or permanent
resident of South Africa, and the requirement
that an applicant for a grant must submit a
copy of her or his identity card, issued in
terms of the Identification Act, present total
legal exclusions to refugees from enjoying
access to social assistance.
The new legislative scheme: The
Welfare Laws Amendment Act and the
Social Assistance Act (No 13 of 2004)
Recently, a number of amendments have
been proposed to the current legislative
scheme regulating social assistance.
Unfortunately, they will not bring relief to
disabled refugees, if implemented.
During 1997, the President of South
Africa assented to the Welfare Laws
Amendment Act (No 106 of 1997). If enacted,
this Amendment Act will replace almost the
entire current Social Assistance Act. To date,
it has only been brought into force in respect
of the Child Support Grant. aLQ – March 2006 15
Refugees and Disability Grants:
Should the most vulnerable be excluded?
Refugees and Disability Grants:
Should the most vulnerable be excluded?
aLQ – March 2006 S 16
In respect of the Disability Grant, the
current Social Assistance Act accordingly
remains the prevailing law. Should the
Welfare Laws Amendment Act be brought
into force, applicants for Disability Grants
will still have to be a South African citizen or
permanent resident to qualify. This
amendment will, thus, not provide relief for
In another legal development, the
President, during 2004, assented to the Social
Assistance Act (No 13 of 2004) (hereinafter
‘the new Social Assistance Act’). To date, the
new Social Assistance Act has not come into
force. When it does, it will repeal the current
Social Assistance Act and its Regulations.
However, Section 5 of the new Social
Assistance Act also requires an applicant to
be a South African citizen, which means it
will not bring relief to disabled refugees,
when coming into force.
In one of the most recent legislative
developments, the Minister of Social
Development, during February 2005,
published Draft Regulations for public
comment. In these Draft Regulations it is
proposed that an applicant must have a valid
identity document to apply for a Disability
Grant. Similar to the provisions of the current
Social Assistance Act, Draft Regulation 1
defines an identity document to mean an
identity document referred to in Section 14 of
the Identification Act.
It is clear that should these Draft
Regulations be made into the Regulations
supporting the new Social Assistance Act,
when it comes into force, disabled refugees
will still not have access to the Disability
Grant, because they do not have access to
identity cards, issued in terms of the
Relevant statutory, constitutional and international law
As shown, the current, and future envisaged, legislative schemes
totally exclude disabled refugees from having access to appropriate
social assistance in the form of Disability Grants.
Such exclusion limits the rights of disabled refugees to enjoy
equality, dignity and social assistance in South Africa. It is a limitation
that seems not to be justifiable in terms of either the provisions of the
Constitution, domestic refugee law or international law. The reason
for this view will be briefly explained with reference to relevant
The Constitution and the Refugees Act provides for the rights and
obligations of refugees resident in South Africa. The Refugees Act
came into force on 1 April 2000. Section 27(b) specifically provides
that refugees should enjoy full legal protection in South Africa, which
must include the rights set out in Chapter 2 of the Constitution.
Chapter 2 of the Constitution contains the Bill of Rights. Section
27(1) thereof provides that everyone has the right to have access to
social security, including if they are unable to support themselves and
their dependants, appropriate social assistance.
Section 9 entrenches the right to equality for everyone. The state
may not unfairly discriminate, directly or indirectly, against anyone on
one or more grounds, including race, gender, sex, pregnancy, marital
status, ethnic or social origin, colour, sexual orientation, age,
disability, religion, conscience, belief, culture, language and birth.
Section 10 of the Constitution guarantees that everyone has
inherent dignity and the right to have their dignity respected and
protected, whilst section 7(2) imposes a duty on the state to respect,
protect, promote and fulfil the rights in the Bill of Rights.
The legislative schemes described above are in breach of the
various rights in the Bill of Rights and, as such, the state is in breach
of Section 7(2) of the Constitution.
It is an established principle of South African law that the word
everyone, when interpreting sections 9, 10 and 27 of the Constitution,
also include non-citizens.4 I submit that this term should also embrace
refugees within the context of Constitutional interpretation.
It is not only domestic law that seems to obligate the government to
provide disabled refugees with equal access to the social assistance, to
which disabled South African citizens presently have access,
international law also appears to demand this.
The Refugees Act must be interpreted with due regard to the
provisions of the 1951 UN Convention Relating to the Status of Refugees,
and the 1967 Protocol thereto, and any other relevant convention or
international agreement, to which South Africa has become a party.5
South Africa has unreservedly ratified the UN Refugee Convention
and the African Charter on Human and Peoples’ Rights, 1986. By
ratifying the African Charter, South Africa legally committed itself to
ensure that every person within South Africa’s borders should enjoy
equality and dignity, and that all disabled persons lawfully within
South Africa should enjoy special measures of protection, in keeping
with their physical and moral needs.6
South Africa, in terms of Article 24 of the UN Refugee Convention,
undertook to accord refugees, lawfully staying in its territory, the same
treatment that it accords to its citizens, in respect of access to social
assistance, such as disability grants.
It is, thus, an anomaly that whilst the South African government
voluntarily accepted these legal obligations, it has not, to date,
incorporated them into the legislative framework regulating
documents do not
satisfy the definition
of ‘an identity card’
terms of the Social
Refugees and Disability Grants:
Should the most vulnerable be excluded?
R Justification for the limitation of the rights of refugees
The lack of financial resources may well be offered as justification
for the limitation of refugees’ rights in the context of social assistance.
However, a brief analysis of the social profile of refugees, and the
numbers involved, illustrates that the additional resources required to
uphold the rights of disabled refugees, is limited, and may not actually
sustain this justification for limitation of their rights.
Although there is no precise figure of the number of recognised
refugees in South Africa, it is estimated that the Department of Home
Affairs has formally recognised approximately 28 000 persons as
refugees since 1994.7 Refugees appear to be an extremely small group
In addition to persons formally recognised, there are approximately
between 85 000 and 115 000 persons, who still await the outcome of
their applications for asylum.8 It is not clear what the number will be
exactly, but one can assume that the number of formally recognised
refugees may increase to some extent, when this backlog is addressed.
However, the number of disabled refugees, as with any population
group would never, in absolute terms, amount to a significant
proportion of the refugee population in South Africa as a whole.
Due to the small number of refugees in South Africa, it is
government policy that refugees integrate with the society. Refugees
here, unlike the situation in many other African countries, are not
housed in refugee camps. In countries where such camps exist, these
camps constitute the welfare arrangements for the refugees.
Because the number of refugees in South Africa is relatively small,
it is probable that the policy of local integration will continue. It is,
therefore, unlikely that the South African government will, at any
stage, have to make special welfare arrangements for large numbers of
refugees. In any event, if South Africa is faced by a large-scale influx
of refugees, the government is not precluded from assessing the
welfare arrangements to be made for refugees at that stage.
At present, the Disability Grant is R780 per month. In terms of the
total budget for expenditure on social grants, which amounts to tens of
billions of Rands every year, the expenditure to provide grants for
disabled refugees would be negligible.
Whatever the exact amount, the additional financial expenses in
respect of social assistance for disabled refugees would most likely
never amount to any significant increase in the overall budget.
Financial constraints of this relatively small magnitude should not be
allowed to defeat the Constitutional claims of refugees. This is
particularly so, if regard is given to the expenditure by the state on a
wide range of relatively unimportant matters.9
Refugee status, like citizenship, is a
personal attribute that is very difficult to
change, one which has not been made by
choice and over which an individual has very
little control. Refugees are denied access to
the Disability Grant, solely because of their
refugee status. In South Africa, refugees are a
marginalised minority group, with no
political power or rights whatsoever. They
cannot, therefore, change their exclusion
from accessing appropriate social assistance
through political means.
Viewed against South Africa’s
constitutional provisions, and the international
legal obligations that this country has
undertaken, such exclusion may not only be
morally unacceptable, but may perhaps be
1. Section 3(a) of the Refugees Act (No 130 of 1998) provides that a
person qualifies for refugee status if he or she has: ‘A well-founded fear
of being persecuted by reason of his or her race, tribe, religion,
nationality, political opinion or membership of a particular social
group, is outside the country of his nationality and being unable or
unwilling to avail himself of the protection of that country…’ whilst
Section 3(b) provides that a person qualifies for refugee status if
‘Owing to external aggression, occupation, foreign domination or
events seriously disturbing or disrupting public order in either part
or the whole of his or her country of origin or nationality, is
compelled to leave his or her place of habitual residence in order to
seek refugee elsewhere’.
2. See generally UNCHR. 2005. Discussion document on measures to
clear the backlog in asylum applications. February 2005.
3. The Constitution of South Africa, Act 108 of 1996.
4. See generally: Larbi-Odam v. MEC for Education (North West
Province) 1998 (1) SA 745 (CC), Khosa and others v. Minister of Social
Development and others 2004(6) SA 505(CC) at Para 47, Lawyers for
Human Rights and another v. Minister of Home Affairs and others
2004(4) SA125 (CC) at Para 26.
5. Section 6 of the Refugees Act.
6. See Articles 3, 5 and 18(4) of the African Charter on Human and
7. See generally UNCHR. 2005. Discussion document on measures to
clear the backlog in asylum applications. February 2005. Para 3.
8. Ibid at Para 4.
9. But one example of this is the recent widely publicised state
expenditure of hundreds of thousands of Rands on air transport for the
private travel arrangements of senior state functionaries.
10. On 19 September 2005 an application challenging the
Constitutionality of the exclusion of disabled refugees from accessing
appropriate social assistance was launched in the Pretoria High Court
under case no. 32054/ 2005. Recently, an interim settlement agreement
was concluded between the litigating parties, wherein the South African
government, amongst other things, have agreed to file a written ‘Social
Assistance Plan for Refugees’ by 31 March 2006, in which they will
set out the exact manner in which they intend to give effect to their legal
obligations towards disabled refugees.
aLQ – March 2006 17
Refugees and Disability Grants:
Should the most vulnerable be excluded?
Refugee status, like citizenship,
is a personal attribute that is very
difficult to change, one which has
not been made by choice and
over which an individual has
very little control.
Fritz Gaerdes is an attorney at
Lawyers for Human Rights, Pretoria
Law Clinic, and the coordinator of its
Strategic Litigation Unit. For more
information and/or comments, please
contact him on +27 21 320 2943
or at firstname.lastname@example.org.
It is estimated, that 71% of all the people
who are infected with HIV in the world live in
sub-Saharan Africa, while this region
contains only 11% of the world’s population.
South Africa is the country with the largest
population living with HIV and AIDS.2
In South Africa, the increase in
prevalence of HIV incidences over a 14 year
period, arguably demonstrates the failure of
prevention strategies, underpinned by a lack
of political will. A study by the Human
Science Research Council (2005)3 indicates
that in 2005, between 4.8 and 5.3 million
South Africans, aged 2 years and older, were
living with HIV and AIDS. A further
research of the national probability sample
of South African educators revealed that
22%, of the ones infected with HIV, had
CD4 cell counts below 200.4 The impact of
HIV and AIDS falls disproportionately on
the poor population of the country, placing
major challenges on the enhancement
and acceleration of the overall poverty
eradication efforts, meant to avoid the
continued downward slide and marginalisation
of a significant portion of society.5
The government is providing ARV therapy
through the public healthcare system.
Although, not everyone living with the virus
is in need of treatment, it remains a matter of
concern that only about 45 000 people are on
anti-retroviral treatment (ART), through the
public health facilities, in a country where
more than 200 000 people are in dire need of
treatment.6 HIV and AIDS has an adverse
impact on many parts of the society, including
demographic, household, health sector,
educational, workplaces and economic aspects. Furthermore, the
pandemic has brought protracted illness, premature death and grief to
millions of people.7
THE CONSTITUTIONAL PROVISIONS
Chaskalson (1998) describes South Africa’s past as scarred by
‘disparities of wealth and skills between those who benefited from
colonial rule and apartheid and those who did not.’ 8 Now, South Africa
celebrates a ‘progressive national constitution’, that guarantees
socio-economic rights, including the right of access to healthcare, not
as directive principles of state policy, but as fully fledged rights,
incorporated in the Bill of Rights, on the same footing as the civil and
Although, the inclusion of socio-economic rights in the
Constitution was supported by various political organisations, their
inclusion did not go unchallenged. Various objections were raised in
the process of the certification of the 1993 Interim Constitution of
South Africa, including that civil and political rights are self-executing,
while socio-economic rights are not; that the implementation of
socio-economic rights is a subject matter of politics, and not of law;
that the judicial review is an infringement on the separation of powers
doctrine; that socio-economic rights raise budgetary issues; and that
socio-economic rights are programmatic in nature, and, therefore, not
capable of immediate realisation. These arguments were subsequently
rejected by the Constitutional Court.10
In the Preamble of the Constitution11, one of the aims stated is to
‘improve the quality of life of all citizens and free the potential of each
person’. The Constitution, in Section 7(2), imposes three levels of
obligations on the state, namely the duty (i) to respect, (ii) to protect,
and (iii) to promote and fulfil the rights in the Bill of Rights. The duty
to respect is regarded as a negative duty, while the duties to protect,
promote and fulfil impose a positive obligation on the State. It is
argued, that in developing an understanding of the nature of the
obligations imposed by socio-economic rights, it will be possible to
identify as and when the rights are being violated.12
Positive duties entail that the state must take positive measures
18 aLQ – March 2006
Realising the right of access
to healthcare for poor people
living with HIV and AIDS
Whenever we lift one soul from a life of poverty, we are defending human
rights. And whenever we fail in this mission, we are failing human rights.
Right of access to healthcare
H towards the realisation of the right. The state, for example, may enact
legislation, policy or allocate resources. Negative duties entail that the
state deters from infringing upon the enjoyment of the right. Despite
the apparent clarity, the distinction between positive and negative
duties, goes, in reality, beyond the literal distinction between acting
and not acting. In South Africa, the Courts employ a more robust
scrutiny in cases of negative breach. The Courts find such cases to be
less intrusive to the separation of powers.13 However, often, the same
conduct can result in a breach of the positive duty to fulfil
and negative duty to respect and, thus, making it difficult to use
THE RIGHT TO ACCESS HEALTHCARE
There are various constitutionally guaranteed rights aimed at the
protection of health as a right, including the right to bodily and
psychological integrity, which encompasses the right to reproductive
choices, the right to security in and control over one’s body, and the
right not to be subjected to medical or scientific experiments without
one’s informed consent (Section 12(2)); the right to an environment
that is not harmful to one’s health or well-being (Section 24(a));
children’s right to basic nutrition, shelter, basic healthcare services and
social services (Section 28(1)(c)); and the right of detainees and
sentenced prisoners to conditions of detention that are consistent with
human dignity, including the provision of adequate accommodation,
nutrition, reading material and medical treatment (Section 35(2)(e)).
Other rights enshrined in the Constitution, which support the full
realisation of the health rights, include the right to equality (Section 9),
right to human dignity (Section 10), the right to life (Section 11), the
right to privacy (Section 14), the right to education (Section 29), the
right to adequate housing (Section 26), and the right to sufficient food
and water (Section 27).
However, central to this discussion is Section 27 of the
Constitution, stating that:
(1) Everyone has the right to have access to –
(a) health care services, including reproductive health care;
(b) sufficient food and water; and
(c) social security, including, if they are unable to support
themselves and their dependants, appropriate
(2) The state must take reasonable legislative and other
measures, within its available resources, to achieve the
progressive realisation of each of these rights.
(3) No one may be refused emergency medical treatment.
Section 27 guarantees everyone the right
of access to healthcare services and
emergency medical treatment, and obliges the
state to take reasonable measures to achieve
the realisation of these rights.15 For the
Constitution to become relevant in the fight
against HIV and AIDS, and in the protection
of people infected and affected by HIV and
AIDS, one must clearly understand the
obligations it creates.
However, ‘healthcare services’ are not
defined in the Constitution. It has been
suggested that these services must include
proper medical care, prevention and diagnosis
of diseases and vaccination. This suggestion
still does not elucidate the content of the right.
In other words, the difficulty is that it is often
not clear to what extent the State has to
guarantee access to healthcare.17 For example,
it is not clear what constitutes ‘emergency
medical treatment’, because it may be argued
that most medical conditions are emergencies,
as viewed from the patient’s perspective.
JUSTICIABILITY OF SOCIOECONOMIC
RIGHTS IN THE
The Constitutional Court is constitutionally
mandated to interpret and give effect to the
rights in the Bill of Rights.18 Liebenberg
[2004:7] describes the Court’s role as that of
…a critical balance between effectively
protecting the socio-economic rights of
the poor, while also respecting the
roles of the legislature and executive
as the primary branches of government
responsible for realising socioeconomic
Although, there are various challenges in
constitutional litigation, the Constitutional
Court has clearly expressed itself on the aLQ – March 2006 19
entail that the state must take
positive measures towards the
realisation of the right.
Negative duties entail
that the state deters
from infringing upon
the enjoyment of
Right of access to healthcare
justiciability of socio-economic rights. The
Court views socio-economic rights as
justiciable human rights. In the case In re:
Certification of the Constitution of the
Republic of South Africa19, the Court held that
the socio-economic rights ‘are, at least to
some extent justiciable; and [at] the very
minimum…can be negatively protected from
invasion.’ In doing so, the Court takes due
regard of various factors including the
historical context.20 The total of these factors
allows for judicial intervention, where
government programmes, designed to meet
the socio-economic needs over a medium or
long-term period, exclude the immediate
measure of relief for people in desperate need
of government assistance.21 The TAC case,
like other cases on socio-economic rights, has
resulted in policy formulation by the
government, targeting strategic framework of
intervention including treatment, care,
prevention and support.
IMPLICATIONS OF THE
In Treatment Action Campaign v Minister
of Health 22, the applicants contended that the
government acted against its own policy,
which entitled pregnant women and children
under the age of 6 years to free health
services.23 The applicants also suggested that
the selection of the pilot sites available was
discriminatory against the poor, which were
indirectly discriminated against on the
grounds of race.24 Thirdly, they contended that
the government’s approach encroached on the
basic fundamental rights of access to
healthcare (Section 27), basic health services
for children (Section 28(1)(c)), the right to
life (Section 11), the right to human dignity
(Section 10), the right to equality (Section 9),
and the right to make reproductive choices
(Section 12(2)(a)). The applicants also argued that the state was in
breach of its negative duty and, thus, attempted to get the Court to
endorse a ‘minimum core’ approach.
The Reasonableness Approach
As the Court rejected the ‘minimum core’ approach, it adopted a
‘reasonableness test’. A detailed account of the reasonableness test,
used to assess the State’s compliance with the obligation to realise
socio-economic rights, is set out in the Constitutional Court case of
Government of the Republic of South Africa v Grootboom25. The
approach has been described as a ‘means-end’, and requires that the
measures be evaluated to determine whether or not they are
‘capable of facilitating the realisation of the right’. The following
principles were established:
The programme must be comprehensive, coordinated, clearly
allocate responsibilities and tasks to the different spheres of
government, and ensure that ‘the appropriate financial and
human resources are available’.27
Although, each sphere of government is responsible for
implementing parts of the programme, national government has
the overarching responsibility to ensure that the programme
adequately meets the State’s constitutional obligations.28
The programme ‘must be capable of facilitating the realisation
of the right’ 29
Policies and programmes must be reasonable, ‘both in their
conception and their implementation’.30
The programme must be ‘balanced and flexible and make
appropriate provision for attention to housing crises and to
short-, medium-and long-term needs’. A reasonable programme
cannot exclude ‘a significant segment of society’.31
The programme must include a component that responds to
the urgent needs of people in desperate situations. Thus, a
reasonable programme, even though, it is statistically successful
in improving access to housing, cannot ‘leave out of account the
degree and extent of the denial of the right they endeavour
The poor are particularly vulnerable and their needs require special
attention. It is not certain whether or not these principles can
effectively assist the poor. The precise parameters of this test are still
The question of ‘available resources’ is hard to grasp. It demands 20 aLQ – March 2006 Right of access to healthcare
The question of ‘available
resources’ is hard to grasp. It
demands that one distinguishes
between lack of will and inability to
realise the right.
For the Constitution to
become relevant in the
fight against HIV and
AIDS, … one must
clearly understand the
obligations it creates.
Tthat one distinguishes between lack of will and inability to realise the
right.34 Clearly, socio-economic rights in the Constitution do not
require the state to do more than is achievable within its available
resources. Availability has been described by the Committee on
ESCR.35 The healthcare sector is but one of the many sectors, such as
education and social welfare, that are competing for scarce resources
against the backdrop of historical neglect. Nevertheless, healthcare
facilities, goods and services have to be available in sufficient
quantity; must be physically and economically accessible (affordable)
to everyone; must be ethically and culturally acceptable; and must be
of a medically appropriate quality. Consequently, the amount of
resources required will feature prominently in any adjudication of the
constitutionality of government’s programme for increasing access to
The State is not expected to ensure the full realisation of the right
immediately. The Constitution requires the right of access to healthcare
to be realised ‘progressively’, through ‘reasonable’ legislative and
other measures. This duty is based on the notion that individuals will
provide for themselves. However, the state has a duty to help
individuals to access the right, and where they are unable to do so, to
provide direct assistance or services.
As Brand [2005:2] argues,
…constitutional socio-economic rights are blueprints for the
state’s manifold activities that proactively guide and shape
legislative action, policy formulation and executive and
The Court must examine ‘legal, administrative, operational and
financial hurdles and, where possible, lower these barriers over
time’.37 In the context of HIV and AIDS, this requirement does not
only imply a gradual increase of numbers of people accessing ARV
treatment, but also includes improved quality of care and medicines.
There are a number of challenges flowing from the South African
experience in applying the socio-economic rights in the Constitution.
The importance of socio-economic rights in the Constitution
will diminish, if the Courts interpret them as imposing weak
obligations on government. There is no precise definition of the
scope and content of the right of access to healthcare. The
Constitutional provisions do not show the state obligations (the
minimum core) from which partial fulfilment should result in
The HIV crisis requires a multi-faceted approach. It demands
a human rights-based approach to prevention, treatment, care and
support programmes. There is, therefore, a need for a systematic
and coordinated approach to effectively reduce the spread, and
impact, of HIV and AIDS, as well as to reduce the number of
premature deaths caused by the disease.
Once infected, there is no cure for HIV and AIDS. Treatment
options include treatment of opportunistic infections, as they
arise, and the use of ARV medicines.38
For poor people living with the virus,
access to public healthcare facilities is
of paramount importance, as it is often
the only way through which they can get
Mere codification of socio-economic
rights in the Constitution may be a good
starting point towards the realisation of
the rights of the poor. However, the
enforcement and implementation
thereof is what is required.
Provision of adequate healthcare
services must run alongside other human
rights obligations, designed to improve
the health and well-being of people living
with HIV and AIDS. People need to be
healthy in order to fully enjoy their
constitutional entitlements. It is also
argued that because the state is obliged to
assist people who cannot access basic
services through their own effort, it
should prioritise programmes directed at
South Africa faces enormous challenges
of poverty and unemployment. From the
above, it is clear, that access to healthcare is,
by no means, realisable for everyone in South
Africa. Factors, such as stigma,
discrimination, poor funding of the health
sector, high costs of medication and a lack of
an enabling environment, further aggravate aLQ – March 2006 21
Right of access to healthcare
with regard to HIV and
AIDS are implemented,
the fight against
the pandemic will
never end and
millions more will die.
the challenges of access to adequate
healthcare, treatment, support and care. This
seems to indicate, that unless all declarations,
resolutions and commitments made with
regard to HIV and AIDS are implemented, the
fight against the pandemic will never end and
millions more will die.
The Court has not accorded adequate
protection to the very basic survival needs of
vulnerable individuals and groups, since it
has primarily taken an approach that leaves
individuals with very little hope of obtaining
individual relief.39 In its approach, the Court
has limited itself to compelling the state to
fulfil the obligations determined by the state
itself, whereas it is, arguably, the duty of the
Court to examine the compatibility of public
policy with regards to its effectiveness
towards the realisation of the right.
Certainly, litigation challenging the
validity of government programmes, and the
constitutionality of such decisions, is an
enticing option. However, litigation is
prohibitively expensive and, thus, out of the
reach for most public interest groups, let
alone individuals. Litigation can also drag on
for a number of years, without affecting the
status quo in the interim. Not all affected
persons are heard, therefore, decisions are
formulated in a general form that would
accommodate as many as possible. Thus,
there is little or no individual claim created by
positive judgments in favour of the poor.
Brand, D. 2005. Socio-Economic Rights in
South Africa. Pretoria: Pretoria University Law
Liebenberg, S. 2004. ‘Basic Rights Claims:
How responsive is ‘reasonableness review’?. In
ESR Review, Vol. 5, No 5.
1. United Nations Office of the High Commissioner for
Human Rights. ‘Human Rights in Development’
2. UNAIDS. 2005. AIDS Epidemic Update. December 2005. Geneva:
3. Shisana, O. et al. 2005. South African National HIV Prevalence,
HIV Incidence, Behaviour and Communication Survey.
Johannesburg: HRSC. (www.hsrcpress.ac.za)
4. Rehle, T. & Shisana, O. 2005. The Impact of Antiretroviral
Treatment on AIDS Mortality: A study focusing on educators in South
African public schools. (http://www.hsrcpress.ac.za)
5. Department of Health. 2001. An Enhanced Response to HIV/
AIDS and Tuberculosis in the Public Health Sector: Key
Components and Funding Requirements, 2002/03-2004/5
6. TAC Electronic Newsletter .‘Treat 200,000 by 2006!’ (www.tac.org.za/newsletter/news_2005.html)
7. Ngwena, C. 2000. ‘AIDS in Africa: Access to health care as a human right’. In SAPR/PL 15, 1.
8. Ebrahim H. 1998. The soul of the nation constitution-making in South Africa. Oxford University Press.
Foreword, p xvi.
9. Klug, H. 2002. ‘Access to Health Care: Judging Implementation in the Context of Aids: Treatment Action
Campaign v Minister of Health Tpd 21182/2001’. In SAJHR 18, 114. Also, Liebenberg, S. 2004. ‘Basic
Rights Claims: How responsive is ‘reasonableness review?’ In ESR Review, Vol. 5, No. 5, p. 7.
10. Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the
Republic of South Africa 1996 (4) SA 744 (CC), 1996 (10) BCLR 1253 (CC), paras 76-8. A full discussion of
the process leading to the adoption of the Constitution is beyond the scope of the paper. For a detailed account
of the Constitution making process in South Africa, see also Ebrahim, H. 1998. The soul of the nation constitution-
making in South Africa. Oxford University Press.
11. The Constitution of South Africa, Act 108 of 1996.
12. Liebenberg, S. 2001. ‘Violation of Socio-Economic Rights: The role of the South African Human Rights
Commission’. In Andrews, P. & Ellmann, S. eds. 2001. The Post-Apartheid Constitutions: Perspectives on
South Africa’s Basic Law. Witswatersrand & Ohio University Presses. Pp. 405 at 408.
13. Brand, D. 2005. Socio-Economic Rights in South Africa. p. 12.
14. In the TAC case, it was not clear whether or not the refusal to extend provision of Nevirapine in all public
facilities constituted negative interference of the right of access to healthcare services, or a breach of the positive
obligation to provide essential health service.
15. Ngwena, C. 2000. ‘Aids in Africa: Access to health care as a human right’. In SAPR/PL 15, 20.
16. De Waal, J., Currie, I. & Erasmus, G. 2005 The Bill of Rights Handbook (5th Ed). Cape Town: Juta. p.
17. Toebes, B.C.A. 1999. The Right to Health as a Human Right in International Law. Antwerpen:
Intersentia-Hart. p. 6.
18. Section 167(3) of the Constitution.
19. In re: Certification of the Constitution of the Republic of South Africa 1994 4 SA 744 (CC), para 78.
20. Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) paras 39-44.
21. Liebenberg, S. 2002. ‘South Africa’s evolving jurisprudence on socio-economic rights: An effective tool in
challenging poverty?’ In Law, Democracy & Development. Vol (2)6, p.178.
22. Minister of Health v Treatment Action Campaign 2002 (10) BCLR 1033 (CC).
23. Minister of Health v Treatment Action Campaign 2002 (10) BCLR 1033 (CC). Applicants’ Heads of
Argument, Part 1.
25. Government of the Republic of South Africa v Grootboom 2000 (11) BCLR 1169 (CC).
26. Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) para 41.
27. Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC), para 39. Also in Kutumela
v Member of the Executive Committee for Social Services, Culture, Arts and Sport in the North West
Province, the plaintiffs, qualifying for the Social Relief of Distress Grant, had not received it. Their complaint
was that the North West Province had not dedicated the necessary human, institutional and financial resources
to do so. The result was that the province had to dedicate necessary human, institutional and financial resources
to provide the grant. The province was also ordered to put in place the necessary infrastructure for the administration
and payment of the grant.
28. Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC), para 40.
29. Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC), para 41.
30. Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC), para 42.
31. Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC), para 43.
32. Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC), para 44. The measures
may not ‘leave out of account the degree and extent of the denial of the right in question and must respond
to the extreme levels of deprivation of people in desperate situations’.
33. To test the reasonableness of the government’s action, one must consider whether or not its measures were
reasonably aimed at progressively realising the right in question. Such enquiry requires content to be given to
the right. The normative content of the right to healthcare services has not been defined by the courts.
34. Engh, I.E. 2004. ‘Developing capacity to realise socio-economic rights: The example of HIV/AIDS and
the right to food in South Africa’. In ESR Review, 5, 2 at 3.
35. General Comment 14, para 12. ‘Functioning public health and health-care facilities, goods and services,
as well as programmes, have to be available in sufficient quantity within the State party. The precise
nature of the facilities, goods and services will vary depending on numerous factors, including the State
party’s developmental level. They will include, however, the underlying determinants of health, such as safe
and potable drinking water and adequate sanitation facilities, hospitals, clinics and other health-related
buildings, trained medical and professional personnel receiving domestically competitive salaries, and
essential drugs, as defined by the WHO Action Programme on Essential Drugs.’
36. CESCR. 22nd Session, General Comment 14: ‘The right to the highest attainable standard of health’. UN
Doc E/C.12/2000/4 11/08/2000.
37. Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC), para 45.
38. Bollyky, T.J. 2000. ‘Balancing Private rights and public obligations: Constitutionally mandated compulsory
licensing of HIV/AIDS related treatments in South Africa’. In SAJHR 18, 530-569, p. 535.
39. Liebenberg, S. 2005. ‘Enforcing Positive Socio-Economic Rights Claims: The South African Model of
Reasonableness’. In Squires, J., Langford, M. & Thiele, B. (Eds). The Road to a Remedy: Current Issues in
the Litigation of Economic, Social and Cultural Rights. Sydney: The University of New South Wales Press.
22 aLQ – March 2006 Right of access to healthcare
Bryge Wachipa is a Research Assistant in the Socio-Economic
Rights Project at the Community Law Centre, University
of the Western Cape. For more information and/or
comments, please contact him at +27 21 959 3708 or at
The Lusikisiki programme set out with the difficult task of
implementing anti-retroviral therapy in one of the poorest and most
densely populated rural areas of South Africa. It is a partnership
between MSF (Doctors Without Borders), the Nelson Mandela
Foundation and the Eastern Cape Department of Health.
The conviction of the programme was that anti-retroviral (ARV)
care in rural settings will not be effective if it remains the work of doctors
in hospitals. To have a significant impact at the community level,
ARVs must be provided at clinic level, using a nurse-based approach.
The programme has proven that a simplified, decentralised
approach is highly effective. Experience over the last two years has
shown that anti-retroviral therapy can be effectively scaled up at clinic
level, and that patient outcomes in the clinics are comparable to those
in the hospital.
Diagnosing an epidemic – Voluntary Counselling and
In 2005, the number of people tested increased 29% over the previous
aLQ – March 2006 23
A model of best practice
year – from 11,874 in 2004 to 15,366 in 2005.
The average percentage of people who tested
HIV positive was less than the previous year
(35% versus 41%), but because of the
increased number of testing done an additional
633 people were diagnosed HIV positive
(5495 in 2005; 4862 in 2004; 2562 in 2003).
In the beginning, mainly sick people were
tested for HIV (with a higher rate of HIV
infection), whereas now many healthy people
(with a lower rate) come voluntarily for
testing, resulting in the apparent decline in
The rapid increase in VCT is indicative of
a reduction in stigma within the community.
People are more willing to know their status.
This can be attributed to the success of the
ARV programme – people accept to be tested,
because they know they can be treated – and
Lusikisiki: A model of best practice
The red columns represent the increasing number of people testing. The shorter blue columns represent the
people who test HIV positive. The black line represents the declining percentage of people who test positive.
also to work at the community level to
encourage people to know their status.
Department of Health directives stipulate
that counselling can be done by counsellors,
but testing must be carried out by nurses.
However, given the critical shortage of nurses –
around half of nursing posts have been vacant
since the start of the project – and the fact that
the patient load will only continue to increase in
coming years, the task of carrying out VCT
should be shifted to the work of the counsellors.
Preventing Mother-To-Child-Transmission (PMTCT)
The PMTCT services were introduced by MSF, but are now run by
the Department of Health. 70% of nurses have undergone PMTCT
training, at least one from each clinic.
PMTCT coverage is above 80% at most clinics, but needs
improvement at others.
The goal of the programme is that all pregnant women are offered
VCT, and all HIV infected women are assessed for CD4 count and
fast-tracked onto ARVs, when their CD4 count is lower than 200.
The overall aim is to prevent childhood HIV infections, but there
are several other advantages: raising awareness and knowledge about
HIV, increasing coverage of VCT, enabling early management of
opportunistic infections, and increasing access to ARVs for
High fertility rates pointing to insufficient family planning
services and poor usage of condoms.
A more effective protocol using AZT and a single dose
Nevirapine, as opposed to Nevirapine only, has not yet been
approved due to operational reasons.
Many babies fail to be tested pointing to an urgent need to
implement routine PCR testing, which can be done from six
Some clinics only provide four tins of formula milk per month
instead of the eight needed, apparently due to fears of possible
stock shortages. 24 aLQ – March 2006
… given the critical
shortage of nurses –
around half of nursing
posts have been
vacant since the start
of the project … VCT
should be shifted to
the work of the
Lusikisiki: A model of best practice
This graph of Gateway Clinic clearly shows a problem occurring between April and August, which after
intervention could be rectified.
Treating HIV with anti-retrovirals (ARVs)
Lusikisiki has a population of about 150 000 people, with an
estimated HIV infection rate of 15%, that is 22 500 people living with
HIV. If 10% of these are immediately in need of ARVs, it means that
2 250 people are in need of ARVs. The Department of Health currently
provides ARVs to 1 529 patients (68% coverage in two years). Of these,
948 patients receive ARVs through twelve clinics and 581 through the
hospital. Enrolment is increasing faster in the clinics because of
multiple service points and services being integrated into general
consultations and not dependent on HIV specific staff.
CD4 count on initiation has risen. At the start of the programme
(early 2004), 50% of patients at hospital and 40% at clinics had a
baseline CD4 20% at both hospital and clinics. This is an indication that access to
ARVs has improved so that people are now recruited at a less
The CD4 and viral load of each patient is tested every six months.
Apart from monitoring the individual’s own health, these test results
can also be used as a measure of the programme as a whole. All
patients are divided into cohorts according to the date of starting
ARVs. These cohorts can then be compared
with one another and with other facilities.
Patient retention measures how many patients
are still on ARVs after the cohort has
completed six or twelve months of
treatment. Thus, service users who die, or that
are lost to follow-up, or that decide to stop
ARVs, will not be on ARVs anymore. Patients
that are transferred to other facilities are not
counted as part of the cohort. Retention at
clinics is 83,3% after six months and 80,2%
after twelve months. At the hospital, 75,6% of
patients are retained on ARVs after six
months and 68,6% at twelve months. This
higher drop-out rate at hospital can be due to
sicker patients starting treatment, patients
having to travel further, due to higher
numbers less individual engagement of health
care provider with each service user, less
reparation of ARV users, no community care
givers to follow-up on patients, who do not
return for appointment dates.
Patient outcomes, on the other hand, are
comparable at hospital and clinics. At clinics
and hospital 70% of patients have CD4 counts
more than 200 cells/mm3 and 91% of patients
have undetectable viral loads after six
aLQ – March 2006 25
Lusikisiki has a population
of about 150 000 people, with an
estimated HIV infection
rate of 15%, that is 22 500 people
living with HIV.
Lusikisiki: A model of best practice
In the last quarter of 2005 (October to December) the hospital enrolled 69 patients while the clinics enrolled 186.
Clinic-based ARVs versus
In Lusikisiki, uptake can be increased
rapidly and loss to follow-up reduced by
decentralising initiation of ARVs. Less
professional staff are needed, with doctors
being almost entirely replaced by nurses, and
community counsellors carrying a significant
part of the workload.
A buzz-word in South Africa’s ARV
program at the moment is ‘down referral’.
When the ARV roll-out started, it was based at
hospitals. Now, service points are saturated
and waiting lists are getting longer. So there is
discussion about a more decentralised
system, like Lusikisiki, where there is no
waiting list. On the surface it seems like
programme managers who motivate for down
referral are following the model of Lusikisiki.
However, on closer examination there might
be flaws with the concept of ‘down referral’.
Generally, down referral means that ARVs
should be provided at clinic level.
Does this mean service users are being
prepared, started and monitored for ARVs, all
at clinic level? Or does ‘down referral’ imply
that service users all start ARVs at hospital
and then get referred to clinic after six
months? If this is ‘down referral’, it does not
follow the Lusikisiki model but opens the way
to a situation that will be difficult to manage.
Most TB patients, who are lost to followup,
are lost when diagnosed in hospital and
started on TB drugs at hospital which do not
get followed-up at clinic level. Will we see the
same with ‘down referral’ of ARV patients?
This ‘down referral’ model also implies that
service users have to go to hospitals every six
months to repeat their ARV prescription (by a
doctor). Confusion is likely to occur;
medicines get sent per named patient to
clinics, however, every six months these
medicines have to be sent to hospital and not
to clinics. With a supply chain that is already tested to its limit, this
extra complication will unlikely be managed. A further confusion will
be with monitoring; at six months CD4 and viral load need to be
monitored, so the blood is taken at the hospital. However, where do the
results go – hospital or clinic? Routinely, results of tests taken at the
hospital would come to the hospital. However, the patient will only
return to the hospital after six months. If the results were to be sent to
the clinic, then nurses at the clinic would need to be trained to take
appropriate decisions based on these results, and then there would be
no reason for the patient to have to go to hospital in the first place.
An unresolved problem of this ‘down referral’ model is also who
keeps the outcomes report on the service user? If blood tests are done
at the hospital, then hospitals should report on the six-monthly
outcomes, yet the clinics are the institution mainly treating the patient.
So as soon as outcomes are poor, the blame will be placed on the
clinics. On the other hand, clinic staff will not be motivated to do their
best, as they will not be monitored on the outcomes of the programme
in any case. For the chronic management of an illness, only one
institution should carry the responsibility. According to the Lusikisiki
model, this should clearly be clinics.
Providing ARVs on the model developed in Lusikisiki requires that
a good laboratory courier system is developed for clinics
(especially in rural areas); that nurses are sufficiently trained to
manage opportunistic infections and the basic ARV protocol and are
authorised to initiate ARVs; and that clinics have enough staff.
Some people argue that this is not possible due to lack of
infrastructure. On the other hand, this provides the perfect reason of
why primary care infrastructure should be prioritised now, as outlined
in health policy since democracy. Other people argue clinics cannot
initiate ARVs as there are no doctors at clinic level. On the other hand,
ARV provision should not be slowed down due to perceived need of
doctors to initiate ARVs. What prevents nurses from being empowered
to initiate ARVs? This is a basic decision based on very clear
guidelines that professional nurses can quickly learn once given
the scope. 26 aLQ – March 2006
At clinics and hospital 70% of
patients have CD4 counts more
than 200 cells/mm3 and 91% of
patients have undetectable viral
loads after six months.
Lusikisiki: A model of best practice
A It seems like the ‘down referral’ model underlines the status quo,
rather than pointing to the way in which the Department of Health
should develop, driven by the need of the HIV epidemic.
The HIV programme in Lusikisiki relies strongly on community
mobilisation. This was important to create awareness, break the stigma,
and to ensure good patient preparation for, and adherence to, ARVs.
Treatment literacy provided by adherence counsellors at clinics, and by
the Treatment Action Campaign, through its twenty two branches in
the community, is an essential component.
There is also an active condom distribution campaign that
distributes an average of 120 000 condoms per month at distribution
points in the community, including shops, schools and taverns.
However, health promotion does not limit itself to awareness,
life-skills and condom distribution, but, in the spirit of the Ottawa
Charter of Health Promotion, it also promotes:
Building healthy public policy;
Re-orienting health services; and
Strengthening community action.
Thus, support groups, clinic service users and community
members are empowered to such a level, that they can participate in
discussions about promoting clinic-based ARV services; the need for
adherence counsellors; the need for a more effective PMTCT protocol;
implementing routine testing of HIV-exposed babies with a PCR test;
preferably using fixed dose combination (FDC) ARVs than the present
separate drugs; and the need for a good drug supply. These topics were
eloquently discussed by ARV users at the two-year anniversary of the
ARV programme, which celebrated 1000 people using ARVs, and in
campaigns pushing for better services.
The rural community also participates in ARV Adherence
Committee meetings that evaluates the social conditions of all ARV
users anonymously, and decides on who needs more support. Clinic
Committees have also helped to speed-up
improvement of clinic infrastructure through
renovations and a campaign to have Anglo
Gold Ashante mining company donate its
private clinic in Lusikisiki to the Department
A pilot project like this faces three
a) create an effective, viable model
b) get it approved and implemented on a
c) ensure sustainability of the services
after the pilot period is over
The model of delivery of ARVs is well
established in Lusikisiki. The UNAIDS
programme has identified the programme as a
model of best practice. The model has helped
to influence the ARV services in the Eastern
Cape where a high emphasis is placed on
clinic-based ARVs. However further policy
approval for allowing nurses to
prescribe ARVs, and counsellors to do HIV
testing, needs to be clarified. Due to careful
integration of the HIV services into existing
clinic services, it seems possible that MSF
can leave Lusikisiki by the end of 2006,
without interruptions to services for people
living with HIV.
aLQ – March 2006 27
Hermann Reuter is the Project
Coordinator of the HIV Programme at
the MSF Lusikisiki Programme. For
more information and/or comments,
please contact him on +27 39 253 1611
or at email@example.com.
It seems like the ‘down referral’
model underlines the status quo,
rather than pointing to the way in
which the Department of Health
should develop, driven by the need
of the HIV epidemic.
Lusikisiki: A model of best practice
R Abraham Mazibuko is a small, frail-looking
man who looks older than his 37 years. He
was diagnosed with HIV in 1999, and
qualified to receive a Disability Grant
Abraham lives in Orange Farm, one of
Johannesburg’s more impoverished townships.
Even before he became too sick to work, he
had never had a job. None of the 10 family
members, he shares a home with, are
employed either. Thanks to his Disability
Grant, Abraham became the family’s primary
breadwinner. His R780 a month stipend put
food on the table. But, in July of last year,
Abraham received a letter from the
Department of Social Services, informing
him that his grant had been stopped, and that
he would have to go to his local clinic for a
medical assessment before reapplying.
Until about a year ago, HIV and AIDS
patients in South Africa generally became
eligible for a Disability Grant, when their
CD4 count dropped to below 200. All
Disability Grants were supposed to be
reviewed on a regular basis, but lack of
capacity meant this often did not happen,
leading to a widespread perception among
recipients that their grants would continue
indefinitely. The combined impact of an HIV
epidemic, that is estimated to have infected
21.5% of the adult population, and an
unemployment rate, which has sky-rocketed
over the past decade to over 35%, has seen the
percentage of South Africans accessing
Disability Grants rise between 2000 and 2004
from 1% to 8%. This, linked with government
concerns surrounding fraud, caused the
Department of Social Development to begin
implementing its review process more rigorously, and to rely on a
doctor’s assessment of the patient in addition to a CD4 count.
Abraham went to his doctor for the required assessment, but his
grant application was declined, and three attempts to appeal the
decision have not succeeded.
Abraham is one of approximately 110,000 South Africans now
receiving free anti-retroviral (ARV) treatment through a government
programme that began rolling out in November 2004. It is among the
largest government-sponsored anti-retroviral programmes in the world,
but according to figures released late last year by UNAIDS and the
World Health Organisation1, Abraham is still one of the lucky few. As
of December 2005, 85 percent of the 750,000 HIV-infected South
Africans in need of ARV drugs had yet to begin receiving them.2
It was probably the ARV drugs that improved Abraham’s health
sufficiently so that he no longer qualified for the Disability Grant. In
other words, Abraham now has access to life-prolonging medicine, but
no money to provide for his basic nutrition. In addition, he is feeling
the stress of no longer being able to provide for a family, which
includes four children orphaned by the deaths of his brother and sister.
Despite his doctor’s assessment, Abraham is far from a picture of
health. He can no longer afford medicine to treat a persistent hacking
cough; nor can he afford to take mini-bus taxis (the only mode of
public transport available in many parts of South Africa); and his feet
have become painfully swollen from the daily walk to and from a
community-based HIV and AIDS drop-in centre, where he receives a
‘I come here to eat, because I have no food at home’, he says.
Sheila Mphuting, who runs the centre called Tjhebelo-Pele,
meaning ‘Look Forward’, says she has seen an increasing number of
her clients lose their Disability Grants, since the local clinic began
distributing ARVs, and Social Services began cracking down on its
review process. ‘It’s like they’re killing people purposely because if you
stop the grant, how are these people going to look after
themselves?’ she says.3
After 11 years running an HIV and AIDS organisation in Orange
Farm, Mphuting knows very well that, in many cases, the best way to help
people living with the virus is simply to feed them and argues that ‘we can
see that people aren’t dying from the disease, but from starvation’.4
28 aLQ – March 2006
ARVs versus Social Grants:
The Dilemma of the Poor
ARVs versus Social Grants
RMphuting wonders at the seeming lack of communication between
a health department, that advises patients never to interrupt their ARV
treatment, and a social services department, that effectively penalises
people for following that advice.
Currently, a relatively small number of people living with HIV and
AIDS are affected by these conflicting policies, but Nicoli Nattrass, a
professor of economics at the University of Cape Town (UCT) and
director of the UCT AIDS and Society Research Unit, predicts that
unless the government addresses the issue, by 2010, when it is
expected that all South Africans in need of ARV treatment will be
accessing it, the large scale loss of Disability Grants could precipitate
‘a social crisis’ 5
The Disability Grant is the only form of social security available to
working-age adults in South Africa. Not surprisingly, given the high
levels of unemployment and HIV prevalence, it has become, what
Marlise Richter of the AIDS Law Project calls, ‘a de facto poverty
Richter’s colleague, Chloe Hardy, completed a preliminary study7
in 2005 that looked at to what extent people depend on their Disability
Grants, and what it would mean for people and their families to lose
The study found, that as well as offering people living with HIV the
possibility of a longer life, access to ARVs presented them with a
‘For someone with HIV, who’s been the breadwinner in terms of
being able to access this grant, they are at a crossroads where they
either continue accessing the grant and don’t continue with ARVs, or
access ARVs and get booted off the grant’, Richter says.8
The AIDS Consortium, an umbrella NGO that brings together over
1,000 community-based AIDS organisations in South Africa, has
assembled a social grants task team, partly in response to the crisis that
Nattrass predicts. Reports from member organisations of clients on
ARV treatment losing their Disability Grants have started to trickle in.
So far, there have been no known cases of people choosing to stop
treatment in order to continue receiving the grant. Mphuting, however,
says she does have one female client with a CD4 count of just four,
who has refused to begin treatment, because she is so fearful of losing
the grant, she relies on to support her three children.
‘They panic, because that [grant] money makes a big difference to
their families’, Mphuting says.9
The grant dates back to the apartheid era,
when it was assumed that having regained
one’s health, individuals would return to work
and be able to support themselves. But,
according to Hardy10, most of the individuals,
interviewed for the AIDS Law Project study,
had been unemployed even before they
became too sick to work, and some, like
Abraham, had never held a permanent job.
Hardy states that ‘by getting the disability
grant their family’s economic situation
Supporting this finding, another study12,
conducted in the Cape Town township of
Khayelitsha, found that in households
containing a disability grant recipient, the
grant made up as much as 41% of the family’s
Healthcare workers and caregivers worry
that the loss of the Disability Grant could
have disastrous consequences, not only for
family budgets, but for the health of their HIV
Toni Gloria, an affiliate of the AIDS
Consortium, who runs a community-based
organisation for people living with HIV and
AIDS in Soweto, says that five of her clients
have lost their grants in recent months. ‘When
the grant stops, there’s no food. They start to
get stressed and then they get sick’, she says.13
Speaking from the HIV/AIDS Clinic at
aLQ – March 2006 29
…85 percent of the 750,000 … in
need of ARV drugs had yet to begin
…a health department,
that advises patients
never to interrupt their
ARV treatment, and a
people for following
ARVs versus Social Grants
Helen Joseph Hospital in Johannesburg,
Sister Sue Roberts confirms that without
grant money, many of her patients cannot
afford the cost of travelling to the clinic every
month to pick up their drugs. She also fears
that, without the grant, they will not be able to
follow the nutritional advice they have been
The government’s treatment plan includes
a nutritional component, but, according to a
report released last year by the Treatment
Action Campaign, implementation has so far
been ‘fragmented, uneven and beset by
problems’.15 Only the malnourished qualify
for nutritional supplements, and governmentissue
food parcels are only provided to
patients as a short-term measure and then,
Several participants in the AIDS Law
Project study described how their health had
improved, since they started receiving
Disability Grants, because they were able to
buy healthy foods, they previously considered
unaffordable. Some expressed concern that,
without the proper nutrition the grant gave
them access to, they would become sick, even
with ARV treatment.16
Several groups have pointed out that
South Africa’s welfare system too closely
resembles a ‘lottery’, in which only families
‘lucky’ enough to include a pensioner, a child
under 14 years, or someone sick enough to qualify for the Disability
Grant have access to social security. The Treatment Action Campaign,
the AIDS Consortium, the AIDS Law Project and COSATU (South
Africa’s largest trade union) are among a number of organisations that
have formed a coalition to support the introduction of a Basic Income
Grant (BIG) for all South Africans, regardless of their HIV status.
Coalition members argue that a basic monthly grant would remove
perverse incentives to become HIV positive, or to refuse ARV
treatment, and provide equally for all families in need of support.
Nattrass estimates that providing the subsistence-level grant would
require an increase in taxation equivalent to an extra 8% on VAT. ‘The
point is, there’s going to be a tax burden and we all have to share it’,
Chief Director of the Department of Social Development’s
HIV/AIDS Unit, Dr. Connie Kganakga, acknowledges that there are
problems surrounding the Disability Grant, but says that the Basic
Income Grant is ‘not yet on the table, for reasons that the government
can’t afford it right now’.18
But, Pumi Yeni, national organiser of the BIG Coalition, argues that
BIG could actually save the government money in the long term, by
postponing the need for ARV treatment. Yeni19 states that:
If you give people food you’re ensuring a healthier nation, so
obviously by introducing a Basic Income Grant you’re giving all
those HIV positive people whose CD4 count hasn’t dropped to
200 a chance to go on longer before they need ARVs.
1. UNAIDS/WHO. 2005. AIDS Epidemic Update, December 2005.
2. UNAIDS/WHO. 2005. AIDS Epidemic Update, December 2005.
3. Author’s interview.
4. Author’s interview.
5. Nattrass, N. 2005. ‘Trading off income and health: AIDS and the Disability Grant in South Africa’.
Presented at the 2nd South African AIDS Conference, ICC Durban, 7-10 June 2005.
6. Richter, M. 2005. ‘Disability Grants and People With HIV/AIDS: What Happens with the Advent of
Treatment?’ Presented at the 2nd South African AIDS Conference, ICC Durban, 7-10 June 2005.
7. Hardy, C. 2005. Choosing Anti-retrovirals or Choosing Grants: Preliminary research on HIV and Social
Security. AIDS Law Project, Centre for Applied Legal Studies, University of Witwatersrand.
8. Author’s interview.
9. Author’s interview.
10. Author’s interview.
11. Author’s interview.
12. Coetzee & Nattrass, 2004
13. Author’s interview.
14. Author’s interview.
15. Treatment Action Campaign/AIDS Law Project. 2005. ‘Let Them Eat Cake – A Short Assessment of
Provision of Treatment and Care 18 Months After the Adoption of the Operational Plan’.
16. Hardy, C. 2005. Choosing Anti-retrovirals or Choosing Grants: Preliminary research on HIV and
Social Security. AIDS Law Project, Centre for Applied Legal Studies, University of Witwatersrand.
17. Nattrass, N. 2005. ‘Trading off income and health: AIDS and the Disability Grant in South Africa’.
Presented at the 2nd South African AIDS Conference, ICC Durban, 7-10 June 2005.
18. Author’s interview.
19. Author’s interview.
30 aLQ – March 2006 ARVs versus Social Grants
… South Africa’s
welfare system too
closely resembles a
‘lucky’ enough to
include a pensioner, a
child under 14 years,
or someone sick
…have access to social
Susie Clark is the Acting Executive Director of the
AIDS Consortium. For more information and/or comments,
please contact her on +27 11 403 0265 or at
High rates of unemployment and poverty in South Africa mean that
an opportunity to earn R1 000 to R1 700 per month as a volunteer
HBC worker would constitute a significant amount of a household
income, which otherwise might not exist at all. Mbambo 2
argues that many previously unemployed volunteers see voluntarism as
a way to access employment. Though voluntary HBC may become an
important access to income for many households, not much attention
is paid to the challenges experienced by the HBC workers, including
facing stigma in their communities, overworking, often working
without access to necessary training and resources, and the intense
emotional and psychological stress that the work entails.3
HBC workers are generally responsible for basic nursing care,
though not prescribing or administering medication. As one HBC
worker describes the situation:
We are aware that our service is not sufficient. At times we find
people that are in pain. We cannot offer those people a single
painkiller because we have nothing to give them. The government
must provide us with medical kits with common tablets that don’t
need any prescription. It is not enough to clean the house and
cook food for a sick person and then leave him/her in pain. We go
to the river to wash their clothes and also give them a bath, but
the pain is still there. The government must do something about
this. Our service is not complete. [Campbell et al, 2005]
Van Dyk [2001:329]4 identifies the lack of knowledge of medicine,
disease and treatment as the ‘potential problems’ for HBC work. It also
seems that in many cases basic resources, such as gloves, disinfectant
and cleansing materials are not available to volunteers. This seems to
raise the question of whether or not HBC volunteers provide adequate
healthcare, especially since there is not enough collaboration between
HBC volunteers and professional medical personnel to ensure that the
needs of patients are well looked after.5 Cullinan  puts it
eloquently when she argues:
…if state health facilities are simply going to discharge
AIDS patients and assume that they will be cared for at home,
HBC will simply be a brutal form of privatisation where the
poorest communities are expected to bear the greatest burden
of the epidemic.
Generally though, there are still questions
about the training of HBC workers, and even
if their job is to only provide basic nursing
care, whether or not the skills imparted are
enough. Cullinan  argues that some
DOH training is only five days long, as
compared to six month training provided by
an NGO doing HBC work with volunteers.6
With training of five days or more, the
question remains whether or not HBC
volunteers can be fully trained in the skills
necessary for the work, and whether or not
any attempt is made to raise awareness of
the importance of fundamental rights, such
as the right to confidentiality, and to nondiscrimination.
Stigma still affects both the HBC
volunteers in their approach to patients, and
the HBC volunteers themselves, who face
stigma in their communities, because of the
work they do. An extreme example of the
measures taken in order to avoid the potential
stigma is a training course run in a city with a
high prevalence rate where the word ‘AIDS’ is
not used at all.7 Some programmes have
shifted their focus from starting out focussing
solely on HIV and AIDS to including other
illnesses, such as TB and cancer, in an attempt
to overcome stigma in communities that
hampers the delivery of care. Another
example is the reluctance of HBC workers to
join treatment programmes, out of fear of
participating in the same ARV programmes as
their clients, in case community members get
to know about their HIV status.8
HBC volunteers tend to be largely women.
aLQ – March 2006 31
Home-Based Care: Realities and challenges
Home-Based Care: Realities
According to the Department of Health (DOH), 40,000 volunteer home-based
care (HBC) workers are already active in South Africa, and plans are in place to
recruit 122,000 more volunteers in the next five years. These volunteers are paid
a stipend, ranging from R1 000 to R1 700 per month1, and are often trained and
managed by NGO’s contracted by the department.
A Women are generally the caregivers in
households, and this is extended to doing
more ‘women’s work’, including household
chores, while caring. The fact that HBC
volunteers are generating income for their
households also introduces an interesting
dynamic, since the type of work is typical of
gendered roles. The work itself is not highly
valued and does not get much public
recognition in communities. An interesting
argument, though taken from Zimbabwe,
could equally apply to South Africa:
If men participate more in home-based
care, it may reduce the stigma that is
often faced by people living with HIV
and AIDS. Their involvement would
send positive signals since many people
take more notice of what a man says
than a woman. [Dongozi, 2005]
The continued undervaluing of women’s
work, and the fact that communities ‘take
more notice’ of what a man says, signals that
there is no formal or substantive equality
around the issue of who does home-based
Although some organisations have developed detailed policies on
volunteer management, there is no enforceable legislation, or
departmental guideline, that regulates volunteer management and,
because of this, in many cases there is no recourse for volunteers when
their rights are violated. Additional burdens are carried by some
HBC volunteers, as the care work that they are doing limits their
opportunities for job searches, and according to Akintola [2004:4]9
many volunteers are not even accessing the stipend and use their
own scarce resources to care for, feed and sometimes clothe,
transport and pay for funeral costs of people that they are caring for.
As and when exploitation of the volunteers takes place, it might be
a difficult choice in some households to weigh up the value of the
income versus addressing any violation of the rights of the HBC
worker, because of the ‘stipend’ that is paid.
The question of protection both for the volunteers and the
communities and people they serve is a vital one. It is clear that some
form of national or DOH policy that draws on the experience of
current HBC programmes, is necessary, so as to ensure that the rights
of volunteers, and the people they serve, are protected.
Campbell, C., Nair, Y., Maimane, S. & Sibiya, Z. 2005. ‘Home Based
Carers: A vital resource for effective ARV roll-out in rural communities?’.
In AIDS Bulletin. March 2005, Vol. 14, No. 1.
Cullinan, K. 2000. ‘Community-based care’. In HST Update. Issue 58,
12. Health Systems Trust. (http://www.hst.org.za/publications/403)
Dongozi, V. 2005. ‘Men in demand for home-based care in Zimbabwe’.
In HST News. 2005-05-09. (http://www.hst.org.za/news/20040800)
1. ‘Volunteer caregivers being exploited, says study’. PlusNews. 2005/01/21
2. Mbambo, B. 2005. ‘Unpaid should not mean unsupported’. In Children First,. Issue 63
3. Akintola, O. 2004. ‘A gendered analysis of the burden of care on voluntary and family caregivers in Uganda
and South Africa’. HEARD Policy Paper. Durban University of KwaZulu Natal. pp. 23-29.
4. Van Dyk, A. 2001. ‘Family and Community Involvement’ in HIV/AIDS Care and Counselling: A
Multidisciplinary Approach. Cape Town: Pearson Education.
5. Akintola, O. 2004. ‘A gendered analysis of the burden of care on voluntary and family caregivers in Uganda
and South Africa’. HEARD Policy Paper. Durban University of KwaZulu Natal. p. 43.
6. Cullinan, K. 2000. ‘Community-based care’. In HST Update. Issue 58, 12. Health Systems Trust.
7. Van Dyk, A. 2001. ‘Family and Community Involvement’ in HIV/AIDS Care and Counselling: A
Multidisciplinary Approach. Cape Town: Pearson Education. p. 329.
8. Akintola, O. 2004. ‘A gendered analysis of the burden of care on voluntary and family caregivers in Uganda
and South Africa’. HEARD Policy Paper. Durban University of KwaZulu Natal. p. 32.
9. Akintola, O. 2004. ‘A gendered analysis of the burden of care on voluntary and family caregivers in Uganda
and South Africa’. HEARD Policy Paper. Durban University of KwaZulu Natal.
32 aLQ – March 2006
…HBC will simply be a
brutal form of
privatisation where the
are expected to bear
the greatest burden of
use their own scarce
resources to care for,
feed … and pay for
funeral costs of
people that they are
Home-Based Care: Realities and challenges
Emma Harvey is the Trainer/Facilitator at the AIDS Legal
Network (ALN). For more information and/or comments,
please contact her on +27 21 447 8435 or at firstname.lastname@example.org.
aLQ – March 2006 33
Nkomazi: Realities and demographics
Consider the following:
The Nkomazi Voice, a weekly community
newspaper servicing a rural population in
Mpumalanga, reported the following stories in
their 3rd March 2006 issue:
‘16 year old rapes 13 year old’, ‘15 year old
raped in the bushes’, ‘14 year old raped 5
times’, ‘4 year old raped’, ‘Biological father
rapes his daughter’, ‘23 year old raped’,
‘Mother narrowly missed being raped by her
son’ – accompanied by a police statement
saying statistics now show that 3 out of every 5
women have been raped, while one education
circuit covering 13 high schools reported that
324 learners fell pregnant in 2005.
A few issues prior to this, the newspaper
reported doctors from the local hospital saying
that the Nkomazi region experienced an HIV
infection rate of approximately 47% amongst the
sexually active population.
One NGO working with AIDS reported that they
make an average of 20 coffins a month to service
only their patients.
There were no hands raised when a group of
children, aged between 6 and 10, were
questioned on whether they had breakfast,
maybe 20% indicated they had lunch and only
80% had supper every night.
A few years ago, the above information would have
illicit gasps of shock, expressions of disgust, anger,
sympathy, or, perhaps, even shame. No more. The
deafening silence bears testimony to the protective
shroud of complacency that the community is
wrapping around itself as a self-defence mechanism
in facing a dilemma without a solution.
The horrific significance of this non-reaction is that
the Nkomazi community and, perhaps, society in
general, has become immune to the social
deprivation implicit in these situations. People are no
longer shocked at abuse, they ignore the HIV figures
under a fatalistic approach to death, and funerals are
no longer a time for deep mourning. As for poverty, for
some it is a situation from which to claw their way out
by any manner possible, whether morally legitimate or
not, or for others, a situation so filled with hopelessness
that they merely exist, not caring what happens to
them. This latter situation spurring many women to
abdicate from a platform of self-respect, and for a few
Rands, succumb to brutal physical, psychological and
emotional abuse from unscrupulous men who prey,
with impunity, on their vulnerability.
The Nkomazi community occupies a small finger of
land that juts down from the southern border of the
Kruger National Park and borders on Swaziland and
Mozambique. This approximately 250 sq/km of land is
home to an estimated 800,000 people living in 34
villages. It lies 100 kilometres east of Nelspruit and on
its eastern border is the notorious electric fence built
during the years of war in Mozambique, which is
still ‘live’ today. Nkomazi’s prime claim of tourist interest
is the monument erected to Samora Machel
commemorating an African leader, who is seen as an
icon of the struggle in the liberation of Africa. The
monument itself epitomises the character of the
Nkomazi community. Set on a desolate and barren
mountain, hollow tubes play mournful music as wind
swirls around them, the notes, a grim reminder of the
futility of the war.
The Nkomazi community stems from the previous
homeland called Kangwane. Few communities
demonstrate the raw results of historic blunders as
blatantly as the Nkomazi community.
Firstly, the border with Swaziland divided families to
such an extent that the chief of Matsamo divides his
time between the two countries and, with the cultural
and economic development of the two countries
moving at different speeds, along with his traditional
Where to from here…?
Provincial view A
leaders, he struggles to relieve the abnormal tensions,
which arise in families split apart by an arbitrary line
drawn on a map thousands of miles away. A particular
challenge now facing the community is the rise in
numbers of vulnerable children, who would naturally
live with an extended family when necessary, but who
are now unable to do so, due to the legal requirements
of the two countries. Cross border ‘appearance’ and
‘disappearance’ of children are frequent.
Secondly, the 15 year long Mozambique war
resulted in thousands of refugees pouring into the
area seeking shelter and employment.
Thirdly, the Apartheid government re-settled
hundreds of displaced people in this remote area and
developed a 20 km belt of strong white-owned
commercial sugar, citrus, vegetable and game farms
along, what is now, the N4 Maputo corridor running
between Malelane and Komatiport. These farms
provided employment to the local population, but
also attracted immigrants, both legal and otherwise
from the neighbouring countries. The influx of people
across the borders continues, adding further burdens
to economic and infrastructural development of the
area. Many of the people have relatives in Nkomazi
and, thus, have a starting base, but they leave their
own families in their country of origin and start new
families in South Africa. However, the South African
families themselves are often in desperate situations
and are forced to live in poverty. Children born of
these families are vulnerable and some are
abandoned. Disease often plagues the families due to
their living conditions. Parents, who then die as illegal
immigrants, leave their children with no legal status or
visible means of support.
And lastly, with the advent of democracy in 1994,
the socio-political dynamics of the commercial
farming sector in Malelane and Komatiport changed
from being white run to black run, raising racial tensions
that simmer under the surface of an otherwise
relatively peaceful community. Unfortunately, Nkomazi
experienced a ‘brain drain’, with better skilled people
being deployed in provincial government, leaving a
municipality that sadly lacks the ability to deliver. This
resulted in the Nkomazi local government being
placed, in 2005, under special curatorship with the
national government’s Project Consolidate. Reports
of corruption and scandals have continued to surface,
deflecting energies and attention from delivering
much needed infrastructure and further fragmenting a
society struggling to find its own identity.
Traditional leaders and healers still play a pivotal
role in the community, although their authority is being
eroded with improved education and economic
independence of the people. Loyalties of the youth
vacillate between adhering to cultural and traditional
norms and following the modern trends seen on TV
and heard on radio. The society continues under a
strong male chauvinist influence. A high percentage
of women show fortitude and strength in their ability
to nurture and care for children, albeit under difficult
and strenuous situations. However, most women still
shrink from engaging in activities that involve peer
competition with males. For example, in community
meetings, it is still common for women to sit on one side
and men on the other with few women contributing.
Women have held government posts, such as mayor
of Komatiport, and a representative in the
Mpumalanga legislature, but one wonders, if the
appointments were a sop to meeting quotas, or
genuine reward for ability.
The major employer in Nkomazi is the government,
supporting 134 schools, 20 clinics, 2 hospitals, and
the public works programmes, as well as Eskom and
Telkom. The annual municipal salary budget is R80
million, excluding educators and health workers. Only
a small number of sub-standard RDP houses have
been built. Some improvements to schools are
visible, but the community is angered by the general
lack of infrastructure delivery, particularly in road
maintenance and provision of water. Electricity has
been installed in approximately 50% of homes and
communication through cell phones is common
place. There is limited access to the internet. The only
local employment is on farms and with a few retailers.
The area has two shopping centres, with a Spar and
a Score and furniture chain stores. There are no
industries in the area apart from the TSB (Transvaal
Suiker Beperk), a sugar mill, which employs
approximately 2 400 people. Both the recent climatic
changes, drought last year and near floods this year,
and government legislation surrounding farming and
land issues, is resulting in waves of retrenchments
34 aLQ – March 2006 Provincial view
aLQ – March 2006 35
from the farms, thus, contributing to the over 70%
unemployment rate in the community.
Unemployment and poverty, combined with the
impact of HIV and AIDS, are the major challenges
facing the community.
However, the façade of the community presents a
different picture. Driving along the main road from
Malelane to Piggs Peak, in Swaziland, one would be
forgiven for thinking that the reports of poverty are
exaggerated. The houses built by government
employees, and contractors, would sit comfortably in
any A-income suburb of Johannesburg. But delve
just 500m behind, and the sight of single mothers
lying sick in shacks, while being cared for by their
children is not uncommon.
It is estimated that 53% of the population is under
the age of 19. More than 70% of families are
‘dysfunctional’, including single parent homes,
children living with extended families (mainly
grandparents), and mothers with children from more
than one man. There are still an above average
number of teenage pregnancies, with many of the
girls dropping out of school to give birth. Sexual
activity starts from as young as 12 years old. Abuse
of children, rape and incest are reportedly way above
the national average.
The above paints a morbid picture of a society
impacted by influences from many different quarters.
But the capacity of the human spirit to overcome this is
strong and many positive success stories can be told.
Efforts to address the realities of Nkomazi
Thembalethu Home-Based Care (THBC), an NGO
founded in 1999, has adopted a holistic approach to
the community needs, which are exacerbated by
poverty and HIV and AIDS. THBC offers a real, and
tangible, holistic solution through four focused
activities, namely home-based care, orphan and
vulnerable child care (OVC care), HIV and AIDS
prevention (Youth in Action), and food gardens. The
specific demographics, and community dynamics,
dictated the best approach to successful
implementation of the projects, and THBC has
adopted a ‘best fit’ policy to its operations. THBC’s
positive impact on the community has won support
from local, national and international organisations.
THBC’s work, which targets the lower income
groups, stretches over 20 villages and directly
benefits 400 people monthly with secondary
beneficiaries of approximately 10,000. However, the
programmes reach the whole community.
The home-based care division offers palliative
care through a network of 300 care supporters, who
have been trained in first-aid, first level primary
healthcare, and in trauma identification and
counselling. The network is supported through the
head office, by specialist co-ordinators, who have
graduated from being care supporters. Over 8,000
patients have been assisted through the home-based
care programme. Destitute families are provided with
basic food and encouraged to start a food garden. In
the event of a death, a coffin is offered and THBC
conducts the funeral.
Children who are left are continually cared for by the
care supporter. THBC has over 300 orphanheaded
homes. These are homes where the eldest
child can be from 14 to 25 years old and looks after 3
to 4 siblings. THBC has over 4,000 children on its database,
and offers an after-school programme, feeding
schemes and special one-week trauma
counselling and life skills training programmes for
orphans. 17 small brick homes have been built and
many more repaired. Children are also assisted with
school issues and uniforms, and first level medical care.
THBC offers assistance with obtaining legal
documents for the children, so that they can receive
government child grants. This process is long and
tedious and fraught with frustrations, especially when
the parents had no documents, or if the parents
cannot be found and the children were left with the
grandmother, who, in turn, has no papers. The issue
of land/home ownership for orphans is a thorny one,
as modern norms clash with traditional practices. In
the past, when a husband died, the house reverted to
his family, many of whom threw the widow and
children out. THBC in conjunction with TRAC (The
Rural Action Committee) in Nelspruit, is working on
obtaining legal possession for the orphans, as part of
The government’s child grant system, a lifesaver in
itself, is spawning a culture of negative independence
amongst the youth. Without adequate training and
36 aLQ – March 2006
management, the eldest siblings are using the money
to purchase cell phones, TV’s and other luxury items,
while the younger members go hungry, unclothed
and unfed. A family of 5 children can receive over
R2000 per month. Care supporters are turned away
from the house, and there are too few social workers
to handle all the cases. Some of the youth have had
the ingenuity to become money lenders! THBC now
runs workshops for the ‘heads’ of orphan-headed
households to provide capacity to run the homes.
In other situations, unscrupulous extended family
members are gaining access to the grants on behalf
of the orphans and then using them for their own
children at the expense of the orphans.
The primary challenge faced in handling the HIV
and AIDS issue is related to cultural and traditional
practices. The influence of traditional healers and
sangomas is very strong in each village. The
traditional healers are steeped in the Swazi culture
and do not acknowledge the reality of HIV, thus, when
patients present with signs of HIV, or opportunistic
diseases, the healer does not provide adequate
medication and does not encourage HIV testing.
Men are reluctant to use condoms saying that
they won’t ‘put a shield on my bull’. Poverty drives
young girls to offer ‘sex for money’, and to fall
pregnant in order to access the government grant.
There is still very strong stigma attached to HIV
and AIDS. Although people are beginning to admit
that someone died from AIDS, there are no role
models in the community who have ‘come out’, and
this, in spite of the fact, that hundreds of people have
been tested for HIV and that the hospital has
currently over 400 people on ARVs.
The stigma stems from a number of issues. One
of these is the reluctance of families to discuss sex
openly. Thus, although parents may be aware of the
sexual behaviour of their children, and even have
knowledge that their partner is engaging in multiple
relationships, they are in denial. Another powerful
influence in propagating stigma is the belief that
illnesses come from a curse. The fear of being
‘witched’ or ‘cursed’ permeates all aspects of
society, spreading into the work environment and
making open communication amongst team
members difficult. Another example of stigma in the
society, is the treatment of the physically and mentally
impaired, who are ‘kept hidden’, for fear of people
thinking that the parents have done something wrong.
THBC has introduced a number of initiatives to
combat the onslaught of HIV and to address the
situations described above.
The Nkomazi Voice was started as a means of
teaching about HIV, while simultaneously encouraging
debate, imparting knowledge, and offering a challenge
to the community to participate in community
building activities, such as sports, SMME
development, improved education standards and
general dialogue, and also exposing a number of
myths. The paper prints weekly and has published
124 editions with an estimated readership of 40,000.
The Youth-in-Action programme, with the motto
‘Challenged to take control’, was launched as the HIV
awareness and prevention programme, which focuses
on the A & B message (Abstinence and Be faithful).
The goal here is to offer youth an alternative lifestyle
along with the message. Thus, a number of
extra-mural and life skills activities have been
established. 400 peer counsellors have been trained
through the Center for the Study of AIDS. They are
now establishing support circles in each village to
encourage HIV testing. Clubs now run throughout the
area offering Latin/American dancing; performing arts;
cutting CD’s with ‘wannabe stars’, our local version of
Pop Idols; sports, including chess, volleyball and
basketball; and debating. The youth have risen to the
level of competing and winning in national competitions
and are now running a YiA basketball league and a
chess tournament, attracting over 100 children.
Workshops are held regularly for all activities and
the youth are becoming increasingly competitive
and proud to be winners. This is contributing to
rediscovering the value and dignity of each member
of the community.
Heather McKallin is the Development
Consultant at the Thembalethu Home-Based
Care. For more information and/or comments,
please contact her on +27 13 781 4120 or at
aLQ – March 2006 37
The large increase in the number
of orphans, the economic disruption
of households, the increase in
mortality from TB and other causes,
could as well contribute to higher
mortality and an even lower rate of
With the national adult prevalence
rate at 14.4%, the impact is
particularly severe amongst adults in
the prime working ages, and amongst
children under the age of five years.
Current estimates show 80,000
children between 0 and 14 years are
infected. However, AIDS has more
than tripled the number of adult
deaths to nearly 80,000 a year. Using
1998 population and housing census,
life expectancy in Malawi was
estimated at about 40 years, but if
people were not dying from AIDS, the
life expectancy would have been
about 56 years.
As a member of the United Nations,
Malawi has signed no less than 11 other
previous commitments on HIV and AIDS.
This is an indication of the seriousness
that government places on the importance of stopping further
One of the commitments Malawi has signed is the
UNGASS1 Declaration of Commitment on HIV/AIDS (2001).
However, the country has experienced some successes and
difficulties in meeting the declaration targets.
The Declaration, in Section 47, says:
By 2003, establish time-bound national targets to achieve
the internationally agreed global prevention goal to reduce
by 2005 HIV prevalence among young men and women
aged 15 to 24 in the most affected countries by
25% globally by 2010 (…).
Malawi is considered one of the highly infected countries in
The Declaration further states in Section 62:
By 2003, in order to compliment prevention programmes
that address activities which place individuals at risk of HIV
infection, such as risky and unsafe sexual behaviour and
injecting drug use have in place in all countries strategies,
policies and programmes that identify and begin to
address those vulnerable to HIV infection, including
underdevelopment, economic insecurity, poverty, lack of
empowerment of women, lack of education, social
exclusion, illiteracy, discrimination, lack of information
and/or commodities for self-protection, and all types of
sexual exploitation of women, girls and boys, including for
commercial reasons. Such strategies, policies and
programmes should address the gender dimension of the
epidemic, specify the action that will be taken to address
vulnerability and set targets for achievements.
HIV and AIDS in Malawi:
An analysis of treatment initiatives
Malawi registered the first HIV case in 1985. By 1998, the figure had risen to 365,000 and
in 1999 to 735,000. Currently, nearly 1,000,000 people are said to be living with HIV.
However, the epidemic, in addition to its direct impact on mortality, also has some
secondary influence on death rates.
Malawi has joined other nations in implementing the
UNGASS Declaration of Commitment on HIV/AIDS. Malawi,
through the National AIDS Commission, can proudly announce
to the world, she has responded positively to the Declaration,
because the country has developed foremost, the National
AIDS Policy, which has put in place preventive and mitigation
strategies for HIV and AIDS, through prevention, care, support
and treatment strategies. However, the challenges are many for
Malawi to achieve the targets set by the Declaration of
Commitment, as a response to the epidemic.
AN OVERVIEW OF THE HIV AND AIDS
PANDEMIC IN MALAWI
Malawi’s development as a country has been affected in
many ways, as the country continues to lose human
resources through the epidemic. Although Malawi is the
hardest and highest hit country with AIDS, there is light at the
end of the tunnel.
HIV and AIDS has taken a heavy toll on the population,
where approximately three quarters of infections are found
amongst adults, between the ages of 20 and 40 years.
There is growing commitment at all levels to fight HIV and
AIDS; policy and institutional frameworks are in place; sufficient
know-how has been acquired from the various initiatives
supported over the years; and there is an increase in resources
for HIV and AIDS. However, very little resources are reaching the
An HIV prevalence rate of approximately 16% in a
population of about 10 million people in the 1990’s, has now
been estimated at about 14.4% for the year 2003. Yet, there
is concern that there is a growing number of new infections
taking place amongst some vulnerable groups.
Recent statistics in Malawi indicate that the highest
infections occur amongst women and girls between the
ages of 15 and 40 years. Prevention of new infections has
been recognised as a major component in the halting of the
pandemic, and the Declaration states prevention must be
the mainstay of the response. In terms of maternal health
in Malawi, statistics provided by the World Health
Organisation (WHO), indicate that 418,000 women get
pregnant every year; 1,150 women
get pregnant every day; and
approximately 50 women get pregnant
every hour. Furthermore, 5,000 maternal
deaths occur every year; 13 maternal
deaths occur every day; and 1 maternal
death occurs every 2 hours. The report
also indicates that Malaria, Anaemia,
Tuberculosis, and HIV/AIDS are indirect
causes of maternal deaths. It is this
vulnerable group (women) that is most at
risk, in terms of being infected and
affected by HIV and AIDS.
In Malawi, every year, approximately
40,000 newborn babies get infected with
HIV, through mother-to-child transmission
(MTCT), and of the estimated one million
orphans, 500,000 have lost one, or both,
of their parents due to AIDS.
Why give so much attention to the
children? Everybody is aware that
children are the future of any nation.
Hence, their welfare should be a
priority of any democratic government.
Of utmost interest, is Malawi
Government’s commitment to the
welfare of children, orphaned by the
HIV and AIDS pandemic. In this regard,
the Ministry of Gender, Child Welfare
and Community Services launched a
new Orphan Policy and a National Plan
of Action on Orphans in June 2005.
The Policy is helping the promotion of
community-based orphan childcare
centers, as opposed to institutional
orphanages. The Action Plan would,
amongst many other interventions,
encourage food village banking as a
means of ensuring food security at
village and community level. In practical
38 aLQ – March 2006 Regional view
aLQ – March 2006 39
terms, the communities are given
agricultural inputs to grow various crops,
and are encouraged to create food
banks after harvest. The implementation
of these interventions is what the country
is yet to establish!
As part of government’s responsibility
to ensure that all persons infected by HIV
and AIDS live a normal life and access
treatment in Malawi, the government, in
May 2004, began providing free antiretroviral
(ARV) medication at public
health facilities, hoping to reach 44,000
people living with the virus by June 2005.
90 health facilities are currently
providing ART in Malawi with funding
from the Global Fund. Of these, 60
health facilities, including all Central,
District and major Christian Hospital
Association of Malawi (CHAM), Malawi
Defence and Malawi Police hospitals,
will provide free ART, while the 30
private sector health facilities will
provide ART at a subsidised rate of
MK500 (US$4) per patient per month.
But the country’s ARV rollout
programme has been plagued by delays
of ‘up to eight months’ in supplying the
drugs, which had led to people in urgent
need of treatment being forced to wait
before accessing the life-prolonging
medication. ARV shortages in the public
health system meant that people, who
had reached the stage of AIDS, were told
to ‘go home and wait’. The fear was that
if the procurement system did not
improve, the problem of drug shortages
and delays, in a country with an HIV prevalence rate of 14.4%
and 150,000 people in need of treatment, would not be solved.
Currently, Malawi is purchasing ARVs with a US$20 million
grant from the Global Fund to fight TB and HIV/AIDS, which
stipulates that the United Nations Children’s Fund (UNICEF)
should be used to procure the medication. Nevertheless, a large
consignment of drugs was expected by May 2005, and all 59
treatment sites would begin providing ARVs from June 2005
onwards. About 19,000 people are accessing the medication
through the public sector, as well as treatment initiatives by aid
agencies like Medicines Sans Frontieres (MSF). In terms of the
World Health Organisation’s ‘three by five’ plan, to provide
treatment to three million people in the developing world by the
end of 2005, Malawi should have 80,000 people on ARV
therapy by the end of 2005. This target was virtually impossible
to achieve, partly, because the medication had arrived later than
planned, but also as a result of crippling staff shortages in the
Through the HIV and AIDS treatment initiatives, it is pleasing
to note that as of 30th November 2005, about 32,000 patients
were started on ART in 60 health facilities and with a constant
supply of drugs, the number of Malawians accessing, and
keeping on, treatment should continue to grow steadily. To
show goodwill, the Malawi Government, through the National
AIDS Commission, is urging all members of the general public
to go for HIV testing, and, if needed, for assessment at the
nearest hospital to determine whether or not ART needs to be
started. In this regard, a total of 23 private and company owned
clinics have been accredited and certified by the Malawi
Government, in collaboration with the Malawi Business
Coalition Against HIV/AIDS (MBCA), to start providing ARVs at
a cost of MK500.00 (the equivalent of US$4.00) per month.
Other services, such as consultations, procedures, laboratory
services, drugs other than ARVs, are being charged according
to the prevailing prices in various clinics. The clinics have limited
numbers of new patients starting on ARVs each month.
The ‘light’, being referred to in the beginning of article, refers
to the arrival of a consignment of anti-retroviral (ARV) drugs for
the private sector. With this consignment, and in line with the
Global Fund principle of promoting public/private partnership,
30 private sector health facilities started providing anti-retroviral
(ARV) drugs at a subsidised rate of MK500 (close to US$4.00)
per month. This private sector anti-retroviral therapy (ART)
programme is being coordinated by the Malawi Business
Coalition Against HIV/AIDS (MBCA).
CHALLENGES MALAWI IS FACING
IN THE FIGHT AGAINST THE HIV AND
That Malawi is one of the countries hit hard by the HIV and
AIDS pandemic is not news. The level of awareness amongst
the people is high. Many people know that sexual intercourse
continues to be the number one mode of HIV transmission. But
the awareness is not translating into noticeable sexual
behaviour change. Some people in Malawi are still engaging in
unprotected sex with multiple partners. Some HIV infected
women are intentionally giving birth, even when they are not on
Nevirapine, the drug that reduces the risk of mother-to-child
transmission. Sexually transmitted diseases (STDs) and
infections (STIs) are also still a matter of concern in the Malawi
According to a recent survey by the National AIDS
Commission, people are not changing their sexual behaviour.
The findings show that knowledge levels are very good, but
behaviour change is still a challenge. According to this survey,
the youth, aged between 15 and 24 years, particularly girls, are
at great risk of contracting HIV, because of intergenerational
sex, popularly known as ‘zidyamakanda’ in our native language.
The challenge is, therefore, placed on NGOs, the
Faith-based Organisations (FBOs) and the community-based
organisations (CBOs) to come up with more innovative
strategies and creative interventions to influence speedy sexual
behaviour change. Only then would the country be able to
arrest the spread of HIV, currently at 14.4% per annum.
Another challenge is the current boom of ‘fake AIDS drugs’
in Malawi, spearheaded by Malawian herbalists and other
foreign clinics. Many people living with HIV and AIDS are forced
to rely on illicit drugs, in a bid to treat various opportunistic
illnesses, ease suffering, and prolong their lives. It has been
noted that some of the ‘fake drugs’, flooding the country’s
parallel market, have potentially
disastrous after-effects. This is due to
lack of recognised cheap drugs in public
hospitals, clinics and health centers,
coupled with their exorbitant costs in the
marketplace. Attempts, by authorities, to
crack down on the illegal sales of such
drugs have, over the years, proven
Towards the end of 2004, a drug
called ‘Chambe’, discovered by a
Malawian herbalist, George Liunde
Kumbuyo, who was then based in East
London, South Africa, claimed to be
doing well and working wonders on
patients infected by AIDS. Malawi health
officials strongly dispute Kumbuyo’s
claims that ‘Chambe’ is a cure for AIDS.
Another drug, which is also claimed to be
responding to AIDS, and selling like ‘hot
cakes’ in some Chinese clinics, is Conthy
Capsule. Conthy is a traditional Chinese
medicine, developed by the Beijing
Jinjiang Xini Pharmaceutical Company. A
packet of 20 Conthy Capsules cost up to
K5,000 (the equivalent of US$4.00). This
is not a registered drug in Malawi.
There is a host of other drugs, such
as Rifampicin, IHN, Maridiana, African
potato from Zambia, and Chisupe
claimed to be curing AIDS, but this is just
a myth! Instead, all AIDS infected people
in Malawi have been advised and
encouraged to seek ARVs from public
clinics, free of charge, or from private and
selected privately owned clinics, for
affordable subsidised ARVs.
Lastly, another devastating challenge
Malawi is facing in its fight against HIV
and AIDS are the cultural practices that
40 aLQ – March 2006 Regional view
aLQ – March 2006 41
exacerbate the spread of this pandemic.
In brief, these include:
Polygamy – a practice, by which a
man married more than one wife,
with a high risk of HIV transmission;
‘Fisi’ (Hyena) – this is a situation
where, when it is realised that the wife
is failing to conceive, due to the
husband’s impotence, the relatives of
the husband encourage the woman
to engage in sex with her husband’s
brother. This practice risks the right to
health and spreads HIV;
Wife inheritance – traditional chiefs
and elders still take part in forcing
women into ‘Chokolo’ inheritance;
Replacement of a deceased – this
is a practice, by which a bereaved
husband marries a younger sister, or
niece, of the deceased wife;
Bonus wife – the girl is in most
cases treated as an object, when the
contract of marriage is negotiated.
Girls, as young as 11 years, could be
‘Kupimbira/Kuhara’ – this is a
practice where parents marry off their
daughters, mostly in payment of
debt, or for any other purposes. Girls,
as young as 11 years, could be
Marriage by proxy – many young
men travel to seek employment
outside the country. In their absence,
the husband’s brothers are asked, by
elders, to look after their sister-in-law,
including engaging in conjugal
relationships with the wives, and,
thereby, spreading the pandemic;
Wedding dances – there is a
particular dance, called ‘Ntongo’, in
some parts of the country, which
takes place at the vigil on the night of
the wedding, and promotes promiscuity and, hence, the
spread of STIs, including HIV.
Malawi acknowledges the fact that over and above the
knowledge about HIV and AIDS, prevention methods, and how
poverty contributes to the scourge, a unique way of combating
the pandemic is by empowering the youth, economically, as
future leaders. Although the current rhetoric is ‘prevention is
better than cure’, nobody can change behaviour if her or his
living standards remain poor. Women and girls are amongst the
vulnerable groups, who get into sexual encounters to earn a
living. Hence, encouraging this vulnerable group to engage in
some small-scale income generating activities would be
the most effective way of eradicating poverty amongst girls
Focusing on imparting income generation skills, and linking
vulnerable people to money lending institutions to fight poverty,
that has been identified as the major cause of the HIV and AIDS
pandemic, is the role HIV and AIDS activists can play, in
addition to advocating for preventive measures. Sustainable
livelihood is the only effective weapon against HIV and AIDS.
As cultural and traditional practices continue to influence the
Malawian society, and, thereby, increase the spread of HIV and
other sexually transmitted diseases, advocacy against such
practices, needs to be intensified in Malawi. The youth, who are
the future of this country, are patronising such cultural practices
in multitudes, and, hence there is the need for on-going
The activists could also keep on reminding government on
its commitment on the implementation of the UNGASS
Declaration of Commitment on HIV/AIDS, and, if it back-tracks,
to hold government accountable!
1. United Nations General Asembly Special Session of HIV/AIDS (UNGASS).
Faustace Chirwa is the Executive Director of the
National Women’s Lobby & Rights Group and ARASA
Focal Point in Malawi. For more information and/or
comments, please contact her on +265 1 825 026
or at email@example.com.
42 aLQ – March 2006
The repercussions of armed conflicts are
complex and involve not just widespread
physical and sexual violence, but also large scale
population displacement, food and medical
shortages. Wars can increase the spread of
sexually transmitted infections (STIs) and
facilitate HIV transmission through sexual routes,
injection drug use (IDU), contaminated blood
transfusions and occupational injuries. Armed
conflicts can influence HIV epidemic dynamics
in surrounding countries and beyond, both
directly by affecting HIV transmission itself and
indirectly through re-allocation of health-related
public funds toward security and defence
measures. Poverty, powerlessness and social
instability, all of which facilitate HIV
transmission, are extremely heightened in
DIRECT EFFECTS OF CONFLICT
ON THE SPREAD OF HIV
There are diverse ways in which HIV spreads in
conflict situations. These routes can be both
direct, such as the impact of conflict on sexual
transmission and drug use and indirect, such
as break down of health infrastructure and
redirecting of public health spending into
Sexual transmission of HIV in
Sexual transmission of HIV in conflict situations
occurs through a) massive displacement due to
conflict and, thereby, groups that have a high
incidence of HIV infection coming into contact
with groups with low incidence and knowledge
about HIV; b) rape or sexual abuse of women
and children; c) economic necessity forcing
women to engage in sex to survive; and d) high
HIV prevalence amongst military personnel and
the creation of economies based on commercial
sex for soldiers separated from their families
around military bases.
Conflict induced displacement
Conflict creates massive displacement of people
who flee from their homes to escape violence
and starvation. In such cases, there is a
likelihood of rural populations, where there are
low HIV infection levels and knowledge coming
into contact with urban populations with high
HIV infection levels. A case in point is that of rural
Sudanese refugees in Uganda.2
In addition to this, displacement tends to disrupt
social networks and institutions that normally
protect and support people. Displacement also
places people in chaotic circumstances in which
access to condoms and other prevention tools
may be scarce.3
By 1987, HIV had spread from northern areas
of Angola to central and southern regions,
accompanying war-induced population
displacement.4 In Rwanda, by 1998, a decade
of ethnic war, upheaval and mass movements
of refugees escaping violence had fanned an
escalating HIV epidemic, which spread from
cities, such as Kigali, to the countryside.5
making a point
HIV and AIDS amongst
comment: making a point
aLQ – March 2006 43
comment: making a point
Rape and sexual abuse
Refugees, especially women and children, who
usually have limited access to resources, are
very vulnerable to sexual exploitation by people
with food or money, and to rape by people with
weapons. Rape, is often used both by soldiers
and militants as an instrument of power to
control, terrorise and displace populations.6 HIV
risk increases, if there are multiple perpetrators,
or if women are held in captivity for long periods
of time.7 In the context of an emerging HIV
epidemic, widespread sexual violence can have
devastating health effects.
Rape as a ‘weapon of war’: A 2001 study found
9% of women displaced by armed conflict had
been sexually assaulted (UNAIDS/UNHCR,
2003). In a variety of recent conflicts, including
Bosnia-Herzegovina, Democratic Republic of
Congo, Liberia and Rwanda, combatants used
rape as a weapon of war. A study in Rwanda
revealed 17% of women, who had been raped,
tested HIV positive, compared with 11% of
women, who had not been raped (UNAIDS/
UNHCR, 2003). In some conflicts, young men
and boys have also been targets of rape.
During Liberia’s civil war, nearly half of civilian
women and girls were estimated to have been
physically or sexually abused in the first five years
of fighting.8 Risk can continue in refugee camps.
In Liberia, for instance, the setting up of women’s
shelters on the fringes of the camps, made
women more susceptible to sexual violence from
military personnel, police and male refugees.9
There is a high risk of HIV infection of women
and children raped by military and paramilitary
personnel. Even in peace times, the STI rate is
two to five times higher for military personnel,
than for civilians.10 A small study in Angola
showed that HIV rates were four to five times
higher amongst members of the military, than
amongst the general urban population.11 Studies
have shown that the geographical pattern of the
spread of AIDS in Uganda, during the first six
years of the post-Amin civil war, can be linked to
the placement of the Ugandan National
Women’s risk of contracting HIV, as a result of
sexual violence, also increases when there are
multiple perpetrators, or when women are held
by military personnel for prolonged periods of
time for sexual purposes, as has been reported
in recent emergency situations.13
Women and girls, who are affected by conflict,
are usually in such desperate circumstances
that they may engage in transactional or
‘survival sex’ with men, who have food or
money, to feed themselves and their children.14
The presence of large numbers of soldiers with
food and money, and the extreme conditions of
refugee women and girls, usually creates a sex
industry around military bases, which increase
the risk of HIV infection for sex workers and
uniformed service personnel.
Women and children make up approximately 80
per cent of the 40 to 50 million refugees and
internally displaced persons worldwide. Men
often leave, or are separated from their families
for military reasons, or in their search for
employment in the cities, or may be targeted by
soldiers or militants, or be killed, or taken
prisoner. This creates female-headed households
that tend to be financially desperate, due to
limited education, low earning ability, when far
from their home area, and with few real
alternatives to trading sex for money.
There is a high likelihood of the death of, or the
loss of contact with, a spouse in conflict
situations. This sometimes leads men and
women to seek new partners in situations that
may not be supportive of long-term relationships.
Conflict situations can also create risky sexual
behaviour and substance abuse amongst
44 aLQ – March 2006 comment: making a
people, whose future is uncertain and who are
trying to cope with the trauma of violence and
displacement. In Sudanese refugee camps in
northern Uganda in 1996, beer brewing and
selling were common activities for young
refugee women, most of who were separated
or widowed due to war. Unprotected sex with
multiple partners, while under the influence of
alcohol, was common.15
Estimates suggest that sexually transmitted
infections amongst soldiers could be at least
twice as high as in the general population. In
some countries where HIV has been present for
more than 10 years, armed forces report
infection rates of 50-60%. Even in peaceful
Botswana, one in three members of the military
has tested HIV positive.16
High HIV infection rates amongst El Salvador
soldiers were attributed to high levels of sexual
risk behaviour associated with the 12 year civil
war and numerous prostitution centres
surrounding military posts.17 Among surveyed
peacekeepers and soldiers from the national
army, only 23% could cite at least three HIVtransmission
routes; 38% reported not being
worried about AIDS; and only 39% had used a
condom during their last sexual encounter.18 In
Sierra Leone, sexual contacts with foreign
soldiers, from countries with high HIV levels,
rapidly increased the rates of STI and HIV.19
Transmission of HIV in conflict situations
through injecting drug use
Wars and conflict can increase injecting drug use
(IDU) by disrupting traditional supply routes of
drugs that can be smoked, sniffed or orally
consumed. At the same time, conflict can also
create shortages of sterile injecting equipment.
Afghanistan, which provided 75% of the world’s
heroin supply in 1999, is a case in point. After the
US invasion of Afghanistan, there were huge
disruptions in opium supply and prices. In
Taliban controlled areas, opium prices increased
ten times, but in other areas they dropped from
1200 USD/kg to 176 USD/kg.20
Increasing prices force drug users to use other
methods of consumption to reach the highs they
are used to, with small amounts of the drug. The
most cost efficient method then becomes
injecting. Military and police pressure on the
Afghan-Pakistan border, during the US led
invasion of Afghanistan, disrupted heroin
supplies and resulted in decreased heroin
quality in Quetta and Lahore. Many heroin users,
who previously inhaled heroin fumes, switched
to injecting synthetic drugs, particularly ones
which were cheaply and widely available
INDIRECT EFFECTS OF CONFLICT
ON HIV TRANSMISSION
Breakdown or lack of health infrastructure
Conflict in many cases diverts funds from health
spending to defence. Conflicts also create huge
demands on the health infrastructure, while at
the same time contributing to its collapse. Within
this context, low awareness of HIV/STIs, lack of
access to HIV/STI prevention supplies; fluctuating
availability and prices of non-injectable drugs;
and non-existent or weakened prevention
programmes combine to create conditions ripe
for the spread of HIV.
Reduced public health spending
Global responses to the HIV and AIDS epidemic
may be negatively affected by wars around the
world. Countries affected by conflict usually do
not prepare successful funding proposals to
bilateral, multilateral, private sector donors or the
new Global Fund on AIDS, Tuberculosis and
Malaria (GFATM). The GFATM fund depends on
contributions from public and private sources
that are not forthcoming with the money at a time
when much of their resources are, for instance,
diverted to the so-called ‘war on terrorism’. The
Commission on Macroeconomics and Health,
aLQ – March 2006 45
comment: making a point
recommended that the GFATM should fund
around US $8 billion per year by 2007, and US
$12 billion per year by 2015 for AIDS alone22, but
after September 11th in the first round of
proposals to the GFATM, countries asked for US
$1.2 billion, but only US $700 million was
available.23 This decreased contribution will
drastically reduce HIV prevention; increase
treatment budgets; increase the economic and
social crises in developing countries; and
result in significant security implications for the
Risks related to healthcare
The risk of HIV transmission can also occur from
poorly sterilised equipment in conflict situations,
if organisations providing healthcare do not have
adequate infrastructure. There is also an
increased risk of accidental HIV transmission,
and other blood-borne infections, between
patients and/or healthcare workers in conditions
of enormous stress and collapsing healthcare
systems. These risks are heightened in
mass immunisation campaigns, overuse of
intramuscular injections and intravenous
infusions, incision procedures when supplies are
inadequate, unsafe sterilisation practices, and
poorly trained and supervised staff. Healthcare
workers may also be at increased risk of HIV
infection, due to needle-stick injuries, or
exposure to open cuts, blood and body fluids of
an infected patient, especially under chaotic
emergency conditions. Although, blood screening
has reduced the risk through transfusion in most
parts of the world, HIV is still transmitted through
transfusions, even under stable conditions.
In a study in Kenya, the risk of HIV infection from
a blood transfusion was estimated at one in 50,
a statistic 10,000 times higher, than figures in
industrialised countries, such as the United
States or France. Contributing factors included
poor record systems, breaks in the cold chain
while transporting test kits, collection of blood
from family members when rapid tests are not
available, and the assumption that a mother and
her child have the same HIV infection status.25
HIV risk from blood transfusion tends to be high in
conflict situations since a number of conflictrelated
injuries require transfusion. This is more
so, if there has been a breakdown of the health
infrastructure in conflict affected areas.
Preventive measures in conflict situations tend to
be limited, but they can nevertheless be very
effective in combating the scale of HIV infection.
The Joint United Nations Programme on
HIV/AIDS (UNAIDS) and the UN High
Commission for Refugees (UNHCR) have
developed a minimal initial services package
(MISP) that can be used in emergency situations.
The MISP includes basic information on HIV and
AIDS, condom access, safe blood transfusion,
and materials to implement universal precautions
in refugee camps.26
There needs to be supplies of sterile needles and
infusion kits, and the implementation of safe
sterilisation practices is required to prevent
infection of patients through re-use of
contaminated equipment. Adequate supplies of
gloves, gowns, eye protection and other
materials are essential for health workers to
protect themselves from being infected. It is also
important to ensure easy access to condoms
and the availability of basic HIV information in a
culturally appropriate language.
The possibility of rape and sexual abuse can be
diminished by ensuring adequate protection for
women and unaccompanied minors in refugee
camps. Attempts have to be made to reduce the
need to engage in survival sex, by providing
opportunities and skills to refugees and conflict
affected people to be able to earn an income.
People, who choose to remain in sex work, need
to be given access to condoms, be protected,
46 aLQ – March 2006 comment: making a
and empowered to demand condom use from
Needle exchange programmes in countries with
disrupted drug routes, should be initiated and/or
expanded to address increased drug use. This
would be a significant way to reduce the spread
of HIV in India, Pakistan, Bangladesh, China,
Iran, Tajikistan, Uzbekistan, Turkmenistan and
other countries in the region as a result of the
invasion of Afghanistan.27
Decision makers should be informed that
providing sterile needles and syringes has not
been shown to increase drug use, or provoke
initiation of drug injecting. Fluctuating drug
supplies and prices should be responded to
by drug substitution programmes, using
methadone and other medications to prevent
drug users from moving towards IDU.28
Despite the aforementioned preventive measures
not being widespread, it is encouraging to note
that there is a growing articulation of these
measures in international forums addressing
concerns of refugees and displaced populations.
Nevertheless, we still have a considerable way to
go before any of these measures become
institutionalised responses to any conflict
situation. That requires a greater mobilisation,
locally and internationally, by civil society
organisations working on HIV and AIDS and
conflict affected populations.
1. Hankins, et. al. 2002. ‘Transmission and Prevention of HIV and Sexually
Transmitted Infections in War Settings: Implications for Current and Future
Armed Conflicts’. In AIDS, 16, pp. 2245-2252.
2. Jurugo, E.C. 1996. ‘Rural Refugees in Uganda: Their Vulnerability to
HIV/AIDS’. 11th International Conference on AIDS. Vancouver, 7–12 July
1996. [Abstract Tu.D.2917]. Cited in Khaw, A. J. et.al. 2000. ‘HIV Risk and
Prevention in Emergency-affected Populations: A Review’. Disasters, 24(3), pp.
3. UNAIDS. 2004. Report on Global AIDS Epidemic. p. 175.
4. Santos-Ferreira, M.O., Cohen, T., Lourenco, M.H., Matos Almeida, M.J.,
Chamaret, S. & Montagnier, L. 2002. ‘A study of seroprevalence of HIV-1 and
HIV-2 in six provinces of People’s Republic of Angola: Clues 2250’. In AIDS,
Vol 16, No 17. Cited in supra n.1.
5. McKinley, J.C. Jr. 1998. ‘Ravaged by war and massacre, Rwanda faces
scourge of AIDS’. The New York Times, May 28 1998. Cited in supra n.1.
6. Twagiramariya, C. & Turshen, M. 1998. ‘‘Favours’ to give and ‘consenting’
victims: The sexual politics of survival in Rwanda’. In Turshen, M. &
Twagiramariya, C. (Editors). What women do in wartime: Gender and conflict
in Africa. New York: ZedBooks. pp. 101-117. Also Crossette, B. 1998. ‘The
World: Violation; an old scourge of war becomes its latest crime’. The New York
Times, June 14 1998.
7. Salama, P., Laurence, B. & Nolan, M.L. 1999. ‘Health and human rights in
contemporary humanitarian crises: Is Kosovo more important than Sierra
Leone?’. In BMJ, 319, pp. 1569-1571.
8. Bauer, J. 1998. Report on United Nations Commission on Human Rights,
54th Session. (http://www.hri.ca/unifo/unchr98/theme4.shtml)
9. Kinnah, G. 1997. Refugees, Displaced People and Their Vulnerability to
HIV/AIDS: An Account of a Personal Experience. UK NGO AIDS Consortium
Report, pp. 8–10.
10. Kingma, S.J. 1996. AIDS Prevention in Military Populations: Learning the
Lessons of History. In International AIDS Society, 4, pp. 9–11. Cited in supra
11. Santos-Ferreira, M.O., Cohen, T., Lourenço, M.H., Matos Almeida, M.J.,
Chamaret, S. & Montagnier, L. 1990. ‘A Study of Seroprevalence of HIV-1 and
HIV-2 in Six Provinces of People’s Republic of Angola: Clues to the Spread of
HIV Infection’. In Journal of Acquired Immune Deficiency Syndromes, 3, pp.
780-86. Cited in supra n.6.
12. Smallman-Raynor, M.R. & Cliff, A.D. 1991. ‘Civil War and the Spread of
AIDS in Central Africa’. Epidemiology and Infection, 107, pp. 69–80. Cited in
13. Supra n.12.
14. UNAIDS. 1997. ‘AIDS & Mobility’. In: Refugees and AIDS. Geneva:
UNAIDS Best Collection; pp. 1-8.
15. Akwir, M., Arkangel, A., Moluma, D., Idro, J.W. & Homsy, J. 1998.
‘Vulnerability of refugee women to HIV/AIDS infection in refugee camps in
northern Uganda’. XII World AIDS Conference, Geneva, June 1998 [Abstract
16. UNAIDS. 2004. Report on the Global AIDS Epidemic. ‘Aids and Conflict:
Growing Problem Worldwide’ p. 177.
17. . Wollants, E., Schoenenberg, M., Figueroa, C., Shor-Posner, G., Klaskala,
W. & Baum, M.K. 1995. ‘Risk factors and patterns of HIV-1 transmission in the
El Salvador military during war time’. In AIDS, 9, pp. 1291-1292. Cited in
18. Supra n.30
19. Supra n.12
20. Reid, G. & Crofts, N. 2002. Revisiting the hidden epidemic: A situation
assessment of drug use in Asia in the context of HIV/AIDS. Melbourne,
Australia: The Center for Harm Reduction and The Burnet Institute.
21. Strathdee, S.A., Zafar, T., Brahmbhatt, H. & ul Hassan, S. 2002. ‘Higher
level of needle sharing among injection drug users in Lahore, Pakistan, in the
aftermath of the US-Afghan war’. Presented at XIV International Conference on
AIDS, Barcelona, July 2002.
22. Commission on Macroeconomics and Health. 2001. Macroeconomics and
health: Investing in health for economic development. Geneva: WHO.
23. Horton R. 2002. ‘WHO: The casualties and compromises of renewal’. In
Lancet, 359, pp. 1605-1611.
24. Holtgrave D. 2002. ‘Implications for HIV prevention programs of the 11
September 2001 terrorist attacks on the United States’. In AIDScience, 2, p.2.
25. Lackritz, E.M. 1998. ‘Prevention of HIV Transmission by Blood
Transfusion in the Developing World: Achievements and Continuing
Challenges’. In AIDS, 12(Supplement A), pp. S81–S86.
26. UNHCR. 1999. Reproductive health in refugee situations: An interagency
field manual. Geneva: UNHCR.
27. Zafar, T., Brahmbhatt, H., ul Hassan, S. & Strathdee, S.A. (in press). ‘A
comparison of HIV knowledge and risk behaviours among Afghani and
Pakistani drug users’. In Quetta, P. J. Acquired Immune Deficiency Syndrome.
Cited in supra n.1.
28. Hankins, C. 1998. ‘Harm reduction: Time to intensify efforts’. In
International AIDS Society Newsletter, 11, pp. 9-11.
Kabir Bavikatte is a lawyer working on issues
of biodiversity and indigenous people’s rights.
For more information and/or comments, please
contact him at firstname.lastname@example.org
The life and times of a South African
aLQ – March 2006 47
A common question I’ve been asked since my
book, ‘Khabzela: The Life and Times of a South
African’, was published on 12 September 2005, the
day he would have turned 37 had he lived, was how I
came to write it. The answer is that, although I am a
South African and worked as a politically engaged
journalist here for several years, I left the country in
1985 and returned at the end of 2002. In 2003, I was
working as a freelance journalist for various publications
in South Africa and abroad and one of the magazines I
wrote for was a New York-based magazine for people
living with HIV, called POZ. They asked me for an
interview with a black celebrity living with HIV: a very
rare commodity in 2003. Then Fana Khaba aka
Khabzela, the hottest DJ on the top youth radio station,
Yfm, announced on air he was positive. I interviewed
him and became increasingly compelled, partly by his
own desperate struggle for life, but also by his life story,
which seemed to have encompassed many of the
major events that had transformed the country during
my long absence: the final convulsive years of the
liberation struggle, the arrival of a democratic
government, the redemption of the so-called ‘lost
generation’, whose education and employment
prospects had been blighted by Apartheid. And the
arrival of HIV and AIDS.
Khabzela was already very ill by the time I met him.
He had dementia and a lot of what he told me didn’t
make much sense. I had three long sessions with him
but mostly, my picture of his life was gleaned from
interviews with his family, friends and colleagues. I
learnt a lot from my various researches.
The most surprising thing for me was the discovery
that ambivalence about HIV and AIDS was not confined
to the president and his minister of health. While I was
in London, and after returning to South Africa, my
understanding was that if only these two would get
over their denialism, and make ARVs universally
accessible, the pandemic could be turned around. My
journey through Khabzela’s life taught me that distrust
of ARVs and ambivalence about western medicine, in
general, is widespread. Yfm offered to pay for
Khabzela’s treatment; thus, access was not an issue.
Nor was education, since he frequently preached the
safe sex message on radio. He was an independentminded,
irreverent man and it was unlikely he would
have slavishly followed the views of the political leaders.
Yet, he threw away his ARVs after two weeks and
resorted to a range of traditional healing remedies, as
well as immune boosters touted as miracle cures.
When he first became ill, he believed he had been
bewitched by a rival DJ, who wanted his job. He went
to a traditional healer to rid himself of the foreign entity
(variously described to me as a ‘lwazi’ or an ‘isidliso’),
which had been infiltrated into his body and was
consuming him from the inside.
I discovered that his views were common amongst
his peers, all modern, urban, relatively highly functioning
Khabzela died, because he refused to take the only
medication that would have given him a chance of
suppressing the HI virus, anti-retrovirals. Why wouldn’t
he take them? I thought the answer came from his life
experiences: everything that had led to the making of
Fana Khaba in January 2004, the date of his death –
conspired against his capacity to make the
adjustments necessary to save his life.
Primary amongst these was his notion of masculinity:
this seemed to me to be a fragile construct. His father,
a drunken wife-beater, died when Fana was four and
was despised by his family. Fana was brought up in a
female-dominated household by older sisters and a
very strong and capable mother. Growing up, his main
male role models were the gangsters: they appeared to
have broken through the glass ceiling created by
Apartheid for young black men; they had plenty of
The life and times of a South African1
aLQ – March 2006 48
PRINTED BY FA PRINT
money, expensive cars and clothes, and beautiful
women. Their lifestyle was not sustainable, they lived
fast and died young, but it was the lifestyle Khabzela
emulated once he became rich and famous.
It came with a price: to call himself a man, a
successful, admired man, unlike his father – he had to
support his entire extended family, plus his five children
and their five mothers; and all the girlfriends required
presents. The pressure to perform sexually was
intense; he was hugely promiscuous, sleeping with
every groupie, who offered herself to him.
In order to deal properly with his illness, he needed
to give up control, to submit to the ministrations and
directions of doctors and carers. This induced panic
and terror in him. He could not find the inner resources
to make the necessary transformation. He felt
emasculated, because he was no longer on air at Yfm,
the source of much of his power and prestige. When
the queue of miracle peddlers started knocking at his
door, hoping to achieve fame and fortune on the back
of the Khabzela brand, his power of patronage
appeared to have returned and he entertained them all,
including Tine van der Maas, the Dutchwoman sent
personally by the minister of health to nurse him,
although Fana, at this point, November 2004, was too
weak to make his own choices. He had dementia,
kidney failure, peripheral neuropathy, large and infected
bedsores, chronic bloody diarrhoea and a chest
infection. Yet, van der Maas claimed she could cure
him with her diet and a vitamin preparation called
‘Africa’s Solution’. Later, I discovered she expected to
receive R1 from every bottle of ‘Africa’s Solution’ she
sold, a claim she denies, professing to promote it only
because of its effectiveness.
The problem of van der Maas and her ilk, and the
political atmosphere, which allows such characters to
flourish, has already been much explored. But one
aspect that seemed to me to need addressing also
affected Fana: the dementia that frequently
accompanies the latter stages of AIDS. Patients with
dementia are often not able to make rational decisions
for themselves. Who then takes control? What is the
Another major reason for Fana’s rejection of ARVs
was his faith in traditional healing systems. If this is
indeed a common response, and I had the impression
it is, surely it must impact on public health policies. If
someone believes they have been bewitched, it
fundamentally alters their understanding of what ails
them, and prevention and treatment messaging must
take that into account. All the evidence is that current
messaging is not working; infections continue to rise
despite the millions of Rands poured into education
and treatment. An attachment to traditional healing
could help explain that.
The safe sex injunction becomes irrelevant, if you
don’t believe your malady is caused by a virus
transmitted through sexual intercourse. If the first port
of call is a traditional healer, the latter should be
engaged by the medical establishment.
Since the book was published, I’ve done several
radio interviews and have been struck by the number of
black callers who have accused me of undermining
African traditional healing by insisting on ARVs as the
only option for Fana. These callers always bring up the
question of choice. AIDS patients need, they say, to be
able to choose from the range of remedies on offer.
So, to sum up, the situation on the ground is a
great deal more complex, than it would appear, and
denialism is not confined to the president and his
minister of health.
1. The book ‘Khabzela: The life and times of a South African’ is written by
Liz McGregor, published by Jacana Media, and available in all good bookstores.
The life and times of a South African
Khabzela: The life and times of a South African cont.
This publication has been made possible through the assistance of
the Joint Oxfam HIV/AIDS Programme (JOHAP) managed by Oxfam Australia