Investigation of Complaint Against Decision to
Approve Operational Plan for Comprehensive Treatment and Care
for HIV and Aids
29 October 2004
The Public Protector today released his report on an
investigation of a complaint against the decision of the South
African Cabinet, taken on 19 November 2003, to approve the
Operational Plan for Comprehensive Treatment and Care for HIV
and AIDS, designed for South Africa by the national Department
of Health.
It was alleged that Cabinet�s decision was unconstitutional
and irrational as it did not take into account the best
available evidence on the disease and as it was based on the
unproven premise that HIV causes AIDS.
Prior to considering the complaint, the authority of the
Public Protector to investigate complaints or suspicions of
impropriety in respect of the formulation and implementation of
government policies had to be determined. It was found that the
Public Protector has such authority. The pronouncements of the
courts relating to the interpretation of the Constitution, 1996
and the law applicable to administrative actions by organs of
state, were found to be helpful directives and indicators
relevant to the investigation of complaints entertained by the
Public Protector.
During the investigation, the legislative framework
pertaining to the Cabinet�s decision and international
perspectives based on comprehensive research on the issue of
HIV/AIDS were considered and evaluated.
It was found that:
- The decision of the Cabinet to approve the Operational
Plan was taken in compliance with the constitutional duty of
the State to take measures to make health care available to
everyone;
- The said decision was informed by the best information
currently available to the international community; and
- The Cabinet�s decision to approve the operational plan
was reasonable and proper and in accordance with the
recommendations and initiatives of the World Health
Organization and UNAIDS.
Enquiries: Adv Stoffel Fourie
082 333 5620
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