Stu Woolman

Why State policies that undermine HIV lay counsellors constitute retrogressive measures that violate the right of access to health care for pregnant women and infants

Abstract The authors make two distinct, but related, arguments. First, their empirical studies – conducted in three antenatal clinics in inner-city Johannesburg – demonstrate a strong correlation between (1) the government’s failure to provide adequate remuneration to and secure employment of lay counsellors for the provision of HIV counseling and treatment; and (2) the failure of many women and children to receive timely medical interventions. The data show that late payment of HIV lay counsellors has a devastating impact on HIV testing in these three clinics. The evidence also demonstrates that such timely HIV prevention and treatment is required for the survival of pregnant women and their neonates. Lay counsellors – through no fault of their own – are often unable to make these timely interventions. Second, the authors contend that the government–s conscious deployment of inadequately remunerated and institutionally marginalized lay counsellors instead of health care professionals (who had previously undertaken counselling and testing) constitutes a retrogressive measure in terms of s 27 of the Constitution. In short, despite the government–s commitment to an expanded, more efficacious ART rollout, it is currently delivering less health care – not more – and less access to adequate health care – not more or better – to this cohort of patients with HIV. Such retrogressive measures offend the Court’s own understanding of the delivery of this constitutionally-mandated public good to pregnant women with HIV and their infants. The failure of the government to provide adequate and timely remuneration and secure employment to lay counsellors rises to the level required for finding an unjustifiable limitation of s 27’s right of access to health care services. As the authors show, the violation flows from the improperly remunerated, insufficiently trained and generally marginalized manner in which lay counsellors are (mis)managed by a public health system that has chosen to supplant well-trained professionals with well-intentioned non-professionals in the delivery of essential components of now constitutionally-mandated ART and PMTCT programmes.

Seek justice elsewhere : an egalitarian pluralist's reply to David Bilchitz on the distinction between differentiation and domination

Abstract This response to Professor David Bilchitz attempts to put the two of us back on square. It advances our ‘roughly’ common conception as to how our constitutional order ought to address conflicts between equality and liberty that surface in cases that turn on differentiation and discrimination within religious orders and traditional communities. To that end, this article first clears up any previous misunderstandings, establishes our common ground and adumbrates a (largely) shared paradigm as to when our basic law should identify cognisable harms to the dignity of fellow South Africans and the broad array of remedies at the disposal of our courts. This article then reminds us that we possess a well-developed body of South African jurisprudence that distinguishes the public from the private, and why constitutions are invariably committed to a defence of pluralism and some degree of private ordering. Thereafter, I advance the idea that one might ‘seek justice elsewhere’ as a response to domination and tyranny: either by peregrinations around the globe or by exiting one sub-public and entering or constructing another more felicitous community within one’s birth-state. With respect to the latter form of exit, the community responsible for the expulsion and the impairment of an individual’s dignity should, along with the state, bear some form of material obligation in order to make the creation of a more commodious sub-public a reality. Thereafter, the article relies heavily on theses laid out in Michael Walzer’s Spheres of Justice. Spheres of Justice, which enables us to make critical distinctions between differentiation and domination, as well as between legitimate distributions of social goods and tyrannical abuses of economic, social and political power that invariably lead to the kind of stratified society that we inhabit in South Africa. The article then draws on Walzer’s distinction between differentiation and domination in order to demonstrate how a commitment to remedial equilibration can assist us in developing a sliding scale of ‘interdependent and interrelated’ rights and remedies by which the rules that govern various non-state publics, communities or associations might be measured when charges of discrimination are laid. A court order based upon remedial equilibration possesses a number of distinct virtues. Where differentiation rises to the level of unfair discrimination, remedial equilibration allows a court to: (a) acknowledge the constitutional infirmity of the conduct; (b) appropriately remonstrate the association responsible for such conduct without necessarily eviscerating the power of the association to continue to determine its rules for membership, voice and exit; (c) require the association, and where appropriate the state, to bear the pecuniary costs of the dismissal (or expulsion); and (d) assist the person harmed to secure employment (or some other good) in a more congenial environment and thereby find justice elsewhere.

On the fragility of associational life : a constitutive liberal's response to Patrick Lenta

With his customary wit, elan, and analytical rigor, Patrick lenta’s article ‘taking diversity seriously’ has (a) critiqued and reconstructed the equality Court’s judgment in Strydom v Nederduitse Gereformeerde Gemeente Moreleta Park, and, (b) in so doing, has put our equality/association jurisprudence on a somewhat more solid footing. Because Professor lenta and i share a methodological predisposition towards the analysis of such cases, it should come as no surprise that we cover similar philosophical terrain and find ourselves roughly in agreement.

Moral luck: exploiting South Africa's policy environment to produce a sustainable national antiretroviral treatment programme

Abstract What kinds of social policy interventions will enable South Africa to offer a universal, free and sustainable antretroviral treatment programme? Some commentators assert that government’s best chance at offering such a programme will require the use of compulsory licenses and that the state’s failure to make use of such a weapon is a failure to discharge its constitutional duties. The authors demur. The threat of a compulsory license is only as good as the ability to make use of such a license. South Africa currently lacks the basic science community, reverse engineering capacity and fine chemicals industry necessary to make good on such a threat. The government’s best hope for discharging the duties imposed by the Constitution is a systematic, structural intervention: the implementation of a socio-industrial policy that leverages existing industrial capacity and voluntary licenses in a manner that generates price reductions and offers an uninterrupted sustainable local supply. However, voluntary licenses will only create downward pressure on prices when South Africa is able to establish a robust generics pharmaceutical industry. Such an industry can be created with appropriate tax relief, investment credits, technology transfer and assured access to active pharmaceutical ingredients. South Africa’s industrial, legal and financial resources can thereby be profitably exploited in a manner that progressively achieves a comprehensive and coordinated antiretroviral treatment programme.

My tea party, your mob, our social contract : freedom of assembly and the constitutional right to rebellion in Garvis v SATAWU (Minister for Safety & Security, third party) 2010 (6) SA 280 (WCC)

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Natures God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation. We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed. That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. The United States of America Declaration of Independence, 4 July 1776

South Africa’s aspirational Constitution and our problems of collective action

Abstract This article advances the somewhat novel contention that our Constitution (a) is aspirational in nature; (b) requires three critical preconditions before it delivers on its numerous promises and (c) is subject to manifold constraints that can only ever be partially overcome. It then marries three interlocking theses. The first thesis identifies the manifold constraints on individual, social and political change. These constraints can be overcome. However, change does not occur primarily through deliberation. It’s largely a function of two other processes: friction and experimentation. The second thesis – ‘the basic law qua scaffolding’ – emphasises the limitations of constitutions. The basic law qua scaffolding provides an extremely capacious normative framework within which: (i) political institutions produce public goods; (ii) associations and subpublics provide the meaningful settings for most actions; and (iii) individuals can pursue lives worth valuing. Scaffolding is thus best understood as a process of legitimation in which interpreters of the Constitution confirm (or deny) the validity of decisions taken by other actors within the realm. The third thesis contends that problems of collective action constitute the primary impediment to the production of public goods. The article then entertains proposals about how problems of collective action – politics properly understood – can be overcome.

Judging Jews : court interrogation of rule-making and decision-taking by Jewish ecclesiastical bodies

Abstract Determining who is in, and who is out, is a hot topic in debates about membership in religious communities, and the bodies, state and sectarian, that have the power to make decisions regarding such membership. For the most part, the state and the courts have taken a decidedly hands-off approach to interference in religious association decision-making. Some judgments have reinforced the proposition that individuals who ‘voluntarily’ commit themselves to a religious association’s rules and decision-making bodies must be prepared to accept the outcome of fair-hearings conducted by those bodies. At the same time, a number of judgments have demonstrated a willingness to intervene quite profoundly in the affairs of a variety of different religious communities and mediate the relationship between the profane and the sacred, the traditional and the modern. Our intervention concentrates on but two features of court-driven, constitutional review of religious association decisions regarding membership or participation in a given community. First, we suggest how the law of evidence can provide appropriate guidance to courts faced with the challenge of interrogating the validity of decisions taken by religious bodies. Second, we offer a theory of religious community life in a constitutional democracy that can guide courts in determining when and where they should and should not interfere in the decision-making of religious bodies.