Die regte van kinders uit hoofde van artikels 26 en 28 van die grondwet

Abstract

The reality is that 24% of pregnant woman in South Africa are HIV positive and 70 000 children are infected each year through mother to child transmission of HIV. It is one of the most common forms of infection. Nevarapine can reduce the risk of intrapartum transmission of HIV from mother to child in pregnant woman who is not taking anti-retroviral therapy at the time of labour. Section 27(l)(a) of the Constitution of the Republic of South Africa 108 of 1996 states that every person has the right to have access to health care services, including reproductive health care. In terms of section 27(2) the state is obliged to take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights. This study will focus on the guidelines that were set by the Constitutional Court in Minister of Health v Treatment Action Campaign, to determine how the court reached their conclusion that the state did not comply with the above mentioned obligation, and that the right to health care services of pregnant HIV women were infringed. In the first section of this dissertation a theoretical background is sketched. This includes an analytical discussion on the High court as well as the Constitutional Courts decisions. Further reference will be made to the impact that the case had on various aspects of the social security system. The discussion will focus on the importance of international law in the interpretation of social security rights as well as the role of human dignity when interpreting these rights. The concepts of reasonableness as well as the separation of powers will be discussed to evaluate its impact on the realisation of socio-economic rights. Valuable conclusions as well as concrete suggestions will be made at the end of the above mentioned study.