Annual report for 2003 AIDS Law Project Centre for Applied Legal Studies University of the Witwatersrand ALP ANNUAL REPORT

Acknowledgements The ALP acknowledges the donors who funded our activities in 2003: • The European Union • The Ford Foundation • HIVOS • Development Co-operation Ireland • Coca Cola • The Foundation for Human Rights The ALP would like to thank the following people for their generous assistance in furthering the aims of the project:

Adv Rob Petersen SC, Adv Susannah Cowen, Adv Wim Trengove SC, Adv Gilbert Marcus SC, Adv Sharise Weiner, Adv Nigel Redman, Adv Lara Grenfell, Adv Daniel Berger SC, Adv Gift Nameng, Adv Zarina Camroodien, Adv Karel Tip SC, Adv Faranaaz Veriava, Geoff Budlender, Dr Tammy Meyers, Dr Gayle Sherman, Dr Ashraf Coovadia, Dr Harry Moultrie, Dr Michelle Meiring, Richard Moultrie, Alison Dyer, Adv Hamilton Maenetje, Peter Roth QC, Dr Francois Venter, Dr Mark Cotton, Dr Robin Wood, Sister Sue Roberts, Professor Rob Dorrington, Alex van den Heever, Dr Steve Andrews, Sandy Harnisch, Elizabeth Wickeri, Dr Willbert Bannenberg, Dr Hugo Templeman, Dr Hermann Reuter, Dr Issy Dinat, Belinda Beresford.

We would like to acknowledge the support of Médecins Sans Frontières (MSC), the Canadian HIV/AIDS Legal Network, Action for Southern Africa, the Women’s Legal Centre, the Children’s Institute, the Children’s Rights Centre, the Centre for the Study of Violence and Reconciliation, Bowman Gilfillan Incorporated, the Treatment Action Campaign, the Legal Resources Centre, the AIDS Consortium and the Joint United Nations Programme on HIV/AIDS (UNAIDS).

We would like to acknowledge the courage of our clients in taking up and pursuing their cases. In particular we would like to remember Charlene Wilson, Edward Mabunda, Kamoelo Pitso, Martha Jas and Matomela Paul Ngubane. ALP ANNUAL REPORT

contents Acknowledgements I Mission Statement 2 Staff at the ALP 3 Glossary 4 Foreword 5 Introduction 7 HIV law and policy unit 9 Law and treatment access unit 17 Advocacy, research and public education 23 Publications: research and legal literacy 29 Project management and administration 33 Appendix A 35 Presentations and papers of workshops, seminars and conferences Appendix B 43 Parliamentary submissions and briefings Appendix C 45 Publications by staff members Appendix D 49 Positions held by staff

1 ALP ANNUAL REPORT Discrimination against people with HIV/AIDS undermines society’s efforts to prevent HIV infection and limit the impact of the HIV/ AIDS epidemic on our society. Discrimination is also contrary to internationally accepted principles of human rights. The AIDS Law Project operates according to the principles set out in the United Nations International Guidelines on HIV/AIDS Human Rights, 1998. mission statement In particular, the ALP focuses on removing obstacles that: • Prevent people with HIV/AIDS from having access to adequate health care and treatment in both the private and public sectors; • Prevent people with HIV/AIDS from contesting unfair treatment and discrimination and having access to legal remedies to protect their fundamental rights; and • Deny people with HIV/AIDS access to employment, employee benefits, insurance, education and other services. The AIDS Law Project aims to: • Carry out litigation to counter wrongs that have occurred and, where possible, to establish legal precedents that prevent them from recurring; • Build capacity within existing legal advice service providers to offer free legal advice that will empower people living with HIV/AIDS to seek legal remedies in response to acts of unfair discrimination; • Carry out research to support policy formulation and bring about practices that prevent discrimination; and • Produce media that creates an awareness of rights in government and civil society and promotes effective lobbying and advocacy. The ALP is committed to a code of professional ethics, to respecting confidentiality and to the principle of the maximum inclusion of people living with or affected by HIV/AIDS. We will oppose all forms of unfair discrimination and promote a culture of human rights and equality for all. 2 ALP ANNUAL REPORT STAFF AT THE ALP

Jonathan Berger (Resigned December Head and Researcher – 2003) Law & Treatment Access Lindi Kunene Unit Project [email protected] Administrator Althea Cornelius [email protected] Litigation Secretary/PA Xolani Kunene to Project Head Paralegal [email protected] (end of contract Adv Liesl July 2003) Gerntholtz Manana Madiba Head – HIV Law and Paralegal Policy Unit [email protected] [email protected] Gilbert Mandla Chloe Hardy Mgogoshe Paralegal Co-ordinator Paralegal [email protected] [email protected] Fatima Hassan Teboho Attorney/consultant – Motebele Law & Treatment Access Attorney – HIV Law Unit and Policy Unit [email protected] (Resigned December 2003) Mark Heywood Project Head & Senior Marlise Richter Researcher Research Officer [email protected] [email protected] Jennifer Joni Mosa Seloane Attorney – HIV Law and Resource Centre Policy Unit Co-ordinator (Resigned June 2003) [email protected] Teboho Kekana Fatima Shaik Outreach Officer – Project Manger Advocacy & Outreach [email protected] Unit (Resigned December 2003) The Sowetan is South Africa’s largest readership newspaper Anita Kleinsmidt “Just call me Lucky” Attorney – HIV Law and Sowetan 21st October 2003 Policy Unit

3 ALP ANNUAL REPORT ACTSA GRIP NGO Action for Southern Africa Greater Nelspruit Rape Non-Governmental Organisation ARVs Intervention Project NHLS Antiretroviral medicines GSK National Health Laboratory BI GlaxoSmithKline Service Boehringer Ingelheim HIV NPG CALS Human Immune Deficiency National Pathology Group Centre for Applied Legal Virus PEP Studies HPCSA Post-Exposure Prophylaxis CHALN Health Professions’ Council of PLWAs Canadian HIV/AIDS Legal South Africa People living with HIV/AIDS Network HSRC PMBs CCMA Human Sciences Research Prescribed Minimum Benefits Commission for Conciliation, Council SA Mediation and Arbitration South Africa GLOSSARY

CHOMP ICASO SALC Children’s Home Medical International Council of AIDS South African Law Commission Outreach Project Service Organisations SAMA CEPPWAWU LRC South African Medical Chemical, Energy, Paper, Legal Resources Centre Association Printing, Wood and Allied LTAU TAC Workers’ Union Law and Treatment Access Unit Treatment Action Campaign COSATU MCC TRIPS Congress of South African Trade Medicines Control Council World Trade Organisation’s Unions MEC Agreement on Trade-related CMS Minister of the Executive Aspects of Intellectual Property Council for Medical Schemes Council Rights CSVR MRC UN Centre for the Study of Violence Medical Research Council United Nations and Reconciliation MSF UNAIDS DoH Médecins Sans Frontières Joint United Nations Programme Department of Health MTCT on HIV/AIDS DR Mother-to-child transmission WHO Doctor NAPWA World Health Organisation DTI National Association of People WLC Department of Trade and Living with HIV/AIDS Womens Legal Centre Industry NEDLAC WTO GARPP National Economic, Development World Trade Organisation Generic Anti-retroviral and Labour Council Procurement Project

4 ALP ANNUAL REPORT Foreword

The AIDS Law Project was founded in 1993. This, its Report for its tenth full year, reminds us not only of what has been achieved in our struggle with the AIDS epidemic since then, but of what we have yet to achieve. Fittingly, despite the lustre the ALP’s achievements and activities have rightly earned, this report of its activities vaunts nothing. It is a record of endeavour and application – often highly inventive and painstakingly assiduous, as the pages following show – on the part of the ALP’s leaders, lawyers, researchers, administrators and paralegals. A model project, the ALP attracts international support, recognition and acclamation. Its litigation and policy initiatives have been well-directed and influential, while its research has contributed significantly not only to knowledge, but to practical interventions and strategies. Yet the report’s tone of sobriety is right, since our struggle in the epidemic has been as much with the virus and its devastating effects as with ourselves – our conception of truth, our acceptance of the truth, and our readiness to act on its implications. And none of us has been exempt from denial, neglect and insufficient application and imagination. The legal and policy struggles documented here, and the ALP’s successes in them, remind us of how much we all have yet to do – how much we all still can do – to lessen the toll of suffering and bereavement this epidemic has caused. My hope is that this report, and the dedication and application that it documents, will inspire us to further action. Mr Justice Edwin Cameron Supreme Court of Appeal 30 April 2004

5 ALP ANNUAL REPORT

6 ALP ANNUAL REPORT

introduction

2003 marked the 10th anniversary of of access to health care services. High the AIDS Law Project, and it is therefore quality research is undertaken to fitting that the foreword to this annual support litigation and assist in report should be written by the ALP’s legislative and policy development. founder and mentor, Justice Edwin Professional lawyers and paralegals Cameron. The key objective of the ALP provide quality legal advice and remains to empower disadvantaged litigation services to people who have and marginalized people to use the law experienced unfair discrimination, as to address unfair discrimination, find well as to individuals and organizations redress for the violation of their human working to advance the rights of people rights and hold government and the living with HIV/AIDS. private sector accountable to people’s Towards the end of 2003 the ALP needs. embarked on a process of internal The ALP conducts research, advocacy evaluation and restructuring. The and legal action that aim to ensure organization recommitted itself to immediate and short-term remedies, as litigating cases that will have a great well as long-term systemic change. public impact both on the judiciary and Together, such actions give effect to the society generally. The objective is to ALP’s aim, which is to use the law to extend the benefits of legal action from defend and advance the rights of the individual or group that initiates it people living with HIV/AIDS. to as many people as possible. The ALP uses litigation as a tool to hold In 2004 the ALP will restructure itself government to account in respect of its around two main units. They are the positive obligations regarding the right HIV Law and Policy Unit and the Law

7 ALP ANNUAL REPORT and Treatment Access Unit. Despite uprooted and disinherited in their having two distinct areas of work, these society. The people in the AIDS Law two units will also work collaboratively Project are a principled group of on projects. advocates. They forced the One highlight of 2003 was the receipt Government of South Africa to reverse of the “Award for Action on HIV/AIDS itself and to champion policies that it and Human Rights” bestowed upon the might never have championed ALP by the Canadian HIV/AIDS Legal otherwise.” Network and Human Rights Watch at a Such a comment from such a ceremony held in Canada and attended distinguished human rights advocate by human rights advocates from is indeed an honour. around the world. Stephen Lewis, the After 10 years the ALP remains strong United Nations Secretary-General’s and committed to further challenging Special Envoy for HIV/AIDS in Africa, and addressing human rights abuses was the keynote speaker. In and developing measures for the acknowledging the ALP Lewis said: eradication of discrimination, in order “It is very rare that one has the to empower people living with HIV/ opportunity to honour an organization AIDS. that has so effectively represented the

http://www.hrw.org/press/2003/09/aidsaward091203.htm

8 ALP ANNUAL REPORT

HIV law and policy unit

2003 saw a number of important changes in the HIV Law and Policy Unit of the ALP. A process of discussion of the unit’s work commenced in April 2003 and sought to examine whether the current ways of working were still effective. This process eventually linked into a broader evaluation of the ALP that culminated in November 2003. An important decision taken during this process was to refocus on high impact public interest cases, and to find other attorneys and legal organizations to assist in litigating the non-impact, but important cases. In this regard, an extremely fruitful meeting took place with Bowman Gilfillan Incorporated, a prominent private law firm. The firm has agreed to take over four of the ALP’s cases. Should this co-operation be successful, it is hoped that similar relationships can be formed with other law firms. Paralegal work The ALP recorded 415 complaints. These included telephonic requests for assistance, e-mail requests and face-to-face consultations. The ALP paralegals gave advice on a wide range of issues, including questions relating to HIV testing, confidentiality and disclosure, insurance and workplace related discrimination, alleged willful HIV transmission and social assistance. The paralegals also dealt with a large number of requests for information. The paralegals conducted an outreach clinic at Helen Joseph Hospital in Johannesburg, working closely with members of the Infectious Diseases Unit, which provides services to people with HIV. The training is intended to build capacity within the peer support group so that they are able to provide basic advice and information to their members and communities. A similar programme began at the Harriet Shezi Paediatric HIV Clinic at Chris Hani Baragwanath Hospital in the second half of the year. An important part of the paralegal work is the assistance that is provided to the ALP’s attorneys. The paralegals have supported the legal work of the unit by conducting interviews with clients and witnesses, drafting affidavits, serving and filing pleadings and attending court. 9 ALP ANNUAL REPORT Impact Litigation: major cases in 2003 The unit had a busy and largely GRIP continues to assist rape survivors successful year, with several important to obtain access to PEP.1 cases either being argued or finalized Gazi v The Minister of Public in the courts. Unfortunately not all Service and Administration and cases were concluded successfully, and others the ALP intends to take at least one important case on appeal in 2004. Dr Gazi, a public service doctor working in the Eastern Cape, had been Member of the Executive Council disciplined for making a derogatory (MEC) for Health, Mpumalanga comment about the former Minister of Province v GRIP Health, Dr Dlamini-Zuma, after she This matter was first taken up by the ALP declined to provide antiretroviral drugs in 2000 on behalf of the Greater to pregnant women to reduce the risk Nelspruit Rape Intervention Project of mother to child transmission. As a (GRIP). At the time the ALP assisted result of his comments, Dr Gazi, was GRIP to bring an urgent application called to a disciplinary hearing and against the MEC after she unilaterally found guilty of misconduct. He received locked GRIP out of the rooms it had used a reprimand. in a public hospital to provide services The application sought to review the to rape survivors. Following that case, the findings of the magistrate who found MEC brought two other cases against Dr Gazi guilty of misconduct, on the GRIP in an attempt to shut it down. The basis that his constitutional right to attempts to evict GRIP from the freedom of expression had been hospital’s premises started when it violated. The case also dealt with the began to assist survivors of sexual rights of public servants to make violence to obtain antiretroviral drugs to comments in the best interests of their reduce the risk of HIV transmission patients and in the public interest. following rape or other forms of sexual assault. At the time, it was not part of It was argued in the Pretoria High Court government policy to provide these on the 13th and 14th of May 2003. At drugs to survivors who sought care in the the time of writing, judgment had still public sector. not been handed down. The case was finally settled on the 5th Ex parte Nigel Redman N O; of February 2003 when the MEC Ex parte Meyers2 withdrew her case. The ALP During 2003, the unit took up three successfully defended GRIP’s right to cases dealing with the rights of children provide PEP to rape survivors and, as without parents to receive medical part of the campaign to highlight the treatment and HIV tests. The unit misconduct of the MEC, also filed complaints with the Public Protector 1 A full account of the history of the conflict over the and the Human Rights Commission. provision of PEP in Mpumalanga can be found at: http://www.hrw.org/reports/2004/southafrica0304/ As part of the settlement, the MEC also 4.htm 2 Notice of motions, press statement and affidavits are tendered to pay the costs of the available at http://www.alp.org.za/view.php?file=/ litigation. camps/20031205_Children.xml 10 ALP ANNUAL REPORT worked closely with the Wits Paediatric HIV Working Group, a group of health workers providing services to children in the public sector. Prior to commencing litigation, the unit drafted a memorandum on behalf of the Childrens Home Medical Outreach Project (CHOMP) on the legal and ethical issues regarding HIV testing of abandoned infants. This was intended to assist the Department of Social Development to grapple with the legal issues associated with HIV testing. The memorandum made recommendations that guidelines be developed to regulate the HIV testing of abandoned infants. The Department agreed to establish a task team, including representatives of the ALP and the Wits Paediatric HIV Working Group, and although the task team met on one occasion, the guidelines were not Newspaper billboard after the ALP’s successful court application to allow children with no legal gardian to be tested completed. The ALP then decided to and treated for HIV initiate litigation. In the first case, the unit acted on A second, similar case, concerning the behalf of four orphaned children who rights of one child to access attended the Harriet Shezi Paediatric antiretroviral treatment, was HIV Clinic at Chris Hani Baragwanath successfully brought on the 19th of Hospital. The clinic had raised funds to August 2003. provide antiretroviral medication to ten A third case, argued on the 5th of children in the context of an operational December 2003, was brought on behalf research study. Permission was sought of eight children who required access from the Ethics Committee of the to antiretroviral treatment and three University of the Witwatersrand for the who needed to undergo HIV tests. The children to participate in the study and case was also brought on behalf of the it was granted on the basis that Wits Paediatric HIV Working Group, who informed consent was sought and requested permission from the court to obtained from the parents or legal test and treat other, unnamed children guardians of each child. in similar positions, by obtaining However, there was no person capable consent from their care-givers, even of providing legal consent in respect of though the law currently does not four of the children. Therefore an permit this. The court ordered in favour urgent application was brought in the of the children receiving treatment and Johannesburg High Court, requesting HIV tests, and, importantly also the court, as the upper guardian of all permitted the Wits Paediatric HIV children, to provide consent. The order Working Group, once they had certified was granted on the June 10th 2003. that treatment and/or HIV testing was 11 ALP ANNUAL REPORT in the best interests of the child In its summons, the ALP pleaded that concerned, to obtain permission from the disclosure made by the parties took the caregiver, in circumstances where place intentionally or negligently. South there is no legal guardian present to African common law does not provide provide permission. Although this order for a cause of action based on a will significantly assist in protecting the negligent disclosure and the rights of children who receive treatment defendants brought an exception and care from the health workers against this aspect of the pleadings. associated with the Wits Paediatric HIV The exception was argued on the 6th of Working Group, it will not assist August in the Johannesburg High Court children in other provinces. The ALP and Judge Lewis Goldblatt found in intends to examine how this order can favour of the ALP’s clients. be extended to other children in 2004. The main claim against the three X and two others v S and two parties will proceed in 2004. others VRM v The Health Professions’ The ALP is acting on behalf of three Council of South Africa (HPCSA)3 women with HIV who participated in a The ALP acted on behalf of a pregnant clinical trial organized through the woman with HIV. In 1998 during her University of Pretoria and a hospital. As pregnancy she was tested for HIV a result of alleged unethical practices without her informed consent and that occurred during the trial, the without pre- and post-test counseling. defendant intervened and an She was also not advised that there investigation into the trial was were measures she could take to protect conducted by the University. the health of her unborn child. Later the full names of the women who The ALP filed a complaint about the participated in the trial, their HIV status conduct of the doctor with the HPCSA. and details of their personal Its Committee of Preliminary Enquiry circumstances were included in a declined to refer the complaint to a biography of one of the defendants. disciplinary hearing on the grounds None of the women had been that they did not believe that there was approached to give permission for their misconduct on the part of the doctor names and HIV status to be disclosed concerned. The ALP brought an and none of them had in fact disclosed application to review this decision. their HIV status to family members and friends. As a result of the disclosure in This matter was originally argued in the the book, all three women suffered Pretoria High Court in 2002, and the detrimental consequences, including application was dismissed with costs being evicted and threatened with by Judge Daniels. A number of issues assault. were raised on appeal, including the HPCSA’s argument that its guidelines The ALP has brought a case for on the management of HIV/AIDS, damages against the authors and their which provide for informed consent and publishers based on the unlawful pre-and post-test counseling, are not disclosure and the violation of the right binding on doctors. to privacy.

3 A copy of the judgment can be found at http://www.alp.org.za/view.php?file=/resctr/jdgmnts/ 20020527 jvr mvshpc.xml 12 ALP ANNUAL REPORT The ALP appealed against the decision Karen Perreira v Sr Helga’s and the appeal was argued on the 17th Nursery School and the of September 2003. In its argument, Buccleuch Montessori Nursery the ALP dealt with the status of the School4 HPCSA’s guidelines for the The case dealt management of HIV/AIDS and argued with the rights that the guidelines were in fact binding of children with on health workers. It also argued that HIV to attend the HPCSA has a duty to act in the nursery school. public interest and that in refusing to The second regard the conduct of the doctor as respondent, professional misconduct, it had failed the Buccleuch to meet its obligations. Montessori Judgment was handed down on the Nursery 10th of October 2003. In the judgment, School, had the court found that the Committee of refused to Preliminary Enquiry was not entitled to admit adjudicate on complaints that raise Tholakele disputes of fact. In particular, the court Nkosi, when considered what weight the Committee her foster was entitled to place on the version of mother, Karen the doctors in responding to Perreira, complaints. In cases where there are disclosed her disputes of fact, such as in this case, HIV status to www.mg.co.za/Content/13.asp?ao=2872 the Committee must refer the complaint the school. The to a disciplinary enquiry where school indicated that it did not consider appropriate evidence can be led. The itself ready to admit children with HIV, judgment represents an important none of its teachers having received victory for patients who wish to take up any training in this regard. It also stated complaints against members of the that it was concerned about the risks health profession. of HIV transmission through biting, sharing of suckers and scratching of As a result of this judgment, the ALP insect bites. approached the HPCSA and requested that it reconsider several other Although it was argued on behalf of complaints. All of these complaints had Karen Perreira that the school had been referred to refused to admit Tholakele, the court the Committee found that the school had of Preliminary recommended that the child’s Enquiry and enrolment be deferred for at least six none had been months when she would be “past the referred to a biting stage”. On this basis, the court disciplinary found that the school had therefore not hearing. The taken a final decision to exclude the HPCSA agreed child. The application was dismissed to reconsider the with costs.

complaints. 4 A copy of the judgment can be found at http://www.alp.org.za/view.php?file=/resctr/ jdgmnts/20040312 Bu cclJdg.xml www.suntimes.co.za/2003/09/21/new/new21.asp 13 ALP ANNUAL REPORT The judgment seems to suggest that it negligence of the hospital in failing to is permissible for nursery schools to use ensure that the HIV results were a lack of preparedness as a justification disclosed. to defer the enrolment of children with L and another v GaRankuwa HIV. The judgment failed to give any Hospital and others – the ALP’s guidance to what nursery schools need clients are a son and his mother. The to do to ensure that they are able to son has a chronic renal condition that admit children with HIV and also failed required him to have a kidney to comment on and deal with the fact transplant and his mother agreed to that it is unreasonable for any school donate her kidney to him. Both were in South Africa to consider themselves tested for HIV, but the hospital failed unequipped to admit children with HIV to ascertain the results of the HIV test at this stage of the epidemic. The before the transplant took place. The judgment acknowledged that the mother has HIV and as a result of the school had raised concerns about the transplant of her kidney into her son, risks of HIV transmission through biting he has contracted HIV. The ALP has but failed to deal with the issued summons against the hospital reasonableness of this fear, despite the for their negligence. This case has been expert evidence adduced by the ALP referred to Bowman Gilfillan that unequivocally indicated that there Incorporated. is a remote possibility that a child will contract HIV as a result of a bite from Baby A v The Red Cross Children’s another child. To date, there are no Hospital and another – a baby recorded cases of transmission contracted HIV during a period of between children as a result of biting. hospitalization; both parents have tested negative and other routes of The ALP has decided to appeal against transmission, including through blood the decision and the application for transfusions, breast feeding and sexual leave to appeal will be argued in 2004. assault, have been excluded. Summons Other litigation has been issued against the hospital. The ALP initiated litigation in the X v Connell Instruments – the ALP’s following matters in 2003: client was dismissed for wearing an ‘HIV-positive’ T shirt. The ALP has M and another v One Military initiated an action on his behalf in the Hospital – the ALP clients were Labour Court. undergoing fertility treatment at the hospital. As part of the programme, Cases before they were advised that they were required to undertake an HIV test. One other tribunals of the clients tested HIV positive. The doctors dealing with the case failed to Council for Medical Schemes: disclose the results of the HIV test to the clients and the second client, who FH v Compcare Medical Scheme had tested HIV negative, subsequently The ALP acted on behalf of FH whose contracted HIV as the couple continued membership of Compcare Medical to have unprotected sex. The ALP has Scheme had been terminated on the issued summons against the hospital basis that he had failed to disclose his for damages as a result of the HIV status. FH stated that he was not 14 ALP ANNUAL REPORT aware of his HIV status prior to applying Public Health and Welfare for membership of the medical scheme. Sectoral Bargaining Council: A complaint was made by the ALP to N v The Department of Health, the Registrar of the Council for Medical Mpumalanga Schemes and a mediation hearing was convened on the 8th of August 2002. A The ALP acted on behalf of a doctor who hearing took place before the Council had provided assistance to GRIP, on the 28th of October 2002. The ruling another of the ALP’s clients, who in turn of the Council was made available on provided PEP services to rape survivors the 4th of November 2002 and who sought care at public hospitals. The Compcare was ordered to reinstate FH MEC for Health attempted to prevent with immediate effect and also to pay GRIP from providing PEP to rape out on all costs that he had incurred survivors. during the period that he was not a As a result of the support offered to member of the scheme.5 Compcare GRIP by Dr N, the Department of Health appealed to the Appeal Board of the unlawfully dismissed him. The ALP Council and the appeal was argued on assisted him in challenging the the 24th of February 2003. conduct of the Department. The Appeal Board found in favour of The matter was argued before the FH, indicating that Compcare had failed Bargaining Council and the decision to to prove that FH had been aware of his dismiss Dr N was upheld. The ALP HIV status prior to joining the scheme assisted Dr N to appeal against this and stating in its ruling that it was clear decision and the appeal was from the evidence that Compcare had successfully argued on the 5th of terminated FH’s membership when it August. The matter will be referred back became aware of his HIV status. to the Bargaining Council. Compcare were ordered to reinstate Commission for Conciliation, FH’s membership with retrospective Mediation and Arbitration: effect. The ALP took a number of cases to the EL and BB v Discovery Health CCMA during the year, most concerning Medical Scheme the rights of domestic workers. Most The ALP referred a complaint to the were successfully conciliated in favour Council for Medical Schemes of the ALP’s clients. concerning the capping of AIDS-related Legal advice: hospitalization by Discovery Health Medical Scheme, on the grounds that The ALP Legal Unit continues to assist it unfairly discriminated against a number of key AIDS organizations by members with HIV/AIDS. providing them with legal advice on a range of issues, including internal, The Council instructed Discovery to organizational issues. convene a Disputes Committee hearing, which it did on the 26th of May. To date, Discovery Health Medical Scheme has not yet released its ruling.

5 A copy of the judgment can be found at http://www.alp.org.za/view.php?file=/resctr/jdgmnts/ 20031030_CompOct02.xml 15 ALP ANNUAL REPORT

16 ALP ANNUAL REPORT

law and treatment access unit

A critical issue in the HIV/AIDS epidemic is the legal and human rights question of access to essential medicines for preventing and treating HIV infection and AIDS-related illnesses. The law, both at national and international level, has generally been used by governments and the pharmaceutical industry to restrict access to such medicines. In light of this, the Law and Treatment Access Unit (LTAU) was set up in January 2002 to address this crucial issue as well as additional barriers that limit access to treatment for HIV/AIDS. Since its inception, the LTAU has made numerous written and oral submissions to Parliament, the Department of Health, other government departments and statutory bodies on a range of health policy issues; assisted individuals and organisations in South Africa and elsewhere with legal advice on access to medicines; and provided legal education, advice, litigation and research services to a range of civil society organisations, most notably the Treatment Action Campaign (TAC). Access to essential medicines, medical products and diagnostic and monitoring services

Hazel Tau and Others v GlaxoSmithKline and Boehringer Ingelheim The highlight of the LTAU’s work in 2003 was the successful conclusion of negotiations with two major pharmaceutical companies that will ensure better access to three key antiretroviral (ARV) medicines throughout sub-Saharan Africa. The settlement agreements would not have been reached without the formal complaint to South Africa’s Competition Commission that the LTAU lodged in September 2002 on behalf of four people living openly with HIV/AIDS, four health care workers, the TAC, COSATU and its affiliate CEPPWAWU.1

1 In February 2003, two further complainants joined – a police officer living openly with HIV/ AIDS (who subsequently passed away on the 16th of June 2003) and the AIDS Consortium (representing more than a thousand individual and organisational members). 17 ALP ANNUAL REPORT Alleging that additional grounds, both of which deal GlaxoSmithKline with the failure of GSK and BI to licence (GSK) and generic manufacturers in certain Boehringer circumstances. Simply put, the Ingelheim (BI) Commission found that GSK and BI were acting were using their patent monopolies to unlawfully by deny appropriate licences to other charging manufacturers, whilst simultaneously excessive prices keeping their own prices high. for certain of By December 2003, within two months their ARV of the Commission’s announcement, medicines to the GSK and BI entered into separate detriment of settlement agreements with the consumers, the complainants and the Commission complaint respectively.3 In short, the two groups argued that the of companies have agreed to open up prices charged the market for these drugs to generic by the groups for competitors. their essential and life saving The matter received local and medicines were directly responsible for international attention, being a world- the premature, predictable and first in terms of the licensing of generic avoidable deaths of women, men and companies to supply essential children living with HIV/AIDS. medicines to both public and private sectors in countries where such The complaint assembled the medicines are still protected by patent. testimonies of people living with HIV/ AIDS and health care workers who treat Generic Anti-retroviral people living with HIV/AIDS. It also Procurement Project and TAC assembled a range of expert evidence Treatment Project v Boehringer by collaborating with leading doctors, Ingelheim nurses, scientists, economists, lawyers In a second matter dealing with the and actuaries. In essence, the issue of access to essential medicines, complaint showed that even when the LTAU formally approached BI in allowance is made for the costs of September 2003 on behalf of the research and development, higher Generic Anti-retroviral Procurement profits, licensing fees and the incentive Project and the TAC Treatment Project, to develop new drugs, the prices of seeking non-exclusive voluntary these ARV medicines were excessive.2 licences for the two not-for-profit projects to import and distribute On the 16th of October 2003, the generic nevirapine products. Competition Commission announced

that it had decided to refer the 2 The LTAU published a report on the complaint entitled complaint to the Competition Tribunal “The Price of Life – Hazel Tau and Others v for adjudication. As a result of its year- GlaxoSmithKline and Boehringer Ingelheim: a report on the excessive pricing complaint to South Africa’s long investigation, the Commission had Competition Commission”. The report is available in found sufficient evidence to support hardcopy and online at http://www.alp.org.za/ view.php?file=/resctr/pubs/20030813_PriceCover.xml. the referral on the basis of prohibited 3 The settlement agreements with the ALP’s clients are excessive pricing as well as two available online at http://www.alp.org.za/ view.php?file=/camps/20030910_PatRights.xml. 18 ALP ANNUAL REPORT In this case, the LTAU worked within practices on the grounds that they were the framework of patent legislation, violating the provisions of the threatening a compulsory licensing Competition Act, the LTAU submitted a application in the event that the report in June 2003 containing the key voluntary licence requests were denied. findings of its investigation. By While separate from the Competition September 2003 the Competition Commission complaint, the Commission requested that the LTAU combination of the two matters helped convert the report into an official to bring BI to the negotiating table. By complaint. December 2003, the LTAU had In September 2003, LTAU lodged a successfully secured royalty-free formal complaint on behalf of the TAC voluntary licenses for nevirapine on against the NPG. The Commission has 4 behalf of the two projects. until September 2004 to conduct an While the Generic Anti-retroviral investigation into the allegation that the Procurement Project may only import NPG operates as a cartel, engaging in and distribute nevirapine products to prohibited price fixing and other its members (not-for-profit treatment restrictive practices. programmes), the TAC Treatment Operational Plan for Project is able to supply individuals in Comprehensive HIV and AIDS need of access, including beneficiaries Care, Management and of medical schemes. In addition, the Treatment for South Africa TAC Treatment Project is able to import In the second half of 2003, the LTAU generic nevirapine products for participated in the development of the patients who receive treatment that it Operational Plan for Comprehensive funds. HIV and AIDS Care, Management and Treatment Action Campaign v Treatment for South Africa in two key National Pathology Group ways. Early in 2003, the LTAU began First, the LTAU met with senior treasury consulting with key pathology industry officials to discuss strategic options for role-players as part of its own accessing a sustainable supply of investigation into private pathology affordable medicines. Following the practices. In the LTAU’s view, the private meeting, the LTAU followed up by pathology industry continues to act in providing treasury with information and anticompetitive ways that serve to limit legal memoranda on the issue. access to necessary laboratory monitoring and diagnostic services. Second the LTAU participated in the Through its representative body, the drafting of the civil society submission National Pathology Group (NPG), the to the National HIV and AIDS Treatment industry ensures that the high costs of Task team, working on three legal such services are artificially memoranda: legal aspects of reducing maintained. drug prices; the constitutional requirements for developing and With the knowledge that the implementing a treatment plan; and Competition Commission was informed consent and patient investigating various private health care confidentiality. The first two of these 4 The settlement agreement is available three memoranda were co-drafted by online at http://www.alp.org.za/resctr/ other/pdf/20031215_GSKBI4.pdf 19 ALP ANNUAL REPORT the Legal Resources Centre (LRC). The legislative actions, however, have yet to LTAU also drafted and assisted with the be taken. drafting of the following sections of the With this in mind, the LTAU hosted an submission: drug registration and international seminar in March 2003 supply; diagnostic and monitoring entitled “Implementing Doha, services; national patient register and Increasing Access: Rethinking Patent data collection. Law in the Context of a Right of Access Complaint to the Council for to Essential Medicines”. The purpose Medical Schemes on Substandard of the seminar was to: HIV/AIDS treatment • Explore the regulatory options In response to the findings of a study available under international law to conducted by the Centre for Actuarial reduce the prices of essential Research and the TAC on the provision medicines that are under patent of HIV/AIDS benefits in Medical protection; and Schemes, the LTAU submitted a • Explore the implications thereof for complaint on behalf of the TAC to the the state’s positive constitutional Council for Medical Schemes (CMS) obligations in respect of the right of calling for an industry-wide access to health care services. investigation into the provision of substandard HIV/AIDS treatment. The Seminar participants represented a complaint requested that the CMS wide range of bodies, including develops appropriate medical government departments, civil society treatment protocols for use by schemes. organisations, organised labour, academia, funders and the media. The CMS completed its investigation Speakers and chairpersons were also towards the end of 2003 and will be drawn from a diverse range of South publishing its findings shortly. In African bodies – including the addition, the CMS has used its findings Department of Trade and Industry; the to motivate for the inclusion of ARV Medicines Control Council; the treatment as a prescribed minimum University of Durban-Westville, benefit (PMB) for medical scheme University of the Western Cape and the beneficiaries. This is likely to come into University of the Witwatersrand; the effect by early 2005. TAC and the LRC – as well as Implementing the World Trade internationally from Brazil, India, Organization’s Declaration on Namibia and the United States.5 the TRIPS Agreement and Public Health Holding Civil In terms of international law and in the light of the Declaration on the TRIPS Society to Agreement and Public Health adopted by the World Trade Organisation in Account November 2001, South Africa is At the end of 2002, allegations of permitted to make active use of existing irregularities relating to the state as well as to introduce new legislative funding of an organisation of people provisions to facilitate the early market living with HIV/AIDS (the National entry of generic essential drugs and Association of People Living with HIV/ medical products. Such executive and 5 A copy of this report can be found at http://alp.org.za/ view.php?file/camps/20030910_PatRights.xml 20 ALP ANNUAL REPORT AIDS, or NAPWA) came to the fore. In In June, the LTAU drafted a written 2003, the LTAU instituted its first case submission and participated in the under the Promotion of Access to Portfolio Committee on Social Information Act (on behalf of the TAC), Development’s public hearings on the by submitting formal requests asking social development aspects of the about financial and funding Report of the Committee of Inquiry into information relating to NAPWA as well a Comprehensive System Of Social as government funding of NAPWA. Security for South Africa. These requests were submitted to the In June 2003 government published its Department of Health and NAPWA. National Health Bill. The LTAU made an When it was clear that neither NAPWA extensive written submission on the bill nor the Department of Health were as well as making an oral presentation prepared to comply with the requests, to Parliament’s Health portfolio the LTAU prepared legal papers to committee.7 proceed against both in the High Court, seeking orders to compel them to hand Opinions, over the requested information. An internal appeal against the memoranda and Department’s initial decision to refuse the request resulted in records relating legal advice to the information requested being Aside from the various legal opinions made available to the LTAU. In light of and memoranda drafted in preparation this, the LTAU was instructed by the TAC for legal action, the LTAU continued in not to proceed with the legal case. 2003 to provide an advisory service to Instead, the LTAU compiled a dossier a range of organizations and bodies, and report of its findings, largely based including the Medicines Control on the documents accessed through Council, the TAC, the TAC Treatment the Department, for the purposes of a Project, the Generic Anti-retroviral submission to the Auditor General. At Procurement Project, the Terrence the time of writing, the submission had Higgins Trust and Oxfam GB. not yet been made. In addition, the LTAU continued to provide legal advice on treatment- Legislation and related matters to a range of individuals and companies. In particular, the LTAU policy watch advised and assisted on various The LTAU participated in three aspects of workplace treatment important legislative and policy programmes, medical schemes matters processes in 2003. (including limits on AIDS-related hospitalisation, condition-specific In February, in collaboration with the waiting periods and the extent of HIV- ALP’s HIV Law and Policy Unit, the LTAU related benefits) and overcoming drafted a submission on the obstacles in the way of accessing Compulsory HIV Testing of Alleged cheaper generic medicines. Sexual Offenders Bill.6 6 A copy of this submission can be found at http://www.alp.org.za/view.php?file=/ restr/subs/20030328_SOB.xml 7 A copy is available at http:// www.alp.org.za/view.php?file=/resctr/ subs/2002028 subnhbl.xml 21 ALP ANNUAL REPORT Regional and International Work The LTAU concentrated on two areas of regional and international work. The LTAU met with Xavier Carim (South Africa’s chief trade negotiator) to discuss the potential implications of the United States/Southern African Customs Union Free Trade Agreement negotiations for access to essential medicines and health care services more broadly. In addition, the LTAU began work on producing a memorandum detailing the concerns of the LTAU and the TAC in this regard. The unit also advised the Canadian HIV/ AIDS Legal Network (CHALN) on its approach to the amendment of Canadian patent law regarding access to generic medicines for developing countries. In addition, the LTAU drafted a press release welcoming the Canadian government’s commitment to increasing access to essential medicines, and participated in a press teleconference with Médecins Sans Frontières and the CHALN. The LTAU also participated in the CHALN/ICASO/ALP expert consultation in Montreal (Canada) entitled “HIV treatments, vaccines and microbicides: developing an agenda for action”, as well as a number of regional training and advocacy workshops on legal aspects of access to treatment for HIV/ AIDS.

22 ALP ANNUAL REPORT advocacy, research and public education

The campaign for a sectors at NEDLAC had reached National Treatment Plan agreement on the text, government and access to antiretroviral treatment refused to return to the negotiations before a Cabinet decision had been During 2003, the ALP continued its taken on the use of ARV medicines. This work promoting and protecting the stymied the NEDLAC process for many human rights of people with HIV months, with meetings only resuming through research and advocacy. The in June 2003. ALP’s human rights advocacy covered numerous issues but, as in previous The deadlock over a Treatment Plan led years, there was a particular focus on to a political conflict between the TAC campaigning for a comprehensive and government dominating the early response to the HIV epidemic that part of 2003. On the opening day of included access to ARV treatment for Parliament, the 14th of February 2003, people with AIDS. This involved a TAC led an historic march of 15 000 continued close collaboration with the people to Parliament, calling on people TAC throughout the year. to ‘Stand Up for Our Lives’. On the 21st of March 2003, Human Rights Day, TAC The ALP’s 2002 annual report spoke was forced to launch its ‘Civil positively about the developments at Disobedience’ campaign. The ALP lent the end of 2002 and, in particular, the its support to both of these activities; process taking place within the ALP members joined the ‘treatment National Economic Development and train’ taking activists to Cape Town from Labour Council (NEDLAC) to draft a Johannesburg and in February and “Framework Agreement for a National March, the ALP presented training treatment and prevention plan” workshops on the basic tenets and agreement between business, labour, philosophy that underlie civil government and communities. disobedience and non-violent social Unfortunately, 2003 began with an change. ALP lawyers also trained TAC unnecessary controversy over the status activists in Gauteng about their legal of this agreement, with President Mbeki rights in the event of being arrested on and the Minister of Health initially demonstrations. On the days of civil denying that there was a document at disobedience demonstrations, the ALP all. Although by February 2003 the had lawyers on stand-by to assist the business, labour and community demonstrators if needed. 23 ALP ANNUAL REPORT The TAC civil disobedience campaign Applied research and advocacy: lasted from March to April 2003 and Children, PEP and Insurance involved a number of high-profile but disciplined demonstrations. Despite The ALP conducts a great deal of the USA’s war against Iraq dominating research. Some of this is published in media, it led to a national debate on academic journals and presented at the issue of ARV treatment and conferences. For example, at the first demonstrably elicited broad public South African AIDS conference, held in support for TAC’s demands. In mid- July 2003, four ALP staff had abstracts April, the campaign was suspended accepted and made oral presentations after a meeting between TAC leaders at the session on law and human and the Deputy President, Jacob rights. However most of the ALP’s Zuma. This led to a meeting between research is immediately applied to TAC and six Ministers who are support advocacy around policies, members of the South African legislation and emerging issues. Thus, National AIDS Council (SANAC) in June in addition to treatment advocacy, 2003, and a promise by the Ministers throughout the year the ALP continued of urgent resolution of the issue of an to be involved in a range of other legal antiretroviral treatment programme. and human rights issues. This promise was kept in August Some of these are described briefly 2003, when the Cabinet published below: the report of a joint task team of the • Children’s rights: The growing Health Department and the Treasury, number of deaths of parents due to which had been set up as a result of HIV/AIDS has led to the issue of the NEDLAC process, and children’s rights and needs recommended the speedy assuming more importance. As a introduction of an ARV treatment result the ALP began advocacy programme in South Africa. Soon after around the need for a better policy this, the ALP co-ordinated the research allowing bona fide care-givers to and writing of a civil society ‘shadow consent for HIV testing and report’, making a number of concrete treatment of children without legal proposals to the government on the guardians. This led to both litigation detail of implementation. This (see HIV Law and Policy Unit report) included a number of papers as well as collaboration with the prepared by the ALP.1 In the final national Departments of Social ‘Operational Plan’ which was Development and Health on the published by the government in drafting of guidelines.2 November 2003, as well as in the Health/Treasury report, it seemed as • PEP for rape survivors: The ALP if the South African government had remained actively involved in absorbed the lessons of the litigation monitoring the provision of post- over the provision of services to prevent exposure prophylaxis (PEP) services mother-to-child HIV transmission and was now more sensitive to fashioning 1 public policy on access to health care A copy of the submission can be found at http://www.tac.org.za/Documents/ that directly takes account of its legal FullSubmissionToTaskTeam-Draft-20030919.doc duties and the decision of the 2 A copy of the presentations can be found at http://www.alp.org.za/view.php?file=/resctr/cpaprs/ Constitutional Court in the TAC case. 20030910_DbnConf.xml 24 ALP ANNUAL REPORT to survivors of a rape through the Reconciliation. Together- with the public health service. Before April CSVR, the ALP has developed a 2002, PEP was not available to rape manual, “Health and Hope in Our survivors in the public health system Hands – Addressing HIV and AIDS outside the Western Cape. PEP in the aftermath of rape and woman involves the use of ARV medication abuse”. This comprehensive manual that can reduce the risk of aims to strengthen service provision contracting HIV after rape or sexual to survivors of sexual violence by assault. After a range of advocacy ensuring that health care workers initiatives and pressure from civil have access to accessible and society, Cabinet announced the roll- appropriate information. The out of PEP on the 17th of April 2002. manual locates the provision of PEP The ALP decided to conduct a study within a continuum of services that on the extent of roll-out of PEP in should be provided to survivors of order to assess the level and degree sexual violence and attempts to of policy implementation. In May explain the dynamics surrounding 2003 findings of the extent of roll- the provision of services. The manual out after 12 months were presented includes sections on rape and at the Medical Research Council domestic violence and the myths (MRC) ‘Gender-based Violence & that surround these crimes. The text Health Conference’. The study was of the manual will be finalized in extended to include a situational early 2004. analysis after 18 months which was Mpumalanga: At the beginning of presented at the ‘Reproductive 2003, the ALP and TAC had started Health Rights Priorities’ conference litigation against the MEC for Health in October. The study generated in Mpumalanga, alleging that she particular interest and requests for was acting in contempt of the court presentations on the topic came order in the TAC case on the from civil society and government. prevention of mother-to-child HIV 40 000 additional copies of the ALP transmission. A complaint against booklet entitled “Preventing HIV the conduct of the MEC was filed after Rape – Steps you can take to with the Human Rights Commission. protect your health” were printed and distributed.3 The ALP also In addition, the ALP acted in a number assisted GenderLinks – an NGO that of cases to defend doctors and NGOs focuses on gender and the media – against the conduct of the MEC in their ‘PEP Talk’ campaign. This (described more fully in the Legal Unit campaign involved fieldworkers report). doing spot-checks on the availability These actions, and the ALP’s and quality of sexual assault services collaboration with several investigative in various clinics and public journalists, turned a spotlight on the hospitals throughout South Africa. misgovernment of the Health An educational and information Department in this province. This workshop for civil society was contributed to an investigation into the conducted with the Centre for the running of the Department and Study of Violence and eventually to the removal of Ms 3 Information on PEP is available at: Sibongile Manana from the post of http://www.alp.org.za/view.php?file=/ MEC. camps/20020917 cmpgnpep.xml 25 ALP ANNUAL REPORT · Insurance: The ALP continued to advertisements are intended to receive cases dealing with insurance- educate people who wish to related HIV discrimination. Although purchase insurance products to no cases have been taken up in know and understand their rights. courts yet, the unit has worked with Teaching, public education and the AIDS Consortium and other civil work with the media society organizations to raise Where possible, staff write up the awareness of key issues. A campaign experience and lessons of these protesting HIV exclusion clauses in engagements for articles that are funeral policies led to one major published in a range of media. 16 insurer, Avbob, changing its policies. articles were published in 2003. These The ALP also developed a are listed in appendix B and many can partnership with the Life Offices’ be found on the ALP’s web-site. Association who, at the suggestion of the ALP, agreed to publish a series As in previous years almost all ALP staff of information advertisements made public presentations on HIV/ dealing with the rights of consumers AIDS, the law and human rights. In in relation to HIV and insurance. 2003, the ALP made oral presentations These are being published monthly on aspects of its work at 276 in popular newspapers at a cost to conferences, seminars and workshops. the LOA of over R1 million. The The table below breaks this down in greater detail:

Presentations made by ALP Staff members by sector Government NGO Education Religious Health Other International Total 25 114 44 2 17 62 12 276

Many of these presentations are made in response to invitations requesting the ALP to provide a speaker. However, in 2003 the ALP began to try to develop more systematic training courses. Thus, in early 2003, ALP staff lectured at the University of the Witwatersrand’s LLB course on HIV/AIDS and the Law. In August the ALP designed and presented a course on ‘The politics and Law of HIV/AIDS: Human Rights and Public Responsibilities’ for African post-graduate students from 22 countries, under the auspicies of the United Nations Development Programme (UNDP) and the University of SA (UNISA).

26 ALP ANNUAL REPORT Advocacy and Human Rights Training in Africa and internationally The ALP’s work, although focused on South Africa, is respected internationally. The ALP continues to work closely with UNAIDS and the WHO, sometimes providing technical expertise. During 2003 ALP staff presented papers or provided training in the United States, Canada, Nigeria, Lesotho and Zambia. The AIDS & Rights Alliance for Southern Africa (ARASA) The ALP is a founding member of the In February 2003 the ALP, AIDS AIDS & Rights Alliance for Southern Consortium and Southern African AIDS Africa (ARASA).8 This organisation Training Programme (SAATP) co-hosted serves as a regional network that assists a regional training workshop on AIDS human rights activists in Southern advocacy. This was attended by people African countries in drawing the from 10 countries in Southern Africa, important links between human rights and led to the development of the first and HIV/AIDS, and aims to increase the draft of a regional Code on Gender and capacity of NGOs and CBOs to conduct HIV/AIDS. In July the ALP provided work on HIV/AIDS and human rights. training at an ARASA leadership The ARASA co-ordinator is based in workshop held in Johannesburg and in Windhoek, Namibia, at the AIDS Law October the ALP assisted an ARASA Unit of the Legal Assistance Centre. A workshop on AIDS and human rights steering committee made up of people that was held in Lusaka, mainly for from a number of Southern African people from Zambia, Zimbabwe and countries plans and implements Malawi. activities.

8 http://www./ac.org.na/arasa/

27 ALP ANNUAL REPORT

As a result of pressure by the ALP, the Life Officers Association (LOA) agreed to embark on a campaign to educate consumers about HIV/AIDS and insurances. Prominent adverts were placed in Sunday newspapers and dealt with a range of issues. The ALP approved the content of each advert before publication

28 ALP ANNUAL REPORT

publications: research and legal literacy

The ALP puts a prime on increasing legal literacy on HIV/AIDS issues among people and organizations affected by HIV/AIDS. Easy-to-read pamphlets in a number of languages are published, as well as research reports and academic articles. In early 2003 the ALP undertook the publication of the third edition of the HIV/ AIDS and the Law: Resource Manual. The 2001 edition of the manual was updated and slightly expanded. A further 3,500 copies were published in May and demand for the manual remains great. 29 ALP ANNUAL REPORT Distribution of the third edition of the AIDS and the Law Resource Manual by Sector Sector # donated # sold Total Legal 17 1 18 Academic Institutions 54 25 79 Govt Departments 126 4 130 HIV NGOs 233 1 234 NGOs general 46 238 284 International NGOs 42 1 43 Trade Unions 5 0 5 Medical practitioners 2 3 5 Donor organisations 18 36 54 Business 4 119 123 Staff (Project) 19 0 19 Faith Based Organisations 5 1 6 Individuals 5 3 8 Book Stores 5 78 83 TOTAL 581 510 1091

In August two new ALP publications • Pregnancy and HIV/ AIDS: A were officially launched at the South handbook for pregnant women, African AIDS Conference held in their families, and others concerned Durban. These were: with making health decisions in the 1) Gender and HIV/AIDS: A Training context of HIV/AIDS. Manual for Southern African Media In July the TAC requested the ALP to and Communicators (joint develop a research report on the state publication with Gender Links) and of traditional healers and traditional 2) The Price of Life: A report on the medicines in South Africa. This report excessive pricing complaint to was finalised in November and is South Africa’s Competition available on the ALP website. Commission (joint publication with In 2003 work started on a manual that the TAC).1 aims to empower a wide range of users In October two further joint of the South Africa’s health system with publications with the TAC were information on health law and policy launched: that will allow them to take advantage of their rights. A manual on these issues • HIV in our lives: A book of has become all the more necessary in information sheets for people living the light of recent shifts in government with HIV, support groups and clinics.

1 This report is available on the ALP website at http:// www.alp.org.za/view.php?file=/resctr/pubs/ 20030813_PriceCover.xml 30 ALP ANNUAL REPORT policy regarding treatment of HIV/AIDS. A range of writers from the ALP and other organisations working in the field will contribute chapters to the manual. It is envisioned that the manual will be completed in 2004. The ALP’s publications are provided free on request and distributed in large quantities around the country to government departments, NGOs, CBOs, the private sector and learning institutions.

ALP publications distributed in 2003: HIV/AIDS Current Law and Policy: Women, HIV and AIDS 3 400 HIV/AIDS Current Law and Policy: Your Rights in the 4 410 Workplace HIV/AIDS Current Law and Policy: Your Rights to Healthcare 3 680 Preventing HIV after Rape 15 760 Guidelines on HIV/AIDS and the law for advice and legal 3 870 office workers The Price of Life: Hazel Tau and others vs GlaxoSmithKline 2 820 and Boehringer Ingelheim. A report on the excessive pricing complaint to South Africa’s Competition Commission HIV in our lives: A book of information sheets for people 131 living with HIV, support and clinics Pregnancy and HIV/ AIDS: A handbook for pregnant women, 74 their families, and others concerned with making health decisions in the context of HIV/AIDS

The ALP continues to have a very good by journalists to provide background relationship with both the SA and briefings and explanations about international media. ALP staff are issues. Staff keep a record of media frequently interviewed on the radio and interviews in their monthly reports. television, or quoted in newspapers. In These are summarized in the table on addition, ALP staff are often contacted the following page.

31 ALP ANNUAL REPORT

Television interviews with ALP staff National 24 International 5 Total 29

Radio interviews with ALP staff National 151 International 23 Total 174

Occasions when ALP staff are quoted in print media National 126 International 29 Total 155

ALP Resource Centre During 2003 the ALP Resource Centre moved to bigger premises to allow for greater access to staff members and visitors, and to make space for the increasing volume of materials housed by the Centre. The usual work of the Resource Centre involves information gathering and distribution, filing, maintenance as well as updating of the Centre database. The ALP website was further developed. Most of the ALP’s publications, articles and research papers by staff members can now be downloaded from the website.

32 ALP ANNUAL REPORT

Project management and administration

2003 saw the consolidation of the ALP’s regular updates on current areas of administration unit, with better internal work. In addition, the project’s two management systems being units met on a regular basis. Minutes implemented. The appointment of a of all these meetings were taken. project manager has helped to Each ALP staff member provides a strengthen the administration and monthly report. The heads of the management of the ALP. The ALP various units submit quarterly reports introduced an internal management to the project manager. The project committee in 2003, comprising the manager compiles the reports project head, the project manager and according to the specification of each the two unit heads. This committee donor. Liaising with donors and regular meets on a monthly basis, which has reporting continues to be a priority for also improved communication and the project. In addition, all staff management. members are assessed at yearly Throughout 2003, the administration performance appraisals in terms of unit convened monthly staff meetings university policy. Key performance at which staff members were able to areas are identified for each staff discuss and debate key issues affecting member and they are appraised the ALP as a whole. These meetings according to these areas. also afforded the various units of the project with opportunities to provide

33 ALP ANNUAL REPORT The ALP’s finances are managed strengthening the project and clearly according to the financial management defining the future of the ALP. Out of procedures of the university. The this process came the decision to project head and manager are restructure the ALP on the basis of two responsible for monitoring budgetary key units – the HIV Law and Policy Unit expenditure, with the project and the Law and Treatment Access Unit administrator being responsible for – as well as to focus more attention on processing requests for payment and public impact legal action and to the procuring of services. The ALP conduct research proactively to identify receives support from the CALS emerging legal issues. financial administrator and CALS bookkeeper. An external auditor audits As part of the project’s restructuring, the project at the end of the financial the ALP decided to rethink its approach year. One of the areas the ALP would to its paralegal work. Instead of seek to strengthen in the next year providing direct legal advice services to would be the implementation of a more a limited number of people, the ALP efficient financial system. would instead focus on capacity The project’s restructuring and building within university law clinics consolidation arose out of an internal and legal advice offices so that they are evaluation and assessment process better able to provide legal advice and that began with a review meeting in the information on HIV/AIDS. A more first half of the year, followed by a series detailed plan for this programme would of follow-up meetings, with the aim of be formulated early in 2004.

In August 2003, after years of advocacy, government announced its intention to develop a plan to provide anti-retroviral treatment to people with AIDS

34 ALP ANNUAL REPORT appendix

APPENDIX A

PRESENTATIONS AND PAPERS AT WORKSHOPS, SEMINARS AND CONFERENCES Jonathan Berger

• 21 January. AIDS Law Project (ALP) paralegals, • 31 March. CIPRO/ARIPO/EPO/UKPO regional University of the Witwatersrand, Johannesburg. forum on industrial property, Johannesburg. Training on patents and access to medicines. “Implementing Doha, Increasing Access to • 28 January. AIDS Consortium general meeting, Essential Medicines”. Johannesburg. Briefing on Hazel Tau and Others • 12 April. TAC paralegal training, Cape Town. vs GlaxoSmithKline and Boehringer Ingelheim. “Healthcare rights, social assistance and • 30 January. Peer counsellors, WITS Positive workplace rights”. Campaign, Johannesburg. Interactive training • 30 April. AIDS Consortium training workshop, session on advocacy and activism. Johannesburg. “Access to treatment as a human • 6 February. Regional HIV/AIDS Advocacy right”. workshop, Centurion. “International trade, • 6 May. Pharmaceuticals 2003 conference, Cape patents and access to essential medicines”. Town. “Implementing Doha: towards an • 6 February. Gordon Institute of Business appropriate regulatory framework” Science, Johannesburg. “Politics, access to • 8 May. Panos Southern Africa workshop, treatment and the Treatment Action Campaign Livingstone, Zambia. “International trade law, (TAC)”. patents and access to treatment”. • 18 March. AIDS Law Project seminar: • 14 May. Infectious Diseases Society, Midrand. Implementing Doha, Increasing Access: “Access to affordable medicines for HIV: rethinking patent law in the context of a right of examining the possibilities for generic access to essential medicines, Johannesburg. antiretroviral medication”. “Implementing Doha: what should government • 24 May. World Bank meeting: The Role of be doing?” Generics and Local Industry in Attaining the • 25 March. Public Health 2003 Conference, Cape Millennium Development Goals in Town. “Understanding health systems Pharmaceuticals and Vaccines, Washington, DC, development and health policy in a constitutional USA. “Generic medicines policy and law: the context”. South African experience”. • 29 March. TAC paralegal training, Cape Town. • 10 June. World Education Ntinga/Khula “Role of law and human rights in the epidemic”. Enterprise Finance workshop: AIDS and

35 ALP ANNUAL REPORT Enterprise Development: Confronting • 29 August. Centre for the Study of AIDS, Liesl the Challenge, Johannesburg. “NEDLAC University of Pretoria, Pretoria. “Using Framework Agreement on a National the law to increase access to treatment: Gerntholtz Prevention and Treatment Plan on HIV/ Hazel Tau and Others vs • 21 January. Central Methodist Church, AIDS”. GlaxoSmithKline and Boehringer Johannesburg. “HIV and Education”. Ingelheim”. • 3 July. TAC stakeholders’ briefing • 30 January. Centre for Palliative meeting, Johannesburg. Report back on • 1 September. University of the Learning, Johannesburg. “HIV and the SANAC, NEDLAC, civil disobedience and Witwatersrand School of Public Health: workplace”. Hazel Tau and Others vs Masters of Public Health students, • 25 February. AIDS Consortium, GlaxoSmithKline and Boehringer Johannesburg. “Implications of the Johannesburg, “HIV testing and Ingelheim. Constitution for Public Health Policy” disclosure”. • 4 July. Annual Labour Law Conference, • 6 September. TAC Leadership School, • 7 March. University of the Witwatersrand Johannesburg. “Workplace HIV/AIDS Cape Town. “The World Trade Law Students, Johannesburg. “The TAC treatment programmes: what are the Organization and the TRIPS Agreement”. judgement”. legal issues that arise?” • 15 October. Briefing for People to People • 10 March. Gender Links, Johannesburg. • 11 July. School of Public Health, International, University of the “Gender, HIV and human rights”. University of Pretoria, Pretoria. Witwatersrand, Johannesburg. “Work of • 20 April. CSVR and ALP, Johannesburg. “Understanding Public Health Policy and the LTAU”. “Provision of PEP to rape survivors”. Health Systems Development within a • 20 October. Canadian HIV/AIDS Legal • 23 April. St Matthew’s School, Soweto. Constitutional Framework”. Network & MSF Canada press “The work of the ALP”. • 19 July. TAC Gauteng Provincial conference (via teleconference). Congress, Vaal. Facilitated commission “Amendments to the Canadian Patent • 9 May. Gender Links, Botswana. “HIV, on the TAC constitution. Act implementing the August 30th WTO gender and the media”. • 29 July. AIDS Consortium general decision on generic medicines”. • 14 May. Soul City, Johannesburg. meeting, Johannesburg. Report back on • 28 October. Workshop for Health-e News “Update on HIV and the law”. NEDLAC, possible deregistration of Service reporters and editor, Cape Town. • 11 June. CSVR and ALP, Pretoria. PEP nevirapine and the treatment plan. “Access to essential medicines”. manual workshop. • 30 July. AIDS and Rights Alliance of • 5 November. TAC Treatment Project, • 24 June. Youth Power, Kagiso. “Children Southern Africa (ARASA) workshop: Johannesburg. “Work of the TAC and HIV”. training of trainers, Johannesburg. Treatment Project Gauteng Selection • 27 June. Ethics Committee, University “International trade, patents and access Committee”. of the Witwatersrand, Johannesburg. to treatment for HIV/AIDS”. • 14 November. University of the “Informed consent for orphans”. • 2 August. TAC National Congress, Witwatersrand, Johannesburg. Proposed • 27 August. Parklane Clinic, Durban. Proposed amendments to the settlements in Hazel Tau and Others vs Johannesburg. “HIV and gender”. TAC Constitution. GlaxoSmithKline and Boehringer • 2 September. Department of Bioethics, Ingelheim. Complainants in Hazel Tau • 4 August. South African AIDS University of the Witwatersrand, and Others vs GlaxoSmithKline and Conference, Durban. “Using the law to Johannesburg. “PEP”. increase access to treatment: Hazel Tau Boehringer Ingelheim. • 25 September. Departments of Health and Others vs GlaxoSmithKline and • 19 November. McGill University, and Social Development, Pretoria. Boehringer Ingelheim”. Montreal, Canada. “Politics, access to “Informed consent for children”. • 16 August. TAC paralegal training, Cape treatment and TAC”. • 12 November. Children’s homes, Soweto. Town. “Providing paralegal services”. • 21 November. Faculty of Law, University “Consent and HIV testing”. • 21 August. UNISA/UNDP winter school, of Toronto, Canada. “The Price of Life: A • 18 November. Metropolitan Life, Johannesburg. “Access to treatment for Legal Challenge to the Cost of Johannesburg. “New development in the HIV/AIDS”. Antiretroviral Therapies in South Africa”. workplace”.

36 ALP ANNUAL REPORT

• 27 November. HIV Clinicians Society. • 11 September 2003. Life Line, •26 January. Oxfam, Action AID, MSF AIDS “Overview of legal developments”. Johannesburg. “HIV in the workplace”. Seminar, World Social Forum, Porte Chloe Hardy • 30 September 2003. Harriet Shezi Clinic, Alegre, Brazil. “The TAC and access to Chris Hani Baragwanath Hospital, treatment struggles”. • 12 March 2003. AIDS Legal Network Soweto. “Social assistance grants”. •28 January. AIDS Consortium general training for Mpumalanga stakeholders, • 22 October 2003. DRAMAID, meeting, Johannesburg. Briefing on Witbank. “HIV and insurance” and “The Vereeniging. “HIV and your rights in the Hazel Tau and Others vs right to health”. workplace”. GlaxoSmithKline and Boehringer • 14 March 2003. Rape Crisis Centre at Ingelheim. • 11 November 2003. Township AIDS Leratong Hospital, Kagiso. “Legal issues Project training for counsellors, • 6 February. Regional HIV/AIDS Advocacy concerning counselling for PEP”. Johannesburg. “HIV in the workplace”. Workshop, Centurion. “Law as an • 27 March 2003. Helen Joseph Hospital advocacy tool in SA”. • 18 November 2003. Legal Resources HIV support group, Johannesburg. “HIV Centre training for paralegals, • 22 February. Evening plenary, Ditsela and the law”. Johannesburg. “HIV and the law”. Labour Law Summer School, • 2 April 2003. Wits Law Students LSC Braamfontein. “The role of trade unions HIV programme, Johannesburg. “HIV and Fatima in the struggle for access to treatment”. social security”. Hassan • 25 February. ESSET People’s Budget • 7 April 2003. Rape Crisis, Kempton Park. Week Conference, Cape Town. “AIDS • 20-24 January. Women and AIDS Support “PEP and new legislation on rape”. Orphans – South Africa’s time bomb?” Network (WASN) Training the Trainers, • 25 April 2003. Community AIDS Treatment Literacy Workshop, Nyanga, • 17-18 March. Seminar on patent reform: Response, Johannesburg. “HIV and the Zimbabwe. “Treatment Access - Human “Implementing Doha, Increasing Access: law”. Rights Issues”. rethinking patent law in the context of a • 7 May 2003. Doctors at Helen Joseph right of access to essential medicines”, • 20-24 January. Women and AIDS Support Hospital, Johannesburg. “Legal and Johannesburg. “Competition Law and Network (WASN) Training the Trainers, ethical issues concerning PEP”. Policy in South Africa”. Treatment Literacy Workshop, Nyanga, • 12 May 2003. AIDS Legal Network Zimbabwe. “The battle for treatment in • 23 April. Globalising Resistance, Panel training for Limpopo stakeholders, SA”. discussion with Arundhati Roy, FXI, PSC, Polokwane. “Access to health rights”. University of the Witwatersrand, • 20-24 January. Women and AIDS Support Johannesburg. “Globalising resistance • 23 – 24 June 2003. Youth Power Network (WASN) Training the Trainers, – the struggle for treatment”. Conference, Kagiso. “The right to health Treatment Literacy Workshop, Nyanga, care” and “Making legal referrals”. Zimbabwe. “Legal and ethical aspects of • 13 April. Training workshop for TAC • 31 July. Rosebank Union Church, treatment”. paralegal volunteers, University of Cape Town Branch, Cape Town. “Workplace Johannesburg. “HIV and the law regarding • 20-24 January. Women and AIDS Support rights, health care rights and social domestic workers”. Network (WASN) Training the Trainers, assistance”. • 5 August 2003. Harriet Shezi Clinic, Treatment Literacy Workshop, Nyanga, Chris Hani Baragwanath Hospital, Zimbabwe. “The role of medical • 30 April. AIDS Consortium Training Soweto. “HIV and insurance”. professionals and volunteers in providing workshops, Johannesburg. “Access to Treatment and Human Rights”. • 12 August 2003. Life Line East Rand, treatment”. Benoni. “PEP and new legislation on • 25 January. Bread for the World HIV/AIDS • May. IIR Pharmaceuticals Conference sexual offences”. and Human Rights workshop on ‘Access 2003, Cape Town. Panel discussion with Nathan Geffen from TAC and Jonathan • 22 August 2003. CALS Labour Project to Treatment’, World Social Forum (WSF), Berger on access to medicines as a Labour Law Up-date, Johannesburg. “HIV Porte Alegre, Brazil. “Treatment Access human right – Implications for the in the workplace”. in Africa – the case of SA”. pharmaceutical industry. “The right of access to health care services”.

37 ALP ANNUAL REPORT

• May. Training workshop – Institute for the WTO, Cape Town. “Doha, the WTO Johannesburg. “The Ins and Outs of AIDS the Advancement of Journalism (IAJ), and Access to ARV medicines”. in South Africa”. Johannesburg. “The role of the media in • 3 September. Phantsi WTO Coalition • 19 February. Department of Social relation to HIV/AIDS and the media, Teach In, Cape Town. “How ordinary Development national conference on reporting, confidentiality and the role of people experience the impact of the WTO” HIV/AIDS, Midrand. “Improving access civil society”. Case studies. to social grants for PWAs”. • May. SAHRC round table discussion on • 6 September. TAC Leadership School, • 26 February. SASLAW seminar, HIV / AIDS and Insurance, Johannesburg. Cape Town. “‘The European Union (EU)”. Johannesburg. “Labour Law and HIV – “HIV/AIDS and the Insurance Sector”. • 28 October. Health-e News Service from Joy Mining to HIV”. Co-presented • May. IIR Conference on Human Resource Round Table, Cape Town. “Access to with J Joni. Strategies for Managing HIV/AIDS in the Essential Medicines” (with Jonathan • 27 February. Durban Chamber of Public Sector, Johannesburg. “Ensuring Berger). Commerce & Industry, Durban. “The compliance with HIV/AIDS related labour • 3 November. TAC Health and Districts NEDLAC Agreement and responsibilities legislation” Development Workshop for TAC Branch of business”. • May. Guest Lecture, HIV/AIDS and the leaders, Cape Town. “The Legislative • 27 February. Durban Chamber of Law Course, University of the Health Framework – Promotion of Commerce & Industry, Durban. Witwatersrand Law School, Access to Justice and Information Acts”. “Workplace programmes and the Johannesburg. “How the law and • 14 November. Briefing workshop on GSK challenges of treatment”. regulatory mechanisms can be used to and BI settlement proposals in • 27 February. Treatment Action bring the prices of medicines down and Competition Commission case, Campaign, KwaZulu-Natal. “Civil increase access to medicines: the University of the Witwatersrand, disobedience”. Co-presented with M Competition Commission case”. Johannesburg. Presented on settlement Richter. • 24-25 June. Generic Medicines Market proposals. • 14 March. TAC Gauteng Treatment Conference, Volkswagen Conference • 1 December. COSATU/ TAC World AIDS Literacy School, Johannesburg. “Barriers Centre, Midrand. “The legalities of Day Rally, Cape Town. “Your rights as a in access to essential medicines”. introducing generic competition to worker”. • 15 March. SA Parastatal and Tertiary increase access to essential • 3 December. Basic Income Grant (BIG) Institutions (SAPTU), Pretoria. “The medicines”. – Reducing Poverty Conference, challenge of HIV for trade unionists”. • 28 June. Western Cape TAC Provincial Johannesburg. “BIG and HIV/AIDS – • 17/18 March. ALP ‘Access to Medicines’ Congress, University of the Western Reducing Poverty”. seminar, Johannesburg. Opening and Cape. Facilitated Commission on the • 5 December. Southern African AIDS closing comments. Constitution of the TAC. Training and HIVOS Conference, Harare, • 26 March. Rhodes University/IAJ • 2-4 July. 16th Annual Labour Law Zimbabwe. “Theoretical Steps in workshop on ‘public journalism’, Conference 2003, Sandton. Plenary planning an advocacy campaign”. Johannesburg. “Hearing community session: ‘New issues in HIV/AIDS: Mark voices in the media”. testing, the provision of ARVs and Medical Aids’. “Medical Schemes, Heywood • 27 March. Centre for Civil Society, University of Natal, Durban. Presented Employee benefits and HIV/AIDS”. • 17 January. Doctors at Chris Hani Harold Wolpe Memorial Lecture “The • 4-7 August. South African National AIDS Baragwanath Hospital, Perinatal HIV Silence of the Lions : Denialism in the Conference, Durban. Presented paper on Research Unit, Soweto. “Overview of ANC and the AIDS epidemic”. “Treat the People Now: Constitutional responses to the HIV/AIDS epidemic”. • 16 April. WISER/Department of Issues Relating to Access to Treatment” • 3 February. ALP/SAT/AIDS Consortium Sociology, University of the (Panel discussion with Jonathan Berger, Workshop, Pretoria. “Advocacy Witwatersrand, Johannesburg. “The Liesl Gerntholtz, Lisa Forman). Strategies in Southern Africa”. • 27 September. AIDC Evening meeting on • 5 February. Johnnic trainee journalists,

38 ALP ANNUAL REPORT

politics, economics and moral • 18 July. Facilitated workshop on HIV and • 1 October. Action Aid International, questions around ARV treatment”. workplace issues for team leaders for Johannesburg. “Work of the ALP and • 24 April. American Women Health BMW, Pretoria. TAC”. Workers, Johannesburg. “AIDS in South • 19 July. Keynote speaker at Gauteng TAC • 2 October. Planning workshop for HIV/ Africa”. Provincial Congress, Evaton. AIDS, Health Economics & Research • 5 May. Botswana Training of Trainers, • 27 July. Opening address at ARASA Division (HEARD), University of Natal, Gender, HIV/AIDS and the media, Regional Leadership Training, Durban. Facilitated day on legal issues Gaberone, Botswana. “The epidemiology Johannesburg. linked to HIV/AIDS. of gender and treatment of HIV/AIDS”. • 2 August. Presented National • 7 October. TAC NEC, Johannesburg. • 9 May. LLB students, University of the Secretary’s report at TAC National Presented report on settlement talks Witwatersrand Law Faculty, Executive Committee Meeting, Durban. with GSK. Johannesburg. “The PMA case and legal • 18 August. UNISA/UNDP course for • 10 October. Doctors and nurses from issues around SA drug policy”. African post-graduate students, Northwest Province Department of • 21 May. CIDA, Canadian High Johannesburg “HIV/AIDS, Health, Klerksdorp. “Rolling out ARV Commission staff, Pretoria. “Current Discrimination and Human Rights”. treatment – Human Rights Issues”. priorities and issues for funding HIV/ • 19 August. UNISA/UNDP course for • 15 October. University of Pretoria AIDS in South Africa”. African post-graduate students, workshop on ‘Litigating Children’s • 28 May. Journ-AIDS Roundtable, Cape Johannesburg. “HIV/AIDS and civil Rights’, Pretoria. “Public impact Town. “Legal considerations in media society”. litigation”. reporting on HIV/AIDS”. • 20 August. Gave speech at Wits ‘Positive’ • 22 October. Conference on Corporate • 6 June. Presentation to Health Workers, public meeting (with Khabzela, YFM DJ), Strategic Responses to HIV/AIDS, Chris Hani Baragwanath Hospital, Johannesburg. Johannesburg. “Legal issues in the workplace”. Soweto. • 20 August. Foreign Affairs Institute, • 10 June. Presentation to Coca-Cola Africa Pretoria. “HIV/AIDS in South Africa, • 23 October. Inwent Southern Africa Communications & Public Affairs staff perspective of an activist”. Seminar, Durban. “Implementing HIV programmes in the workplace”. forum, Johannesburg. • 28 August. Department of Social • 29 October. COSATU, Johannesburg. • 24 June. Gauteng Department of Social Development, Pretoria. “HIV and Children Panellist on Gender Studies debate re Services, Johannesburg. “HIV, Disability with Legal Guardians”. Co-presented with ‘Achievements after 10 years of and Legal Issues”. L Gerntholtz. government’. • 26 June. Youth Power Conference, • 6 September. Gauteng Midwives • 13 November. CALS Conference, Johannesburg. “TAC civil disobedience Association, Krugersdorp. “HIV/AIDS and Johannesburg. “TAC’s Legal Strategy”. campaign”. Treatment”. • 25 November. COSATU Central Executive • 27 June. Ford Foundation HIV/AIDS • 10 September. Gauteng Social Services Committee, Johannesburg. Settlement Roundtable, Johannesburg. “Advocacy Department/ CRC workshop, proposals in Tau v GlaxoSmithKline and and policy”. Johannesburg. “HIV and the law regarding Boehringer Ingelheim. • 27 June. Airports Company of South children”. • 27 November. Durban Chamber of Africa, Senior Executives, Kempton Park. • 19 September. Department of Health ARV Commerce HIV/AIDS Symposium, “Legal issues in the workplace”. Task Team and Clinton Foundation, Durban. “ARVs in the Workplace”. • 4 July. Chaired plenary session on HIV, Pretoria. Civil Society submission. • 3 December. British Embassy and DFID, Labour Law Conference, Johannesburg. • 26 September. CALS/Community Law Pretoria. Overview of the AIDS situation, • 5 July. Keynote speaker at TAC Eastern Centre Seminar, Johannesburg. “Public politics and treatment plan. Cape Provincial Congress, Mdantsane. Impact Litigation – Lessons and Tips”. • 5 December. DCI Lesotho, Lesotho • 11 July. Facilitated workshop on HIV and • 30 September. ‘Opening Remarks’ to Government and NGOs, Maseru, workplace issues for team leaders BMW, TAC/Traditional Healers Organisation Lesotho. Training programme on key Pretoria. workshop on shared strategies. aspects of HIV/AIDS. 39 ALP ANNUAL REPORT Jennifer Joni • 6 June. Team leaders at BMW SA, • 2 October. HIV Clinicians’ Society, Rosslyn, Pretoria. “HIV in the workplace”. Johannesburg. “HIV/AIDS and ethics”. • 17 January. Johannesburg Development • 20 June. Team leaders at BMW SA, Agency, Johannesburg. “HIV in the Manana Rosslyn, Pretoria. “HIV in the workplace”. workplace – Development of HIV workplace policies”. • 23 June. Presentation to representatives Madiba from various NGOs in Kroonstad on HIV • 29 May. Kendal Power Station, Witbank. • 21 January. TAC Peer Educators, TAC JHB in the workplace, Kroonstad, Orange Free “HIV/AIDS and the law in the workplace”. office, Johannesburg. “HIV and the law,” State. • 25 June. Youth Power, Kagiso. “Social • 22 January. ALP paralegal interns, • 26 June. Johannesburg. Presentation Assistance”. University of the Witwatersrand, to employees of the AIDS Charities Johannesburg. “HIV in the workplace”. • 11 September. Lifeline, Braamfontein. Foundation. “HIV in the workplace- “HIV/AIDS and the law in the workplace”. • 6 February. US Peace Corp volunteers, development of HIV policies”. Mogwase, Sun City. “HIV and the Law”. • 11 November. Township AIDS Project, • 27 June. Team leaders at BMW SA, Braamfontein. “Rights to Healthcare”. • 13 February. Managers of International Rosslyn, Pretoria. “HIV in the workplace”. Health Distributors (IHD), Johannesburg. • 25 November. Harriet Shezi Children’s “HIV in the workplace”. Teboho Clinic, Chris Hani Baragwanath Hospital, Soweto. “Rights to Healthcare”. • 26 February. SASLAW Seminar, Kekana Johannesburg. “HIV testing in the • 28 January. DENOSA, Pretoria. “HIV/ Teboho workplace”. AIDS and legal issues”. • 28 February. Bronkhorstspruit Netcare Motebele • 3-7 February. AC/ALP/SAT regional Hospital Health Care workers, • 27 January. ALP Paralegals, training, Pretoria. “Elements of an Mpumalanga. “Confidentiality & HIV Johannesburg. “HIV, Insurance & advocacy strategy”. testing”. Medical Aid”. • 3 March. Matho-Mayo Development • 1 March. Bambanani Support group •28January. NEDCOR (on behalf of HIV Information, Education and members, Residencia, Vaal Triangle. Management Solutions), Johannesburg. Communication. “Women’s rights in “Confidentiality and disclosure”. “HIV & Employment”. relation to HIV/AIDS and abuse”. • 6 March. Senior management at IHD, • 10, 13 & 19 February. NEDCOR (on • 4 March. VSO. “Women and HIV/AIDS”. Johannesburg. “HIV in the workplace”. behalf of HIV Management Solutions), • 7 March. Population Unit Uniwest. Johannesburg. “HIV & Employment”. • 15 March. Health care workers at “Population development and HIV/AIDS”. Garden City Clinic, Johannesburg. • 10 March. Eskom, Johannesburg. “HIV “Confidentiality and HIV testing”. • 9 April. National Union of Mineworkers, & Human Rights”. Johannesburg. “HIV/AIDS and legal • 27 March. Annual Inhouse Legal • 14 March. NEDCOR (on behalf of HIV issues”. Congress on HIV in the workplace, Management Solutions), Johannesburg. Rosebank, Johannesburg. “In-house • 12 May. CARE International, “HIV & Employment”. legal counsel’s legal obligations towards Johannesburg. “TAC Advocacy work”. • 7 & 11 April. NEDCOR (on behalf of HIV employees living with HIV/AIDS”. • 23-25 June. Youth Power, Johannesburg. Management Solutions), Johannesburg. • 29 April. De Beers Venetia Mine, Mosina, “Brainstorming on HIV/AIDS and law, “HIV & Employment”. Northern Province. “HIV in the confidentiality and disclosure”. • 25 April. JOHNNIC Media House (on Workplace”. • 4 July. BMW, Pretoria. “Impact of HIV/ behalf of HIV Management Solutions), • 10 May. Bambanani Support Group AIDS in business and how to plan as a Johannesburg. “HIV in the workplace”. members, Sebokeng, Vaal Triangle. team-leader”. • 11,13, 23 June. NEDCOR (on behalf of “Confidentiality and disclosure”. • 25 July. BMW, Pretoria. “Impact of HIV/ HIV Management Solutions), • 30 May. Team leaders at BMW SA, AIDS in business and how to plan as a Johannesburg. “HIV in the workplace”. Rosslyn, Pretoria. “HIV in the workplace”. team -leader”. • 25 June. Youth Power, Johannesburg. “HIV and Insurance”.

40 ALP ANNUAL REPORT

• 8 & 17 July. NEDCOR (on behalf of • 3 March. School of Practical Excellence, • 15 August. RAISA VSO, Pretoria. “HIV/ HIV Management Solutions), Johannesburg. “Management of HIV/ AIDS and Human Rights”. Johannesburg. “HIV in the workplace”. AIDS in Programmes”. • 19 August. UNISA/UNDP Winter School, • 9 July. University of the Witwatersrand, • 11 March. TAC Gauteng, Johannesburg. Johannesburg. “AIDS denialism”. Johannesburg. “HIV & Human Rights”. “Philosophy and Principles underlying • 20 August. UNISA/UNDP Winter School, • 5 August. Oxygen For Life (Pty) Ltd, Civil Disobedience”. Johannesburg. “Customary law and HIV”.

Johannesburg. “HIV Workplace Policy”. 14 March. TAC Treatment Literacy, • 27 August. ALP paralegal training, • 26 August. Eskom, Johannesburg. “HIV Johannesburg. “Access to health care”. University of the Witwatersrand, in the Workplace”. • 28 March. “HIV/AIDS and the Law” Johannesburg. “HIV/AIDS & Gender”. • 28 August. Paralegals (ALP & TAC), course at the University of the • 2 September. Steve Biko Bioethics Johannesburg. “HIV & Workplace Witwatersrand law school, Discussion Forum, Johannesburg. “Roll- Issues”. Johannesburg. “HIV/AIDS legislation in out of PEP services”. 6 SADC countries”. • 3 & 4 September. NEDCOR (on behalf of • 11 September. Department of Social HIV Management Solutions), • 8 April. Gender-based Violence & Health Services – Sexual assault services Johannesburg. “HIV/AIDS & Conference, Johannesburg. “Roll-out of workshop, Johannesburg. “Roll-out of Employment”. PEP services by the Department of PEP services”. Health: Taking stock of the progress • 27 November. Vista University, Pretoria. • 9 October. HURISA Human Rights Camp, made (April 2003)”. “HIV & the Law”. Lagos, Nigeria. “HIV/AIDS & Human • 8 April. Gender-based Violence & Health • 4 December. Vista University, Pretoria. Rights”. Conference, Johannesburg. “Young “HIV & the Law”. • 15 October. Reproductive Health Rights Women’s Access to Support services Priorities conference, Johannesburg. following sexual assault or rape”. Marlise Richter “Roll-out of PEP after 18-months”. •15 January. Department of Health, • 12 April. CARE International, • 21 October. Department of Pretoria. “AIDS Discrimination”. Johannesburg. “HIV/AIDS & Human Environmental Affairs & Tourism, Rights”. • 20 January. ALP Paralegal Interns, Johannesburg. “The South African Legal University of the Witwatersrand, • 21 April. ALP/CSVR PEP workshop, Framework on HIV/AIDS”. Johannesburg. “AIDS discrimination” Johannesburg. “Roll-out of PEP services • 23 October. ARASA/ZARAN workshop, by the Department of Health: Taking • 5 February. ALP/AIDS Consortium/SAT Lusaka, Zambia. “HIV/AIDS and Human stock of the progress made (May 2003)”. Advocacy Workshop, Centurion. Rights”. “Role of law in discrimination”. • 24 June. Youth Power, Kagiso. “HIV/AIDS • 23 October. ARASA/ZARAN workshop, & Gender”. • 5 February. ALP/AIDS Consortium/SAT Lusaka, Zambia. “HIV/AIDS and legal Advocacy Workshop, Centurion. “Civil • 25 June. TAC Treatment Literacy, frameworks”. Disobedience: History, Philosophy & Krugersdorp. “HIV/AIDS and the Law”. • 25 October. ARASA/ZARAN workshop, Strategies”. • 28 July. AIDS & Rights Alliance for Lusaka, Zambia. “Civil Society and • 13 February. Treatment Action Campaign Southern Africa Train-the-trainer Advocacy skills”. train, Johannesburg, Cape Town. workshop, Kempton Park. “HIV/AIDS and • 3 November. GenderLinks Workshop on “Philosophy and Principles underlying Gender”. Media and Gender, Johannesburg. “PEP Civil Disobedience”. • 4 August. South African AIDS roll-out after 18 months”. • 23 February. TAC, Cape Town. “Philosophy Conference, Durban. “Customary law, • 20 November. GenderLinks ‘PEP Talk’ and Principles underlying Civil gender and HIV/AIDS”. meeting, Johannesburg. “Overview and Disobedience”. • 12 August. University of Pretoria ‘Good status of PEP in the public sector in • 28 February. TAC, Durban. “Philosophy Governance’ course, Pretoria. “HIV/ South Africa”. and Principles underlying Civil AIDS, Human Rights & Workplace • 26 November. Traditional Healers Disobedience” policies”. Collective, Alberton. “Overview of

41 ALP ANNUAL REPORT

Traditional Healing in South Africa and Clinical trials of traditional medicines”. • 29 November. HSRC/Kellogg Foundation “HIV/ AIDS in Southern Africa” Colloquium, Johannesburg. “HIV/AIDS legislation in 6 SADC countries”. • 29 November. Gauteng, Johannesburg. Department of Health “Extent of PEP roll-out after 18 months”. • 30 November. UNOHCHR, Pretoria. “HIV/AIDS legislation in 6 SADC countries”.

42 ALP ANNUAL REPORT appendices

APPENDIXAPPENDIX BB

PARLIAMENTARY SUBMISSIONS AND BRIEFINGS Jonathan Berger

• 6 February. Compulsory HIV Testing of Alleged past, present and future – Successes and future Sexual Offenders Bill. Co-drafted submission challenges (with Jonathan Berger and Teboho (with Liesl Gerntholtz and Marlise Richter) Motebele). • 21 February. Briefing on HIV/AIDS: Portfolio • 10 June. Parliamentary Portfolio Committee on Committee on Health, Cape Town. Work of the Social Development - Public hearings on the Law & Treatment Access Unit (LTAU) (with Fatima Taylor Report (Report of the Committee of Enquiry Hassan and Teboho Motebele). on Comprehensive Social Security), Parliament, • 4 June. Report of the Committee of Inquiry into a Cape Town. Presented submission on behalf of Comprehensive System Of Social Security for TAC/ALP. South Africa. Drafted submission on the social • 22 September. Parliamentary Portfolio development aspects of the report (on behalf of Committee on Social Development Joint Civil the ALP and TAC). Society Submission on Social Security Bill, Cape • 31 July. National Health Bill. Drafted submission Town. Presented on HIV/AIDS section. (on behalf of the ALP and TAC). • Draft Social Assistance Bill. Assisted with joint • 18 August. Presented joint ALP/TAC submission civil society submission on the Draft Social to the Portfolio Committee on Health, Cape Town. Assistance Bill on behalf of TAC / ALP and a “National Health Bill”. number of other civil society organisations. • 18 August. National Health Bill. Drafted edited Teboho version of submission for public hearings (on behalf of the ALP and TAC). Motebele • 21 February. Parliamentary Health Portfolio Liesl Gerntholtz Committee, Cape Town. “Insurance & HIV/AIDS” • 5 February. Portfolio Committee on Justice, Cape (with Jonathan Berger and Fatima Hassan). Town. Presented ALP submission on compulsory • 8 August. Parliamentary Portfolio Committee on HIV Testing for alleged sex offenders. Finance, Cape Town. “Discrimination against Fatima Hassan people living with HIV/AIDS in the Insurance Industry”. • 21 February. Briefing to Parliamentary Portfolio Committee on Health, Parliament, Cape Town. The history of the ALP 1993 – 2003 – The ALP

43 ALPALP ANNUAL ANNUAL REPORT

appendices

APPENDIX C

PUBLICATIONS BY STAFF MEMBERS

Jonathan Berger Other 10 January. TAC Treatment Project. 30 August. National Treasury. Drafted Drafted opinion on legal issues raised by opinion on legal options available to the the formation of the Project. state for reducing the prices of 24 February. Medicines Control Council antiretroviral drugs. (MCC). Drafted opinion on copyright 5 September. Mail & Guardian. “WTO issues relating to patient information drugs agreement trips up poor countries”. leaflets and package inserts. Drafted opinion piece on implications of 8 March. Generic Antiretroviral WTO’s August 30th decision regarding Procurement Project (GARPP). Drafted generic drugs. opinion on legal implications of accessing 8 September. Civil Society Submission on generics in defiance of patent protection. the Operational Plan for the Rollout of an 17 April. Q&A, Mail & Guardian. Drafted Antiretroviral Programme. Co-drafted the response to questions dealing with the annexure on drug procurement for the anniversary of the April 17th 2002 Cabinet civil society submission to the National Statement on HIV/AIDS. HIV and AIDS Treatment Task Team (with Fatima Hassan and Geoff Budlender 7 July. Oxfam. Drafted briefing note for (Constitutional Litigation Unit, Legal Oxfam on trade and intellectual property Resources Centre)). issues in preparation for President Bush’s visit to South Africa 29 October. Medicines and Related Substances Act and Regulations. Drafted 21 July. Asylum seeker in the United submission for the MCC on the parallel Kingdom. Drafted report on access to importation of generic medicines (on treatment in South Africa behalf of the TAC Treatment Project). 2 August. Competition Commission 29 October. ThisDay. “Drugs ruling: A blow complaint: Hazel Tau and Others v for or against public health?” Drafted GlaxoSmithKline and Boehringer opinion piece on Competition Commission Ingelheim. Co-edited report entitled “The decision to refer excessive pricing Price of Life” (with Mark Heywood and complaint to the Competition Tribunal for Fatima Hassan) adjudication. 44 ALP ANNUAL REPORT 17 December. ThisDay. “AIDS complaint lodged by Hazel Tau and Mark drugs for the price of a cup of others against GSK and BI (Co- coffee”. Drafted opinion piece on edited with Jonathan Berger and Heywood implications of settlement Mark Heywood). Academic agreements reached in Hazel Tau November. Submitted first draft: Contempt or Compliance? The TAC and Others v GlaxoSmithKline and The role of the amicus curiae in case after the Constitutional Court Boehringer Ingelheim (co-authored Constitutional jurisprudence. For judgment, ESCR Review, 4: 1, with Fatima Hassan). Constitutional Law in South Africa, March 2003. Liesl Chaskelson et al Ed. Preventing Mother to Child HIV 17 December. This Day. “AIDS Transmission in South Africa: Gerntholtz drugs for the price of a cup of Background, Strategies and Academic coffee”. Implications of settlement Outcomes of the TAC case against “HIV testing and treatment and agreements reached in Hazel Tau the Minister of Health, South AIDS orphans”, ESR Review, Vol 4 and Others v GlaxoSmithKline and African Journal on Human Rights, no, 3. September 2003. Boehringer Ingelheim (co-authored Vol 19 part 2, 2003. Other with Jonathan Berger). AIDS Analysis Africa, Vol 14 (4) Dec “HIV/AIDS, children and the Access to Information. 2003/Jan 2004. “TAC Builds Civil Buccleuch Montessori Nursery Memorandum of legal options Society Support for a Successful School Case - where to from available to the TAC re allegations ARV roll-out”. here?” The Teacher, October of mismanagement of funds by Other 2003. NAPWA. 13 February. Business Day op ed Homes Medical Outreach Project article. “Treatment framework Access to Information. on “Legal and Ethical issues must be signed”. Memorandum on Access to surrounding HIV testing of Information Act and requests by March. “Policy and law around HIV/ Abandoned Infants - the need for TAC relating to mismanagement of AIDS and human rights”. Wits government .guidelines” - prepared funds by NAPWA. Alumni. in June. Private pathology practices. 23 March. Sunday Times op ed “Gender violence and HIV/AIDS” Submission to the Competition article. “The right to be angry”. and “Gender, human rights and Commission of South Africa 6 April. Sunday Tribune op ed HIV/AIDS” in “Gender and HIV/ regarding private pathology article. “The Silence of the Lions”. AIDS Training Manual for Southern practices and the role of the 8 April. The Star op ed article. “The African Media and National Pathology Group (NPG). death of Kebareng Moketsi”. Communicators”. Civil Society Submission on the 16 May, Op ed in the Sowetan, Fatima Operational Plan for the Rollout of “TAC Story Hogwash”. Hassan an Antiretroviral Programme. Co- May. New introduction for 3rd drafted annexures on edition of HIV/AIDS and the Law Other constitutional law; drug March. The South African Resource Manual. procurement; confidentiality and Competition Commission Case: June. Wrote draft SADC Heads of patient information systems for Hazel Tau and Others v Government Declaration on HIV/ the civil society submission to the GlaxoSmithKline SA (Pty) Ltd and AIDS. National HIV and AIDS Treatment Others”, Canadian HIV/AIDS Policy Task Team (with Jonathan Berger Case Study 11, ‘South Africa: The and Law Review (with Jonathan and Geoff Budlender TAC case and the Right to Berger). (Constitutional Litigation Unit, Legal Medicines’ interview in ‘Litigating July. The Price of Life. Booklet on Resources Centre)). Economic, Social and Cultural the Competition Commission Rights: Achievements, Challenges

45 ALP ANNUAL REPORT and Strategies’, Centre on Housing workplace: developments since the the AIDS Law Project, 27 Rights and Evictions, Geneva. implementation of the November. Co-edited, ‘The Price of Life’, ALP/ Employment Equity Act. Labour “Roll-out of PEP services by the TAC Publication. Law Updates. Department of Health: Taking Co-edited ‘HIV in Our Lives’, ALP/ Other Stock of the Progress One Year on” TAC publication. June. HIV testing in the workplace- Women Health Project Review Legal obligations towards Winter. Chapter introduction and 5 re- employees living with HIV. Shield printed articles from past editions “AIDS-specific legislation in six Magazine. of AIDS Analysis Africa in Still Southern African countries”. AIDS Everybody’s Business, the Teboho Analysis Africa Vol.13 (5) February/ Enlightening Truth about AIDS, March. Metropolitan Group, November. Motebele March. Wrote TAC briefing on the Academic October. “Medical Aid Schemes, Civil Disobedience campaign, ‘Dying HIV Status and Material Non for Treatment’. disclosure”. South African Medical May. Wrote TAC memo for Growth Journal. and Development Summit (GDS). Other July. Wrote National Secretary’s July. “HIV & Insurance – Discussion report for TAC National Congress. Document”. September. Wrote memo on duties of employers to employees on ARV Marlise Richter treatment in the event of dismissal Academic or resignation (assisted by L iesl “The UNGASS Declaration of Gerntholtz and Jonathon Berger). Commitment on HIV/AIDS: A Review of Legislation in Six September. Edited and co- Southern African countries” ordinated TAC submission on a Canadian HIV/AIDS Policy & Law ‘Peoples’ ARV programme’ to Dept Review Vol.8, No.1, April 2003. of Health ARV Task Team. “Medical aid schemes, HIV status October. Wrote ALP memo on and ‘material non-disclosure” issues related to HIV testing of South African Medical Journal children and privacy for HIV Vol.93, No.10, October 2003 (co- Clinicians Society Paediatric authored with Teboho Motebele). discussion group (with Liesl Gerntholtz) February. The South African Law Commission report on December. Wrote memo for “Compulsory HIV Testing of Persons SANAC on operational plan for Law in Sexual Offences Cases”. and Human Rights sector in 2004. June. “Combat, stress and HIV; Jennifer Joni Psycho-neurology and Academic Immunology”. April 2003. Case note on Irvin & Other Johnson v Trawler & Line Fishing “Traditional Medicines and Union & Others (2003) 24 ILJ 771- Traditional Healers in South Africa”. 773. Discussion Paper prepared for the June/July. HIV testing in the Treatment Action Campaign and

46 ALP ANNUAL REPORT appendix

APPENDIX D

POSITIONS HELD BY ALP STAFF

Jonathan Berger Member of Gauteng Selection Board member, Amandla AIDS Advisory Committee, TAC Treatment Project. Fund. Member of the board of the Lesbian and Member Wits HIV/AIDS Research Gay Equality Project. Institute Steering Committee. Chloe Hardy Wits HIV/AIDS and Human Rights “Research Champion”. Member of the Executive Committee of the AIDS Consortium. Jennifer Joni Fatima Hassan Executive Committee Member, AIDS Consortium (Until February 2003) Election Officer for TAC elections (overseeing election process, delegate Member of the Trade Union Task Team list, nominations, voting, volunteers and (Solidarity Centre) (Until June 2003) results in collaboration with the IEC), TAC Member of the South Africa Society of National Congress Durban (1-3 August). Labour law (SASLAW) (Until June 2003) Mark Heywood Marlise Richter TAC National Secretary (until August). National Reference group of the TAC National Treasurer (from August). Siyam’kela Stigma Project. Member, UNAIDS Global Reference Advisory member of the Canadian Group on HIV/AIDS and Human Rights. Institutes of Health Research/Queen’s University Project on “Transforming violent Member, Johannesburg AIDS Council. gender relations to reduce the risk of HIV/ Legal and Human Rights sector AIDS among South African young women representative, SA National AIDS Council and girls”. (from October). Steering Committee member, AIDS and Steering Committee member, AIDS and Human Rights Alliance of Southern Africa Human Rights Alliance of Southern Africa (ARASA). (ARASA).

47 ALP ANNUAL REPORT

Poster presentation at the first South African AIDS Conference, Durban, August 2003

48 ALP ANNUAL REPORT

AIDS Law Project (ALP) PHYSICAL ADDRESS Centre for Applied Legal Studies University of the Witwatersrand D J Du Plessis Building West Campus Braamfontein

POSTAL ADDRESS Private Bag 3 Wits 2050 South Africa Telephone: +27 11 717-8600 Fax: + 27 11 403-2341 Website: www.alp.org.za E-mail: [email protected]