Part Two: A nice country.
In It's a Nice Country! We meet the people who have used the Constitution to build democracy and a better life for all. 1st, we meet Irene Grootboom whose struggle for housing culminated in a landmark ruling that is seen as crucial for the establishment of greater socio-economic rights. In the Ngxuza case, we see how, even in the new democratic order, the abuse of power has to be challenged. It’s a Nice Country! also explores the case of the TAC’s battle for ARVs to prevent mother-to-child transmission of HIV and we see how TAC members who, through their work, education and community mobilisation used the Constitution to achieve access to life saving treatment.
Zackie Achmat: We used to live here. And we had...there were beautiful houses here. And then what happened to our houses?
Washiela Abrahams: The Group Areas Act came and then we were too black.
Zackie Achmat: Families were destroyed by apartheid. The Pass Laws, the Immorality Act destroyed families. But the Group Areas Act physically destroyed our homes. Washiela, Mashnoona and I stood on this field and watched as the bulldozers destroyed our homes. Oh municipality, how could you kill New Rest? How could you hate New Rest?
Grootboom v Government 2000
Zackie Achmat: The Grootboom case is one of the most important cases that have come before our Constitutional Court in the last ten years. Nearly a thousand homeless people in New Rest in the Western Cape occupied some land, put shelters on it. The DA municipality then came with eviction orders and sent in bulldozers. The courts then said that the actions of the municipality mirrored the apartheid state. However the ANC national government joined the DA provincial government in appealing the judgment against the homeless people to the Constitutional Court. The government and the DA lost. On behalf of a unanimous Constitutional Court, Justice Zac Yacoob gave one of the most remarkable judgments that defends the constitutional right of homeless people to housing and to access to shelter.
Justice Yacoob: The Constitution, requires the state to devise and implement, within its available resources, a comprehensive and co-ordinated programme, progressively to realise the right of access to adequate housing.
Zackie Achmat: The judgment affirms that the state must take positive steps to realise social and economic rights. But unfortunately the court, the Constitutional Court, refused to set down targets, time frames and deadlines to give the Grootboom community homes. As a result the Grootboom community has been left to the mercy of the bureaucracy and its endless timetable of misery.
Irene Grootboom: Viva Grootboom viva, viva Grootboom viva. Down with the Shacks, down. Down with the shacks, down. We want houses! It's hard living here. Seeing that we've been living here for four years. Seeing that the government promised us that we will have houses after one year. It's been four years and we are still living here.
Representative from New Rest: Hello to everyone. We are here today because of Grootboom. We are involved in the Grootboom case because we want to convince the government to help us, because we have nothing. They must give us houses in South Africa so we can live like other people. We have children. Here are our children. These children are growing up in a filthy environment. This place is not good. The water is dirty. There's plastic lying around and the children are exposed to diseases.
Geoff Budlender: We got into Grootboom really because we felt that this was an opportunity to show that these rights have some bite and some content and some meaning for poor people.
Zackie Achmat: Comrades, I'm here for two reasons: The first reason is that I belong to an organisation called the Treatment Action Campaign; we fight for treatment for people living with HIV. I have HIV and live with HIV and because of your case we were able to mobilise, we were able to win treatment for people living with HIV. So we should have come to say thank you to you a long time ago.
Irene Grootboom: All I know is that we won the case and we've been waiting for the houses. I was going to wait for a certain period then I would stand up again and ask, "Why are we still here?"
Mawethu Sila: [The problem is that we were promised houses after we had won the case. They gave us a court order to stay here for 18 months. What upsets us is that it's been four years and we're still living here.]
Geoff Budlender: The most important thing about Grootboom is that it establishes what's already in the Constitution which is that the test of government action to fulfil the rights is that whether the action is reasonable. And what Grootboom said was two important things: it underlined that reasonable means reasonable in the way in which we ordinarily understand it. And then it said, most profoundly, it said in the context of a Constitution which is transformative; reasonable means giving high priority to the needs of the very poor. It means you can't just say to them, ‘you wait while we do other things'.
Win Trengrove: And that reasonableness requirement means reasonable on the ground and doesn't mean reasonable in the book or reasonable in the air. It does mean that the government, at all three levels, is required to demonstrate that it has a policy for the provision of basic amenities and that policy is a reasonable one; not merely on the books but in the way that it is implemented on the ground.
Irene Grootboom: I'm angry with the government because they promised us houses but we're still sitting here. We're dying here. Our children are dying. My daughter can't live here with me. It breaks my heart. She has to live far from me because I can't let my daughter live in these conditions. My daughter is big for her age...We live in danger; we live in all that is ugly. So she has to live far away from me. If the government kept its promise and gave us the houses they had promised us, things would have been much better now.
Zackie Achmat: Did you sit on Grootboom?
Johann Kriegler: Yes. I sat under the Big Tree! Grootboom was really important to lawyers, not to people. Ultimately Grootboom failed because Mrs. Grootboom never got her house. And the basic housing policy didn't really change.
Geoff Budlender: I think the great disappointment of Grootboom is not the failure of government to respond quickly and adequately to the judgment. I think the real disappointment of Grootboom is that civil society hasn't taken it up and worked with it because it's such a powerful tool. It's filled with opportunities and we haven't used it adequately.
Edwin Cameron: The horrifying thing about apartheid was that it was legally systematic, it was a system for the sustained subjugation and sub-ordination and humiliation of black people based on their race but done through law. And apartheid down to its finest details was crafted in legal regulations. This wasn't just white farmers with sticks, there were white farmers with sticks, this wasn't just policemen with batons and there were, we know too bitterly and black know all too bitterly policemen with batons, but apartheid was perpetrated, it was an outrage against human dignity, perpetrated through a legal system.
Gilbert Marcus: What emerged particularly in the ‘80's was very, very interesting; civil rights organisations and NGOs like the United Democratic Front, like the release Mandela campaign proactively used the courts; the courts represented a site of struggle. The courts gave communities and particularly repressed communities a voice, which they were denied in the body politic. In 1984 I was asked to argue a case in front of what was then called the Publications Appeal Board for the unbanning of the Freedom Charter which I did and that case succeeded and from 1984 onwards the Freedom Charter was an unbanned document and within the space, literally, of weeks the mass democratic movement in this country adopted the charter as their manifesto. Just have a look at what it had to say; in a sense it was a bill of rights. It was a blueprint, if you like, for what South Africa could look like under a democratic dispensation.
Zackie Achmat: Ten years ago we realised a key demand of the Freedom Charter, ‘the people shall govern' now is the time to realise its other demand, ‘people shall share in the country's wealth'. The Constitution gives us the opportunity to do this by using the law proactively. Wake up if you are sleeping, we are faced with a problem.
Eastern Cape Department of Welfare v Ngxuza, Meltafa and others 2001
Zackie Achmat: South Africa has an unemployment rate of more than thirty percent. The poorest households in our communities survive on old-age pensions and grants yet the Eastern Cape government cancelled people's pensions without due process. Ordered by the High Court to reinstate the pensions and the grants, the Eastern Cape Government appealed all the way to the Supreme Court of Appeal in Bloemfontein. This case reveals how provincial government punishes poor people instead of corrupt officials.
Nozolile Meltafa: [I remember when I was suffering and this child was sick. I couldn't eat. It was very hard for me then. I was working for a big company. I had to travel far. I gave birth to four children. One died and now I have three. One is married and out of the house and another one lives in Pretoria. Their names are Ntombi, Nomphelo and Nombulelo.]
Nombulelo Meltafa: [I started getting sick when I was in standard 5 or 6. I had problems with my health. My teacher would bring me home. Sometimes, when I was walking home from school we'd be walking on a straight road, but suddenly I would sway from side to side. Instead of walking through the gate, my mom would catch me crawling through a hole in the fence. That was when my illness started. I applied for a disability grant in 1978. I got the results in December. I started receiving the money in January 1979. In January 1979 I received a quarter of the money.]
Zackie Achmat: Twenty years later Nombulelo's grant was cancelled without a hearing.
Nombulelo Meltafa: [In March 1998, my mom went to the Department of Social Welfare. I was standing outside when I saw my mother crying. I asked her what was wrong and she replied, ‘I didn't get the grant. They told me it's not available'.]
Zackie Achmat: The tradition of lawyers serving poor communities is an important part of our history. As a youth activist, Dullah Omar defended myself and many other young people for no charge at all. Dullah, our first justice minister, spent his life defending poor people, pass law victims and workers, very often his family went without money and Farieda, his wife, had to earn money by selling vegetables and fruit at the Salt River market. We need young lawyers, black and white, to continue this tradition of sacrifice and engagement some of these lawyers are today to be found at the Legal Resources Centre.
Mzuphela Maseti: I became aware that there exists here a position of a fellow for 2001 here at the LRC. When I was a student it was a place I aspired to be a part of. So I quickly drafted my CV and faxed it, and I still remember it was the 23rd November 2000. So I came for an interview and it was a hassle, I didn't have any money; I had to sell some for my things to make sure that I came for an interview. If you have regard for what was going on in the ‘80's, even though I was young, detention without trials invariably LRC was there to assist those who couldn't assert their rights then. Detention without trial for example, hangings at the time, people like Arthur Chaskalson he's a top notch lawyer, I mean, we're aware of them. He was also involved in the Madiba trial, so I was aware that this organisation was composed of people of high calibre who were aware of human rights.
Sarah Sephton: I just wanted to work for an organisation whose values I felt comfortable with and I didn't want to work for a commercial firm. I didn't fit in. The case started long before Mzu and I joined the LRC. But they started off doing individual cases on behalf of people whose grants had been cancelled and they noticed that there was just an increasing number of people that were coming to the LRC and saying, ‘hey my grant's been cancelled. I don't know why. I wasn't given any notice. I wasn't given any warning'. The LRC eventually realised that it was much greater than they had initially thought.
Nozolile Meltafa: [I heard about the Black Sash when I lost my money. The Black Sash helped me until I got my money back from Home Affairs. People were telling me that the Black Sash would help me get my money back.]
Mzuphela Maseti: The Constitution section 32 states very clearly that everyone has the right to administrative justice. Which means, for example, that if you have to make the decision to cancel a grant: give reasons, inform that particular person of the fact that you're cancelling his grant. They didn't have regard to that.
Sarah Sephton: We went to court for Ngxuza, Meltafa, and two other people and we asked the court to declare that their grants had been cancelled unlawfully and that their grants must be reinstated with back pay and interest and costs of that application. But then we went on to say...to ask the court to give us permission for those four people to represent the class and the class were all those people whose grants had been unlawfully cancelled from 1 March 1996 to date, which was in September 2000.
Mzuphela Maseti: People were not afforded an opportunity to be heard, which is crucial. You are faced with a situation where people do not...where their only source of income is their disability grant. And you, at best, must inform those people that you intend to do this process
Nozolile Meltafa: [When I went [to the Department of Welfare] to find out if the grant was available, they said it wasn't available yet. Then I asked them, ‘why?' They said you ask too many questions, because of your lawyers.' They said it to me, Nombulelo and Mr. Ngxuza. I was very upset but I didn't want to respond because my child was sick. They were very rude to us because they said we depended on our lawyers. I stopped paying attention to them because they said we knew nothing. I told them, ‘I'm not fighting with you'. ‘You were sleeping and I woke you up". We received a cheque for R14, 000.]
Nombulelo Meltafa: [Sorry, didn't we get a cheque for R1, 000 for two months?]
Nozozile Meltafa: [No, the cheque which we took to the lawyers.]
Nombulelo Meltafa: [Oh, that first cheque for R14, 000 that we gave back.]
Nozozile Meltafa: [They asked me to call Nombulelo to sign for the money. What did they say?]
Nombulelo Meltafa: [They said, ‘don't bother us again'.]
Sarah Sephton: Department officials went with local political...local politicians and pressurised these people to accept the cheques and what happened is Mrs. Meltafa and Mr. Ngxuza arrived at our office with these cheques for.... I think Mr. Ngxuza's was in the region of R44, 000.
Nombulelo Meltafa: [After we received the cheque, Sarah said, ‘if you want to use the money, you can. But you must know that you might not get another cheque next year.' My mother replied: "Nombulelo's grant problems are in your hands".]
Sarah Sephton: And so all four of them didn't hesitate in saying, ‘no we're not accepting the offer. We understand that there is going to be a delay for us and it will be some time before we get our money but if it's going to help thousands of other people we're fine in not accepting that offer'.
Nozozile Meltafa: [There are many people who are afraid to get help, because they are scared of being ridiculed. Even with me, people I didn't know would say, "there goes Mrs. Meltafa, the one with the lawyers'.]
Sarah Sephton: Obviously we were delighted with the Supreme Court of Appeal Judgment.
Nombulelo Meltafa: [I still get my cheque deposited in Standard Bank. And after that?]
Nozozile Meltafa: [That was the end. This is the man who gave me freedom: Mandela. I have the right to go to lawyers. Mandela has done good things for us. Now we have the right to change anything that's wrong. But don't be silly. You have to challenge it properly, with respect. We are very happy with the way things are going and we want it to continue. But there are still people who are not accessing their grants. Don't worry about what people think. Do what you have to and move forward.]
Sarah Sephton: I'm going to read from the Supreme Court of Appeal judgment where Judge Cameron says, "all this speaks of a contempt for people and process that does not befit an organ of government under our constitutional dispensation. It is not the function of the courts to criticise government's decisions in the area of social policy but when an organ of government invokes legal processes to impede the rightful claims of its citizens, it defies the Constitution which commands all organs of the state to be loyal to the Constitution and requires that public administration be conducted on the basis that people's needs must be responded to'.
Nozozile Meltafa: [It has been a beautiful change. I'm glad that the change happened now. At least now I can rest.]
Zackie Achmat: The Treatment Action Campaign's mobilisation to prevent HIV transmission from mother to child built on the Grootboom and Ngxuza cases but TAC members and allies like the Children's Health Centre, doctors and nurses built a consensus outside the courts first. The Grootboom principle that the state has the duty to defend the poorest and most vulnerable people first informed the TAC case.
Minister of Health v Treatment Action Campaign 2002
Sipho Mthati: I was introduced to TAC at a time when, as a young person, as a young black person in South Africa, I was looking for a home, a political home. It was only when I came to a TAC meeting organised in Gugulethu, I had been to a couple before, where I really made my decision to join because for the first time I noticed that there are people who were talking about HIV. You know, I had never been to a meeting before where people were already talking so openly about HIV and saying, ‘I'm living with HIV and I'm not ashamed and I know my rights'.
Queenie Qiza: [I'd like to say to everyone in the world: be strong, be supportive and be active. Be as active as I am. I'd like to say that I love you all. Those with HIV: stay alive. Don't give up hope!]
Sipho Mthati: Queenie was one of the first people I met in TAC. I worked with her in Gugulethu to build a branch. She was one of the most inspiring women living with HIV I'd met because while she had very little formal education, she educated me about knowing your rights; she educated me about claiming your space in society. Just thinking about people like that, that takes me through the difficult times each day. Because when you remember those people, you know that we can't play with TAC.
Zackie Achmat: On many occasions, Queenie Qiza and I marched together for HIV treatment. On 28th November 2000, as she lay dying in her shack, Queenie wrote 39 postcards to President Mbeki. She appealed to him to implement a programme to prevent mother-to-child transmission of HIV. On that same night my cousin Fareeda Abrahams, the sister of Washiela and Mashnoona, also died of AIDS-related illnesses.
Busisiwe Maqungo: I fell pregnant and gave birth to a girl in 1999. On the 9th April. Then I found out that my baby was HIV positive. Her name was Nomazizi. The only thing that I concentrated on in TAC was MTCT. I think it was natural because I lost my baby to mother-to-child-transmission of the virus. Another important thing about TAC was that it made me feel good to know that I'm fighting for medicines that will help people, even though I could not be helped. But someone now in the same situation I was in then will be helped.
Sipho Mthati: I remember the morning we went to present a briefing at the Health Committee. I think, for me, it was a turning point in many ways.
Busisiwe Maqungo: We were together and we expressed our feelings as people living with HIV. We told them what challenges we were facing. We were hoping that government would do something.
Sipho Mthati: I had been to Parliament before but my engagement with Parliament was basically to go and hear what Parliament does. It was not about coming to tell Parliament, ‘this is what you need to do'. And going there with that agenda alone was very empowering.
Geoff Budlender: The law becomes an instrument for change when it is part of a broader strategy, part of broader social movement or whatever else it may be. And the law is used as part of your toolkit. That's the story of the TAC case.
Zackie Achmat: Geoff Budlender is the best lawyer I know; he's respectful of his clients and Geoff is also one of the few lawyers who understands how the Constitution supports the social justice objectives of the government and civil society.
Geoff Budlender: I was born in Port Elizabeth. I grew up in a liberal household; my parents were founding members of the Progressive Party. I became involved politically in the late ‘60's, early ‘70's, at the time that the Black Consciousness movement was really taking off. I got to know Steve Biko quite well after that and he had a big, a very big, influence of my political development. What he taught me was about the need for whites to understand their role in the struggle against apartheid; to understand better what they could do, what they couldn't do, where they could be useful, where they couldn't be. I had grown up knowing that white liberals were the nice people who were doing the right thing; black people, of course, would be appreciative of it and should want to hold hands with us. It was a shattering moment to discover that life wasn't like that.
Manto Tshabalala-Msimang: We don't believe that the only way to prevent mother to child transmission is by using antiretrovirals. (Minister of Health, World AIDS Conference, Durban 2000)
Launch of TAC court case. 21 August 2001.
Busisiwe Maqungo: If one person is able to save the life of their child, why can't another do the same? If a rich person can buy themselves Nevirapine and AZT to save their child, what about poor people? Does it mean their children must be left to die? Because, we all know about survival of the fittest. But it's survival of the richest in South Africa. Everyone deserves the right to life.
Thembeka Majali: This is the launch of our court case. We are calling upon the South African government to implement or to roll-out PMTCT (prevention-of-mother-to-child-transmission) to all the MOUs (maternal obstetrics units) in South Africa.
Busisiwe Maqungo: I'm also here supporting this Court Case against our government because I think it is necessary for the government to implement the mother-to-child-transmission prevention at all the maternal obstetrics units in South Africa, not only in Cape Town.
Zackie Achmat: The Treatment Action Campaign has launched an application today in the Pretoria High Court for the government to implement mother-to-child-transmission prevention programmes. The Minister of Health and the MECs of all nine provinces are named as respondents in this court case.
Gilbert Marcus: The nevirapine case involved five court appearances in six months, three in the High Court and two in the Constitutional Court. What was at stake in that case was literally the lives of newly born children. Every day that went by that these children were denied access to this medication, there was the very, very real risk that they would become HIV positive and that they would die, according to the statistics put out by the government, within the first five years of their life.
Sipho Mthati: I was challenged to read big documents and having come through Bantu education, to be given something thicker than six hundred pages to read is like, ‘no, I'm sorry'. And also technical information. TAC needed to prepare its own cadres to be able to answer questions, to know the political reasons why we were going to court, to know how the science of HIV works.
Mandla Majola: We have done our ground work. The government knows us. The government is aware of our intent. The government is feeling the pressure. The drug companies are feeling the pressure. Everybody is feeling the pressure. I'm also feeling the pressure right now.
Pholokgolo Ramothwala: As staff members and TAC volunteers in the province, we had to sit down and divide work: who's going to speak to labour, who's going to speak to support groups, who's going to speak to other organisations like SANCOCO, who's going to go to communities. We needed a buy in from everybody.
MTV Awards 2001, Germany.
Joshua Jackson: And this year's Free Your Mind Award goes to TAC and here to accept the award on their behalf is Pholokgolo Ramothwala and Busisiwe Maqungo.
Pholokgolo Ramothwala: In South Africa we are living in the mercy of the drug companies despite the millions who face certain death. People are still buying their lives from drug companies; so we want to say the drug companies must stop putting profits before the lives of people in South Africa and the world.
Busisiwe Maqungo: The price of drugs is not the only problem we face. Last year I lost my first child Nomazizi before her first birthday to HIV. She could not lead a normal live because she was denied her Constitutional rights by the South African government. TAC has been left with no choice but to take the South African government to court. I urge everyone to support our court case for mother-to-child-transmission prevention. I thank you.
Busisiwe Maqungo: I attended so many workshops, so countless, I attended so many workshops, I attended so many marches, I attended so many pickets.
TAC marches in 6 provinces. 2 May 2002.
Sipho Mthati: We wanted communities to be the ones who were saying we want this programme and we want it here and we want it now.
Vusi Nhlapo (Then National Education, Health and Allied Workers' Union President): Urge the government that it must speedily implement its roll-out of the MTCT programme.
His Grace Njongonkulu Ndungane: We also value our instruments which guard democracy, like the courts. That we affirm the independence of the judiciary as one significant element in the whole process of our growing democracy.
Sipho Mthati: Personally for me it was a very enriching process. A very trying process, because there were a lot of times when you doubt; could we win this.
SABC News, 24 March 2002.
Newsreader (SABC News, 24 March 2002): The fight against HIV/AIDS is coming to the courts, the whole issue between government and the TAC regarding the roll-out of nevirapine. A very controversial issue. To discuss this we are joined now by our Health Minister doctor Manto Tshabalala-Msimang.
Manto Tshabalala-Msimang: My own opinion is that the judiciary cannot prescribe from the bench.
News reader: Will you stand by what ever the court decides?
Manto Tshabalala-Msimang: No, I think the courts and the judiciary must also listen to the regulatory authorities both from this country and the United States.
News reader: So are you saying no?
Manto Tshabalala-Msimang: Yes I'm saying no. I am saying no.
Arthur Chaskalson: The steps that have to be taken to comply with the order that we make should be taken without delay. We make the following order: sections 27 (1) and (2) of the Constitution require the government to devise and implement, within its available resources, a comprehensive and co-ordinated programme to realise progressively the rights of pregnant women and their newborn children to have access to health services to combat mother-to-child-transmission of HIV.
Busisiwe Maqungo: I remember the final day of the court case. When I heard the news I was in TAC offices and I thought I was the happiest woman on earth that women are going to get nevirapine and AZT. It felt so good, it really felt so good.
Pholokgolo Ramothwala: This morning I was telling my sister that, I actually sent her a sms on the 27th, and said to her: "our children are going to grow up free because of the democracy that we've got now."
Geoff Budlender: What TAC shows is that the Constitution can be enforced in many ways. It's enforced in the streets, it's enforced in the press, it's enforced in Parliament and it's enforced in the courts. And what it shows, what TAC shows, is that when you have a strategy, when you have a social movement with a strategy which understands the Constitution and plugs in the legal work in the appropriate way then the Constitution is very powerful in the courts.
Busisiwe Maqungo: I think that our country has got the best Constitution ever in the world. But it's just paper. It's written on paper. For instance, we can challenge the government because it is in the Constitution that every citizen of South Africa has the right to treatment and women have reproductive rights. But through mobilisation, people gained their constitutional rights.
Sipho Mthati: You need to guard your victory at the otherwise it gets lost and it remains at the level of policy and big fat documents but it doesn't get to people.
Busisiwe Maqungo: My new baby. It was very difficult for me to face. I knew I was going to take nevirapine, I knew that was my responsibility. And he tested negative. I was the happiest woman ever. I knew nevirapine works.
Zackie Achmat: The Constitution can be used to implement a pro-poor, a pro-human rights agenda. But as we learned from the Grootboom case, the law on its own is not enough. Social mobilisation is the only guarantor of delivery. That is the lesson of the Treatment Action Campaign case. Today, instead of eighteen research sites, government has rolled out mother-to-child prevention programmes to more than one thousand five hundred sites across the country.
Maria Hadebe: First-born passed away with AIDS and then this one is the second born and I used this Nevirapine and I get ... this one he is negative.
Zackie Achmat: So what's his name?
Maria Hadebe: This one is Nevirapine ... Lebogang Nevirapene. This baby ... here when I was in hospital the sisters say, "Hey, this name is going to be bad for the baby, because the baby is going to be in danger, everybody is going to ask what's wrong with you because they call you Nevirapine." Me I say, "It's me I'm saying that." They say, "No you can call him, but you can call another name because he is going to be in danger because everyday they are going to ask the baby, ‘Why are you Nevirapene, Nevirapene.'"
Zackie Achmat: Why do you think the baby is Nevirapine, why do you call him that?
Maria Hadebe: Because I fight for nevirapine and because nevirapine is working for my child.
Zackie Achmat: Did you vote?
Maria Hadebe: Yes.
Zackie Achmat: Who did you vote for?
Maria Hadebe: The ANC.
Zackie Achmat: Why did you vote for the ANC?
Maria Hadebe: Because now I can see there is no war. It's a nice country!