International human rights law establishes that every person, including every child, has the right to the highest attainable standard of health, the right to life, the right to seek, receive and impart information of all kinds, the right to nondiscrimination and equal protection of the law, and the right to be protected from violence. International human rights law also requires states to address persistent violations of human rights and take measures to prevent their occurrence. With respect to violations of bodily integrity, states have a duty to prosecute abuse, whether an agent of the state or a private citizen commits the violation.
These rights are enshrined in important international and regional treaties to which South Africa is a party and which South Africa has incorporated into its domestic law. These include the Convention on the Rights of the Child (CRC), the International Covenant on Civil and Political Rights (ICCPR), the U.N. Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), and the African Charter on the Rights and Welfare of the Child.228 South Africa is also a signatory to the International Covenant on Economic, Social and Cultural Rights (ICESCR), obliging it to refrain from actions that would defeat that treaty’s object and purpose.229
All individuals have the right to enjoy the highest attainable standard of health, a right guaranteed by the ICESCR,230 the CRC,231 and CEDAW,232 by the South African Constitution, 233 and by regional treaties.234 This right imposes an obligation on states to take steps necessary for the prevention, treatment and control of epidemic and other diseases, which include “the establishment of prevention and education programmes for behaviour-related health concerns such as sexually-transmitted diseases, in particular HIV/AIDS.”235 In meeting this obligation, states “should ensure that appropriate goods, services and information for the prevention and treatment of STDs, including HIV/AIDS, are available and accessible.”236
The right to the highest attainable standard of health outlined in the ICESCR is subject to “progressive realization,” under which states parties have a “specific and continuing obligation to move as expeditiously and effectively as possible towards the full realization of [the right].”237 States must guarantee certain core obligations as part of the right to health. These include ensuring nondiscriminatory access to health facilities, especially for vulnerable or marginalized groups; providing essential drugs; ensuring equitable distribution of all health facilities, goods and services; adopting and implementing a national public health strategy and plan of action with clear benchmarks and deadlines; ensuring reproductive, maternal and child care; taking measures to prevent, treat and control epidemic and endemic diseases; and providing education and access to information for important health problems.238 According to the ICESCR Committee, to justify the failure to meet at least minimum core obligations as based on a lack of available resources, a state party “must demonstrate that every effort has been made to use all resources that are at its disposition in an effort to satisfy, as a matter of priority, those minimum obligations.”239
Realization of the right to health requires that the state ensure equality of access to a system of health care and provide health services without discrimination. Accessibility, in turn, has four overlapping dimensions: nondiscrimination, physical accessibility, economic accessibility (affordability) and information accessibility.240
In establishing one-stop service centers to treat sexual violence survivors, South Africa has taken an important step toward ensuring physical accessibility of health services. It should also take measures to ensure access to adequate and efficient referral services, transportation facilities and translation assistance.
South Africa has adopted a number of laws and policies that aim to improve access to health care to all and that should facilitate economic access to PEP. In 1997, for example, the Health Department outlined its plan to restructure the health system to enhance its capacity to deliver affordable health care, including by improving the affordability of drugs.241 The Medical Schemes Amendment Act requires that medical schemes (health care plans) provide those services available at public health facilities and to which public hospital patients are entitled.242 As such, PEP services should be covered by medical schemes.243 The Patents Act permits the government to override patent protections in limited situations by issuing compulsory licenses to market competitors to produce and market medicines still under patent.244
The Medicines and Related Substances Control Amendment Act (Medicines Act), passed in 1997, identifies specific measures that the state may undertake to ensure the supply of more affordable medicines. The Act provides for the generic substitution of medicines no longer under patent, parallel importation of patented medicines and establishes a pricing committee to set up transparent pricing mechanisms.245 As described above, the Act’s implementation was delayed for years due to extended litigation and lobbying by domestic pharmaceutical manufacturers and opposition by the U.S. government.246 In April 2001, pharmaceutical manufacturers withdrew their legal challenge to the Act, providing an opportunity for the government to facilitate the access to cheaper medicines and otherwise mount a publicly funded program to make HIV/AIDS treatment available. The government should take advantage of the mechanisms established under these laws and policies to facilitate access to less expensive antiretroviral drugs used in PEP.
Everyone, including children, has the right to “seek, receive and impart information of all kinds.”247 Access to information also is essential to secure the right to the highest attainable standard of health.248
In pledging to provide PEP to sexual violence survivors, South Africa has taken an important step towards ensuring the right to health. But a commitment to PEP on the policy level remains compromised absent measures to ensure its availability and accessibility to all sexual violence survivors on a nondiscriminatory basis. Sexual violence survivors cannot exercise their right to PEP if they are not informed of this option and are barred by third parties or by lack of means to access it. The right to PEP is likewise impaired if the state fails to provide appropriate training for key PEP service delivery institutions and personnel. South Africa’s obligation to secure the right to health includes providing adequate information to sexual violence survivors to enable them to make a meaningful choice about PEP (including the risk of HIV infection post-assault and the benefits of PEP, where and how to obtain it) and training health care providers regarding its use.
All persons enjoy an inherent right to life, which is guaranteed in article 6 of the ICCPR. Noting that the right to life “should not be interpreted narrowly,”249 the Human Rights Committee, which monitors compliance with the ICCPR, has observed:
In the face of its dual epidemics of sexual violence and HIV/AIDS, South Africa’s obligations to protect the right to life extend to the provision of HIV post-exposure prophylaxis for survivors of sexual violence and provision of information on PEP services.
Article 24 of the ICCPR guarantees the right of the child to “such measures of protection as are required by his status as a minor.” The ICCPR also prohibits cruel, inhuman or degrading treatment.251 Under article 19 of the Convention on the Rights of the Child, children have the right to protection from “all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation including sexual abuse, while in the care of parent(s), legal guardian(s), or any other person who has the care of the child.”252 These protections apply to private acts of violence and harassment as well as acts committed by state agents.253
States must take all appropriate measures to protect children from sexual violence and abuse and to promote physical and psychological recovery and social integration of a child survivor of any form of neglect, exploitation, or abuse in a setting that “fosters the health, peer-respect, and dignity of the child.”254 These measures include providing medical treatment for child survivors of sexual violence, as well as effective mechanisms for identification, referral, investigation and follow-up of their cases.255
Protection from violence and its consequences is also an essential component in securing other human rights. Sexual violence puts individuals at risk of HIV/AIDS, thereby threatening the right to life. It also violates the right to bodily integrity and, by posing serious threats to physical and psychological health, infringes on the right to the highest attainable standard of health. Sexual violence in schools may deprive children of their right to an education on equal terms with their peers. Children who leave school as a consequence of sexual violence confront additional threats to their rights to life, bodily integrity and health.256
The obligation to take measures to protect children from violence and its consequences, as delineated in articles 19 and 39 of the Convention on the Rights of the Child, is one aspect of the “measures of protection . . . required by [one’s] status as a minor” to which children are entitled under article 24 of the ICCPR. This view is consistent with the Human Rights Committee’s general comment on the scope of article 24, which notes that “every possible economic and social measure should be taken . . . to prevent [children] from being subjected to acts of violence and cruel and inhuman treatment.”257 In keeping with these principles, the state’s obligation to take measures to protect extends to the obligation to provide PEP to survivors of sexual violence.
Sexual violence can be a form of gender discrimination, and South Africa is obligated to take all appropriate measures to eliminate violence against girls and against women more generally, and to ensure their access to health and social services without discrimination. The obligations enumerated by the CEDAW Committee extend beyond the justice system and encompass preventive and protective measures, including counseling and support services.258 This includes provision of medical and psychological assistance to girls who are survivors of violence. Also in accord with these principles is the provision of medical assistance to survivors of sexual violence consistent with the prevailing best practice on HIV post-exposure prophylaxis to decrease the likelihood of contracting the virus.
The South African Constitution guarantees the right to physical and psychological integrity, the right to life, the right to access to health care, and recognizes the inherent dignity of all human beings and the right to have that dignity respected and protected.259 The constitution prohibits unfair discrimination against anyone directly or indirectly on the basis of sex, gender or pregnancy.260 It grants specific recognition to the rights of children, who enjoy more broad-based rights protections than adults. Children’s rights include the right to basic health care and social services and the right to be protected from maltreatment, neglect, abuse or degradation.261 The constitution further provides that “[a] child's best interests are of paramount importance in every matter concerning the child.”262
The constitution provides that international law must be considered in the interpretation of the bill of rights and “any legislation.”263 It further provides that international agreements become legally enforceable when enacted into law by national legislation, or, in the case of a self-executing provision, on approval by Parliament.264
The South African Constitution provides that “[n]o one may be refused emergency medical treatment.”265 According to South Africa’s Constitutional Court, the purpose of this right is “to ensure that treatment be given in an emergency, and is not frustrated by reason of bureaucratic requirements or other formalities. A person who suffers a sudden catastrophe which calls for immediate medical attention . . . should not be refused ambulance or other emergency services which are available and should not be turned away from a hospital which is able to provide the necessary treatment. What the section requires is that remedial treatment that is necessary and available be given immediately to avert that harm.”266
Sexual violence is a “sudden catastrophe” that exposes its survivors to a lethal disease that can be averted through immediate medical treatment. The state’s obligation to provide emergency treatment to prevent HIV/AIDS requires that it provide PEP to survivors of sexual violence on an urgent basis. The court is specific that bureaucratic or other formalities should not delay the provision of such treatment.267
The right of access to nonemergency health care services is provided for in two places in the South African Constitution. The constitution provides that everyone has the right to access to health care services and must take reasonable legislative and other measures, subject to available resources, to achieve the progressive realization of this right.268 Children’s rights to basic health care are not similarly qualified.269 Children’s right to basic health care, read together with the right to be protected from maltreatment, neglect and abuse, imposes on the state a heightened duty to protect children from sexual violence and its consequences.
South Africa’s obligation under the right to health requires that it establish a coherent program directed toward the progressive realization of the right to health, which should clearly allocate responsibilities and tasks to different spheres of government and to ensure that appropriate financial and human resources are available to carry out these tasks.270 Health policies should articulate clear timeframes to ensure eventual access to everyone.271
To comply with its obligations with respect to the right to health, South Africa must articulate a comprehensive national program to provide PEP to all sexual violence survivors and must do so “with due regard to the urgency of the situations it is intended to redress.”272 To ensure effective implementation, the program must be afforded adequate budgetary support and incorporate monitoring and evaluation mechanisms, so as to ensure that the maximum number of people can receive lifesaving PEP services.273 This program must include instruction on administration of PEP to all key service providers, including police, teachers, health care providers, and social workers handling cases of sexual abuse and domestic violence, as well as directives to facilitate urgent access to PEP services. The program should also include an information campaign to advise sexual violence survivors of their right to these services and how to get access to them, as well as training for all key service providers.274
The South African Constitution imposes positive duties on the state “to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual. . . . In addressing these obligations in relation to dignity and the freedom and security of the person, few things can be more important to women than freedom from the threat of sexual violence.”275 The Constitutional Court has recognized that “[s]exual violence and the threat of sexual violence goes [sic] to the core of women’s subordination in society. It is the single greatest threat to the self-determination of South African women.”276 The state’s obligation to protect women and children from violence and its consequences should extend to its obligation to provide PEP to sexual violence survivors to protect them from HIV/AIDS.277
National law and policies provide an enabling legal environment for the protection of children against sexual violence.278 The Domestic Violence Act, which requires that police officers “render such assistance to the [domestic violence survivor] as may be required in the circumstances,” including assistance with obtaining medical treatment,279 imposes a duty on police officers to facilitate access to PEP.
A South African parliamentary committee has indicated that draft sexual offences legislation under consideration would be amended to include a clause making clear that rape survivors would be entitled to receive PEP services from designated government clinics. Implementing the government’s commitment to provide PEP to sexual violence survivors through national legislation is essential to secure the right to such treatment.
228 CRC, G.A. res. 44/25, annex, 44 U.S. GAOR Supp. (No. 49) at 167, U.N. Doc. A/44/49 (1989), entered into force September 2, 1990 and acceded to by South Africa on July16, 1995; ICCPR, 999 U.N.T.S. 171, entered into force March 23, 1976 and acceded to by South Africa on Marcy 10, 1999; CEDAW, G.A. Res. 34/180, U.N. Doc. A/34/46, entered into force September 3, 1981 and acceded to by South Africa on January 9, 1999; African Charter on the Rights and Welfare of the Child, OAU Doc. CAB/LEG/24.9/49 (1990), entered into force Nov. 29, 1999 and acceded to by South Africa on January 7, 2000; African [Banjul] Charter on Human and Peoples' Rights, adopted June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force Oct. 21, 1986 and acceded to by South Africa on July 9, 1996.
229See Vienna Convention on the Law of Treaties, art. 18, concluded May 23, 1969, 1155 U.N.T.S. 331, entered into force January 27, 1980.
230 ICESCR, art. 12.
231 CRC, art. 24.
232 CEDAW, art. 12.
233 Constitution of the Republic of South Africa, arts. 27, 28(c).
234 African Charter on the Rights and Welfare of the Child, art. 14; African Charter on Human and Peoples’ Rights, art. 16.
235 Committee on Economic, Social and Cultural Rights, “General Comment 14, The Right to the Highest Attainable Standard of Health,” November 8, 2000, para. 8. The Committee on Economic, Social and Cultural Rights is the U.N. body responsible for monitoring compliance with the ICESCR. See also Committee on the Rights of the Child, “General Comment No. 3: HIV/AIDS and the Rights of the Child,” March 17, 2003, paras. 15-29. The Committee on the Rights of the Child is the U.N. body responsible for monitoring compliance with the CRC.
236 Committee on the Rights of the Child, “General Comment no. 4: “Adolescent Health and Development in the Context of the Convention on the Rights of the Child,” July 1, 2003, para. 30; see alsoCommittee on the Rights of the Child, “General Comment No. 3: HIV/AIDS and the Rights of the Child,” March 17, 2003, ,paras. 20, 21.
237 Committee on Economic, Social and Cultural Rights. “General Comment no. 14. The Right to the Highest Attainable Standard of Health,” November 8, 2000, paras. 30, 31.
238 General Comment no. 14, paras. 43 and 44; see also ibid., para. 12.
239 Committee on Economic, Social and Cultural Rights, “General Comment no. 3. The Nature of States Parties Obligations (Art. 2)(1),” UN Doc. E/1991/23., para. 10.
240 Committee on Economic, Social and Cultural Rights. “General Comment no. 14. The Right to the Highest Attainable Standard of Health,” November 8, 2000, para. 12.
241 Department of Health. White Paper for the Transformation of the Health System in South Africa. Government Gazette No. 17910, April 16, 1997.
242 Medical Schemes Act No. 131 of 1998, section 29(p) (“No limitation shall apply to the reimbursement of any relevant health service obtained by a member from a public hospital where this service complies with the general scope and level as contemplated in paragraph (o) and may not be different from the entitlement in terms of a service available to a public hospital patient”). Medical schemes, the main type of private insurance, receive monthly premiums from households and employers. Health insurance is offered by life and short-term insurance companies and bought by households, some of which may also belong to medical schemes. Jane Doherty et al., “Health Care Financing and Expenditure,” South African Health Review 2002 (Durban, South Africa: Health Systems Trust, 2003).
243A 2002 survey covering an estimated 80 percent of all medical schemes found that 96 percent of beneficiaries surveyed had access to antiretroviral therapy in case of sexual violence and 94 percent had such access in case of occupational exposure. Andrew Stein, Heather McLeod, Zackie Achmat, The Cover Provided for HIV/AIDS Benefits in Medical Schemes in 2002, Centre for Actuarial Research and Treatment Action Campaign, July 2002, pp. 5, 23-24.
244 Compulsory licenses are licenses granted by a government that permit a competitor to override patents or other intellectual property protections to produce and market goods protected by patent or copyright. The Patents Act, Act No. 57 of 1978, permits the South African government to issue compulsory licenses in certain limited situations. See ibid., Sections 4 and 56(a).
245 Medicines and Related Substances Control Amendment Act, Act No. 90 of 1997, sections 15C, 22F, 22G.
246 See discussion in Section IV, above.
247 See ICCPR, art. 19, CRC, art. 13.
248 See Committee on the Rights of the Child, “General Comment no. 4. Adolescent health and development in the context of the Convention on the Rights of the Child, “ para. 12 and note 8; Committee on the Rights of the Child, “General Comment No. 3. HIV/AIDS and the rights of the Child, paras, 16 and 17; Committee on Economic, Social and Cultural Rights. “General Comment no. 14. The Right to the Highest Attainable Standard of Health,” November 8, 2000, para. 12(b).
249 Human Rights Committee, “General Comment 6” (16th sess., 1982), para. 1.
250 Ibid., para. 5.
251 CRC, art. 7.
252 CRC, arts. 3 and 19; see also African Charter on the Rights and Welfare of the Child, arts. 4,16.
253 CRC art. 19; see also See Rachel Hodgkin and Peter Newell, Implementation Handbook for the Convention on the Rights of the Child (New York: UNICEF, 1998), p. 246; CEDAW Committee, “General Recommendation No. 19: Violence Against Women.” 11th sess., U.N. Doc. CEDAW/C/1992/L.1/Add.15 (1992) (interpreting a similar provision of CEDAW to extend to “all kinds of violence” against women, including private violence); Gender and Development: A Declaration by Heads of State or Government of the Southern African Development Community,” para. H(ix), September 8, 1997 (pledge to “take urgent measures to prevent and deal with the increasing levels of violence against women and children”).
254 CRC., arts. 19, 24, 34, 39; African Charter on the Rights and Welfare of the Child, art. 16.
255 CRC art. 19(2); African Charter on the Rights and Welfare of the Child, art. 16(1).
256 See The World Bank, Education and HIV/AIDS: A Window of Hope, 2002, p. 4 (noting that education was a proven means of protection against HIV infection, and “among the most powerful tools for reducing girls’ vulnerability” to HIV/AIDS).
257 Human Rights Committee, “General Comment 17, Rights of the Child (Art. 24),” 35th sess. 1989, para. 3.
258 See Committee on the Elimination of All Forms of Violence Against Women, "Violence Against Women," General Recommendation no. 19 (eleventh session, 1992), U.N. Document CEDAW/C/1992/L.1/Add.15.
259 Constitution of the Republic of South Africa, Sections 10, 11, 12(2), 27(1).
260 Ibid, Section 9.
261 Ibid., Section 29(1)(c,d).
262 Ibid., Section 29(2).
263 Ibid., Sections 39(b)(1) and 233; see also S. v. Makwanyane and another 1995(3) SA391 (CC), paras. 34-35.
264 Constitution of the Republic of South Africa, Section 231(4).
265 Ibid., Section 27(3).
266 Soobramoney v. Department of Health, KwaZulu-Natal 1998 (1) SA 765 CC 774, para. 20.
267 The obligation to provide PEP on an urgent basis imposes a duty on police to facilitate access to prompt treatment and on hospitals to provide treatment on an urgent basis. See David McQuoid-Mason, Ames Dhai and Jack Moodley, “Rape Survivors and the Right to Emergency Medical Treatment in Order to Prevent HIV Infection,” South African Medical Journal, vol. 93, no. 1 (January 2003), pp. 41-44.
268 Constitution of the Republic of South Africa, Section 27 (1, 2).
269 See ibid., Section 28(1)(c).
270 See Government of the Republic of South Africa and others v. Grootboom and others, CCT 11/00 (2000).
271 See Minister of Health v. Treatment Access Campaign and Others, CCT 8/02 (2002).
272 Government of the Republic of South Africa and others v. Grootboom and others, CCT 11/00 (2000), para. 67; see also ibid., para. 44 (“[t]o be reasonable, measures [to realize the progressive realization of a right] cannot leave out of account the degree and extent of the denial of the right they endeavour to realise. Those whose needs are most urgent and whose ability to enjoy all rights therefore is most in peril, must not be ignored by the measures aimed at achieving realisation of the right.”).
273 See ibid.
274 See Minister of Health v. Treatment Access Campaign and Others, CCT 8/02 (2002), para. 123:
The magnitude of the HIV/AIDS challenge facing the country calls for a concerted, co-ordinated and co-operative national effort in which government in each of its three spheres and the panoply of resources and skills of civil society are marshalled, inspired and led. This can be achieved only if there is proper communication, especially by government. In order for it to be implemented optimally, a public health programme must be made known effectively to all concerned, down to the district nurse and patients. Indeed, for a public programme such as this to meet the constitutional requirement of reasonableness, its contents must be made known appropriately.
275 Carmichele v. Minister of Safety and Security, Case CCT 48/00., paras. 45, 62; see also ibid., para. 42.
276 Ibid., para. 62.
277 See ibid.; see alsoHelÚne Combrinck, “Positive Duties to Protect Women from Violence: Recent South African Developments,” Human Rights Quarterly, vol. 20 (1998), pp. 666-690;HelÚne Combrinck and Raygaanah Barday, “Beyond Carmichele: developing the right to freedom from violence,” GenderNews, vol. 6, no. 1, September 2002.
278 These include the Child Care Act, No. 84 of 1983 (as amended), Domestic Violence Act, No. 116 of 1998, Criminal Procedure Act, No. 51 of 1977, National Policy Guidelines for Sexual Offences.
279 Ibid., section 2; Domestic Violence National Instruction 7/1999, Section 9.