Treatment Access Campaign (TAC) awarded punitive costs in case against Minister of Health

The Minister of Health has been ordered by the Pretoria High Court to pay punitive costs in a case brought earlier this year by the TAC. She must pay the TAC’s costs on the scale as between attorney and client, as well as the cost of one counsel. This is an unprecedented judgement. The judgment is important because punitive costs are seldom granted; such awards indicate that the court is displeased by the conduct of a party – here the Minister. The Minister has therefore wasted money in defending an indefensible case. She must account for her conduct.

The case highlighted the Ministers delinquency in failing to inform the public about the true state of affairs of a document called ‘Annexure A’ which is referred to in the Operational Plan as the implementation timetable published on 19 November 2003.

We welcome the judgment because it demonstrates that the Minister as well as other organs of state have a duty to act in an open and transparent manner in compliance with the access to information rights in the Bill of Rights. The Minister cannot act in a manner that is inconsistent with the Constitution and simply ignore genuine requests for access to lifesaving information. This is why we welcome the punitive cost order against the Minister.

The judgment vindicates the TAC’s application to court. According to the judgment, the Minister had eleven opportunities to inform the TAC of the true state of affairs but failed to do so. For the TAC, it is not the money that is of primary concern here, but the delay in saving lives.