In a moment of refreshing honesty and forthrightness, health minister Aaron Motsoaledi recently told Parliament that some of the blame for SA’s shocking Aids deaths was the responsibility of the government of former president Thabo Mbeki.

Motsoaledi’s comments really constitute little more than an acknowledgement of what we already know: Mbeki’s government had to be dragged kicking and screaming into a comprehensive Aids plan, which was implemented long after smaller countries with comparatively tiny budgets had already implemented theirs.

The result, if you extrapolate forwards, may or may not be the 365,000 premature deaths that Harvard University researchers estimate this delay probably caused. Yet it’s obvious that some culpability is due to, not only Mbeki, but his entire cabinet and perhaps also the ANC’s national executive committee which failed to publicly dissociate itself from Mbeki’s denialism.

Well, 10 out of 10 for honesty Mr Minister, but did Motsoaledi unwittingly open the door for civil claims to be brought by the victims of Mbeki’s policy?

The issue may or may not be hypothetical, but it is not without significance. About 5.7 million South Africans are living with HIV/Aids, and about 18% of the adult population is infected, according to Frans Cronje, the deputy CEO of the South African Institute of Race Relations.

In a recent article in the newsletter SAIRR Today, he notes that half-a-million new infections were recorded in 2009. More than 300,000 people died of Aids-related illnesses in 2008 including 47,000 children under the age of 14. In total, to July 2009, 2.9 million South Africans had died from HIV/Aids-related illnesses.

Even if a small number of civil cases were brought against government for the loss of breadwinner support, the amount involved could be astronomical. The legal situation is a bit complex – when is it not? – but legal experts don’t dismiss the possibility of civil claims being brought, even if they don’t necessarily consider such actions to be progressive or helpful.

Jonathan Berger of the Aids Law Project says the legal difficulty in bringing a civil claim would be the need to demonstrate causation – a causal connection between the actions of the defendant and the harm which ultimately resulted in a particular situation.

Even if South Africa had had a good Aids policy, it would not have reached everyone immediately, he points out. Any applicant would also have to demonstrate that they have a legal and not simply a moral claim. Mbeki obviously did not intend to kill anyone and obviously genuinely believed at the time that anti-retrovirals (ARVs) were toxic. He was not motivated by malice against those suffering from Aids. Yet, legally speaking, he could still be classified as having sufficient legal intention.

And now that a representative of government has acknowledged that government, or at least a part of it, was at fault, it certainly makes a big difference at the evidentiary level.

Berger says that although a civil claim is certainly “not impossible”, it would be necessary to demonstrate a particular set of facts: for example, a rape victim would have to demonstrate that, but for the government’s failure to roll out ARVs, she would not have contracted the disease.

And yet, this could be less difficult that it might seem. In his presentation to Parliament, Motsoaledi actually used the example from a study which revealed that in Mpumalanga, where former health MEC Sibongile Manana had fired Greater Nelspruit hospital superintendent Thys von Mollendorff for allowing an NGO to distribute ARVs to rape victims, there had been a steady increase in the number of HIV-positive babies dying. Not delivering the ARVs, for whatever reason (budgetary issues, genuine beliefs, etc.), is one thing; preventing and actively persecuting people who do so is another.

Legally this is tricky though. The provision of ARVs to prevent mother-to-child transmission of HIV does not eliminate the risk of transmission, so it may be difficult to prove causality in respect of an individual baby’s death.

Berger also pointed out that class action lawsuits are now possible in SA, and many of the causation problems that might complicate an individual damages claim would be obviated if a class of applicants were to club together.

In this sense, the application might be comparable to the class action suit being brought in the US by the Khulumani Support Group intended to hold companies accountable for doing business in South Africa during apartheid. This is a case that the current government now actually supports, lending some conceivable credence to a class action being brought against it. What is good for the goose is surely good for the gander.

Yet the political optics of the two situations are very different. Although Berger says that a civil action is possible, the question of whether it would be desirable is much trickier, as applicants would be effectively reducing the resources available from a government whose policy has now changed.

For Aids activist groups it would mean diverting legal and financial resources to fighting these cases and away from cases that might have broader or more preventative impact.

“I’m not saying the issue of accountability is not important. I am in fact 100% for a commission to hold people to account. But there are some issues that the country may still have to deal with.”

For Aids activists and groups like the Aids Law Project, the point is to change policy to reduce the number of Aids infections and save the lives of those living with HIV, rather than seek cash compensation for the victims.

There appears to be more support among Aids activist groups for something like an Aids “truth commission”, although many acknowledge that this seems politically unlikely since accountability might stretch pretty far.

The notion of a kind of Aids truth commission, as opposed to monetary compensation, might be laudable, but victims themselves may not take the same view. What is the point of having access to legal redress, if you are not encouraged and supported to use it?

The question is really this: if Mbeki himself and members of his cabinet thought it was possible the government (or they themselves) could be sued personally for damages by hundreds of thousands of people, would they not have taken the issue more seriously?

You bet they would have.

By Tim Cohen

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