The Story of the TAC Case: The Potential and Limits of Socio-Economic Rights Litigation in South Africa

HUMAN RIGHTS ADVOCACY STORIES, Deena R. Hurwitz, Margaret L. Satterthwaite, eds., 2009

30 Pages Posted: 26 Feb 2009 Last revised: 7 May 2009

Jonathan Michael Berger

School of Law, University of the Witwatersrand, Johannesburg

Amy Kapczynski

Yale University - Law School

Date Written: January 1, 2009

Abstract

This paper tells the story of the South African constitutional case of Minister of Health v. Treatment Action Campaign. The case is a celebrated example of successful socio-economic rights litigation because it resulted in a direct order to the government to implement a new health care program - specifically, comprehensive program to prevent mother-to-child-transmission of HIV.

Commentators have noted the unusual strength of the court's order in this case, often attributing it to the fact that TAC was an "easy case." We show that the case was only easy because the Treatment Action Campaign spent years laying the groundwork for its legal success. Moreover, the court's order has largely depended on the Treatment Action Campaign for its implementation, such that its true promise still waits to be redeemed. The story of the TAC case thus exemplifies the importance of social movement organization and mobilization to constitutional litigation and constitutional meaning.

Keywords: human rights, right to health, socio-economic rights, social movements, law, South Africa, HIV/AIDS

Suggested Citation

Berger, Jonathan Michael and Kapczynski, Amy, The Story of the TAC Case: The Potential and Limits of Socio-Economic Rights Litigation in South Africa (January 1, 2009). HUMAN RIGHTS ADVOCACY STORIES, Deena R. Hurwitz, Margaret L. Satterthwaite, eds., 2009. Available at SSRN: https://ssrn.com/abstract=1323522 or http://dx.doi.org/10.2139/ssrn.1323522

Jonathan Michael Berger

School of Law, University of the Witwatersrand, Johannesburg ( email )

Private Bag X3, WITS
Johannesburg, 2050
South Africa

Amy Kapczynski (Contact Author)

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

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