FUR 2601
Date: 01 March 2012
Subject: Fundamental Rights
Subject Code: FUR 2601
NOTE: Assignment answers based on fact pattern 1 of FUR201/101/3/2012 page 21.
RHS Column for Remarks/ Suggestions:
Question: 1 (a):
HIV/AIDS is killing more and more South Africans daily and the mere possibility of a fourth line anti-retroviral treatment which has undergone the correct testing and systems should be made known to the public. Due to the new Medicines Control Amendment Act s5 which permits the Minister of Health to supress findings which she deems counter to current state policies by issuing a restraint on Professors Spies and Maseko, their treatment can now not be published. As counsel for Professors Maseko and Spies, they have standing to bring this constitutional challenge to the new Medicines Control Amendment Act s5.
The challenge in question is one which entails real, earnest and vital controversy between litigants and nothing about the treatment is hypothetical. A favourable court decision for Professors Maseko and Spies will remedy the interference as it will be a development in law and will assist towards further decisions of this nature.
As in the case of Ferreira v Levin NO, where Chaskalson P held that the allegation need merely be that, objectively speaking, a right in the Bill of Rights has been infringed or threatened, this case, the right of freedom of expression in being violated. The right which is infringed upon is not emotional, but objective.
By not being allowed to suppress their findings, Professors Maseko and Spies’ personal rights as per the Bill of Rights and their interests have been infringed upon and therefore do have standing. Taking this into consideration, Professors Maseko and Spies are entitled to apply for relief, including declaration of rights. They are able to demonstrate that there is sufficient interest, besides their own, in having their treatment published by just taking into account the statistics of deaths caused by
Subject: Fundamental Rights
Subject Code: FUR 2601
NOTE: Assignment answers based on fact pattern 1 of FUR201/101/3/2012 page 21.
RHS Column for Remarks/ Suggestions:
Question: 1 (a):
HIV/AIDS is killing more and more South Africans daily and the mere possibility of a fourth line anti-retroviral treatment which has undergone the correct testing and systems should be made known to the public. Due to the new Medicines Control Amendment Act s5 which permits the Minister of Health to supress findings which she deems counter to current state policies by issuing a restraint on Professors Spies and Maseko, their treatment can now not be published. As counsel for Professors Maseko and Spies, they have standing to bring this constitutional challenge to the new Medicines Control Amendment Act s5.
The challenge in question is one which entails real, earnest and vital controversy between litigants and nothing about the treatment is hypothetical. A favourable court decision for Professors Maseko and Spies will remedy the interference as it will be a development in law and will assist towards further decisions of this nature.
As in the case of Ferreira v Levin NO, where Chaskalson P held that the allegation need merely be that, objectively speaking, a right in the Bill of Rights has been infringed or threatened, this case, the right of freedom of expression in being violated. The right which is infringed upon is not emotional, but objective.
By not being allowed to suppress their findings, Professors Maseko and Spies’ personal rights as per the Bill of Rights and their interests have been infringed upon and therefore do have standing. Taking this into consideration, Professors Maseko and Spies are entitled to apply for relief, including declaration of rights. They are able to demonstrate that there is sufficient interest, besides their own, in having their treatment published by just taking into account the statistics of deaths caused by