4. Both Accused had the legal duty to protect health and prevent deaths. a.) Our Bill of Rights mandates the state to "respect, protect, promote and fulfil" all rights including the rights to health, life and dignity. b.) The state is obliged to create an enabling framework by putting in place laws and regulations so that individuals will be able to realise their rights free from interference. c.) The state may be obliged to provide "positive assistance, or a benefit or a service creating the conditions in which the rights can be realised by the individual". This extends to the direct provision of basic resources or devices where a failure to do so would result in a denial of the realisation of rights. d.) At minimum, the state is required to take reasonable steps towards creating the legal framework necessary for accessing affordable treatments for HIV/AIDS. The right of access to health care services, as entrenched in section 27 of the Constitution, therefore places a positive obligation upon the state to take all reasonable measures to ensure that anti-retrovirals are made affordable. e.) This interpretation of section 27 is strengthened by the recently issued document entitled "Revised Guideline 6: Access to prevention, treatment, care and support", which updates the International Guidelines on HIV/AIDS and Human Rights, jointly issued by the Office of the United Nations High Commission for Human Rights (OHCHR) and the Joint United Nations Programme on HIV/AIDS (UNAIDS). Guideline 6 has been revised to give effect to development on access to HIV/AIDS-related prevention, treatment, care and support, as well as in recognition of increased commitments regarding human rights related to HIV/AIDS, including improved access to health care services. The government's International Obligations in this regard is clear: The Commission on Human Rights has confirmed that access to AIDS medication is a key component of the right to the highest attainable standard of health, enshrined in the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights and the Convention on the Rights of the Child. The Committee on the Economic, Social and Cultural Rights made it clear that the right to health included inter alia access to treatment. f.) Adding to these specific international human rights instruments, all Member States of the United Nations adopted a Declaration of Commitment on HIV/AIDS in June 2001 which pledged to scale up the response to HIV/AIDS within a human rights framework. In November 2001 in Doha, the Ministerial Conference of the World Trade Organisation declared that the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) should be interpreted to support public health and allow for patents to be overridden if required to respond to emergencies such as the AIDS epidemic. g.) In response to these developments, in July 2002, The OHCHR and UNAIDS convened a group of experts to update the International Guidelines of HIV/AIDS and Human Rights. The resulting revised Guideline 6 on "Access to prevention, treatment, care and support" will assist States to design policy and practice to ensure respect for human rights. Human rights are more than principles to guide the national and global response to AIDS: they are among the most powerful tools to ensure its success." 5. Both Accused had an ethical and common law duty to protect people and promote the public interest. a.) Both Accused had knowledge of the legal and other powers available to them to increase access to anti-retrovirals but did not act positively where there was a legal duty to do so. b.) The Minister of Health and the Minister of Trade and Industry have been aware of the different patents existing on HIV/AIDS medicines since the end of 1999, if not earlier. Both Accused were further aware of the remedies available to them in terms of the Patents Act and other legislation to facilitate access. c.) There have been repeated requests that the Minister of Trade and Industry issue compulsory licences for anti-retroviral treatment (e.g. Memorandum from TAC to Department of Trade and Industry dated 14 February 2001 and Meeting between Department of Trade and Industry and TAC on 23 February 2001). These requests came amidst independent statements by generic pharmaceutical companies on the availability of generic anti-retroviral and other HIV medications. d.) The Minister of Trade and Industry has been aware of the existence of generic anti-retroviral medication and has repeatedly been requested to ask pharmaceutical companies to give voluntary licences for the manufacture of generics in terms of section 78 of the Patents Act (e.g. letter by TAC to Department of Trade and Industry dated 23 February 2001). e.) The Minister of Trade and Industry has been aware of the capacity existing within South Africa for the manufacture of generic anti-retroviral and other medication (e.g. letter by Department of Trade and Industry dated 25 September 2002). f.) The Minister of Trade and Industry has been aware of and understands the regulatory options at his disposal to ensure the reduction in the price of essential medicines (e.g. Meeting between Department of Trade and Industry and TAC in 2001; and document presented by AIDS Law Project on 22 November 2002). g.) The Minister of Health and the Minister of Trade and Industry have acknowledged the importance of the Medicines and Related Substances Amendment Act, in particular section 15C on parallel importation to ensure that the prices of medicines are reduced (e.g. Meeting between Department of Trade and Industry and TAC on 23 February 2001). h.) In a meeting with Minister Tshabalala-Msimang, as the new Minister of Health, on 29 September 1999, it was clear that the Minister of Health was aware of the possibility to issue compulsory licences or use parallel importation as mechanisms to increase access to medication, including medication to treat people living with HIV/AIDS. Instead she declined to use these provisions pending the resolution of the court case by the Pharmaceutical Manufacturers' Association against the South African government's Medicines and related Substances Control Amendment Act. At this meeting the Treatment Action Campaign also formally raised the concept of a comprehensive treatment and prevention plan as a viable option to provide affordable treatment and to train health care workers. 6. Accused did not reasonably make use of these powers, causing more harm than benefit in the process. a.) The Minister of Health and the Minister of Trade and Industry have repeatedly delayed the implementation of the Medicines and Related Substances and Control Amendment Act and its Regulations. b.) The Minister of Health and the Minister of Trade and Industry are aware of the measures implemented in other countries like Brazil to increase access to essential medicines, including anti-retrovirals, but has denied offers by such countries to transfer technology and provide other assistance. c.) Accused directed their will towards ensuring government policy is the non provision of anti-retrovirals. Accused knew and foresaw that this would cause the deaths of many people but remained undeterred by this probability. d.) After a consultative process towards the government's Strategic Plan on STDs and HIV/AIDS 2000 - 2005, where various organisations endorsed the position that treatment and management of HIV/AIDS be prioritised as part of a holistic strategy, treatment was however not included as part of the government's Strategic Plan. (The recommendations by the HIV and Human Rights Consultation which was issued in November 1999, further recommended the publication of national standard guidelines on the clinical management of HIV/AIDS; the auditing of health districts for drug availability; the use of compulsory licensing and parallel import mechanisms to reduce the costs of drugs; and the investigation of bulk-buying for the SADC region to create economies of scale for the generic manufacturing of all drugs including cost-effective antiretroviral therapies.) e.) The Minister of Health has continued to deliberately exclude anti-retroviral medication from the Department of Health's "Enhanced response to HIV/AIDS and TB in the Public Sector" budget policy document (compare the July 2001 and September 2001 versions of the document). f.) The Minister of Health has repeatedly omitted to implement measures aimed at increasing access to anti-retroviral medication. The Minister of Health ignored the recommendations of the National Health Summit which was convened by the Department of Health in 2001, and which recommended the implementation of pilot sites where anti-retrovirals would be provided. g.) The Minister of Health has suppressed a report from a conference of scientists convened by the Department of Health and the Health Systems Trust on 13-14 August 2002. This report recommended the establishment of anti-retroviral pilot treatment programmes in the public sector. h.) The Minister of Health further ignored the suggestions raised by prominent scientists, medical professionals and organisations that promoted the implementation of pilot antiretroviral sites, including the recommendations in the Bredell Consensus Statement of 2001. i.) In the latest obstruction, the Minister of Health ignored the attempts to reach a negotiated NEDLAC Framework Agreement for a National Prevention and Treatment Plan, firstly holding back all sections of the original draft that refer to the use of anti-retroviral medicines and then denying the existence of the NEDLAC process. j.) The Minister of Health has further deliberately ignored wide-scale civil society attempts to engage her amicably on the issue of treatment provision for people living with HIV/AIDS. These are some of the facts, many more can be added. The Minister of Health, Manto Tshabalala-Msimang, and the Minister of Trade and Industry, Alec Erwin, have unlawfully and negligently caused the death of men, women and children. The majority of people who die without access to medicine are poor and black. Both accused Ministers and all members of parliament have access to private medical insurance and to anti-retroviral therapy should they need it. Not only have they been complicit and responsible for the deaths of people living with HIV/AIDS, they also breached their constitutional duty to respect, protect, promote and fulfil the right to life, dignity, equality and health care access of these people. Both accused Ministers have disregarded their legal duty of care to all people living with HIV/AIDS in South Africa. They must immediately be arrested and charged with culpable homicide.