KHOPOTSO: Sheer relief washed over Dr Malcolm Naude last Wednesday after his and the state’€™s counsel presented their closing arguments in the case.

Dr MALCOLM NAUDE: It’€™s been a very long time. I’€™m very pleased that my bit’€™s now basically done. I’€™ve had my day in court, so to speak, where I could state my case.

KHOPOTSO: Naude has been seeking justice for seven long years. And it’€™s been elusive to come about ‘€“ so much so that he’€™s thought of giving up on numerous occasions.  

Dr MALCOLM NAUDE: I’€™ve thought of it quite a few times (he laughs). It’€™s felt like the right thing to do. One does get tired when dealing with the Department of Health. They are a very slow organisation and my experience of theirs is that they are not in touch with the people that they are there to serve.

KHOPOTSO: Judgement in the case was reserved. Naude wants the Labour Court in Braamfontein, Johannesburg, to rule that his dismissal from Nelspruit’€™s Rob Ferreira Hospital in 2001 was unfair discrimination. This, he states in court papers, stemmed from him acting according to his conscience and medical best practice by prescribing antiretroviral treatment for rape survivors at a time when government refused to make such treatment available. Representing him in the matter is the AIDS Law Project. The project’€™s director, Mark Heywood, provides some history around the case.  

MARK HEYWOOD: Well, unfortunately, this is a case that kind of goes back to the very dark days of conflict over whether antiretroviral medicines should be used, and particularly whether antiretroviral medicines should be used to reduce the risk of a rape survivor being infected with HIV. Dr Malcolm Naude was a community service doctor at Rob Ferreira Hospital in Nelspruit and as a community service doctor he provided assistance to a clinic at the hospital, and to an NGO at the hospital, that was assisting survivors of rape, including providing them with antiretroviral medicines. That became a source of conflict with the MEC for Health. The NGO was ordered to vacate its premises at Rob Ferreira Hospital and in a legal battle that followed Dr Naude provided a sworn affidavit supporting the Greater Nelspruit Rape Intervention Project.              

KHOPOTSO: When Naude signed the affidavit, he had applied for a position as a junior medical officer at the hospital. He says his application was approved, albeit verbally. In court papers, he alleges that the Mpumalanga Health Department withdrew the job offer  after he had signed the affidavit in support of GRIP. This, he says, was the provincial Health Department’€™s reaction to his signing the affidavit, as the then Health MEC, Sibongile Manana was vehemently opposed to GRIP’€™s activities, which provided ARVs to survivors of rape, including children.

Dr MALCOLM NAUDE: To think that a person can say to a child who has been raped violently, ‘€œI’€™m going to withhold life-saving medication from you’€ is shocking. It’€™s absolutely shocking.

KHOPOTSO: Manana has since become a Member of Parliament. For Naude, her actions denying rape survivors medication that could reduce their being infected with HIV should go down as part of South Africa’€™s sad history post-democracy.    

Dr MALCOLM NAUDE: This case has documented her wrongs against the people of Mpumalanga, the poorest of the poor, the most destitute, the people most at risk for abuse. We’€™ve recorded, in my opinion, Manana’€™s crimes against humanity. These things, unfortunately, cannot be remedied by this court. But, at least, we’€™ve got a record of them now ‘€“ of how she denied people access to life-saving medication. It is very sad to see that people who have basically abused human rights on a gross level such as this are being rewarded. It would be nice to see some kind of retribution, I’€™m not sure how. But just a recording of their crimes, in my opinion, is one step towards people way down in history looking back and seeing that human life at one stage, even despite our new Constitution, is treated cheaply ‘€“ especially if you’€™re poor, if you don’€™t have access. If you’€™re rich and you’€™ve got a lot of support from your cronies, then things are going to go well.  

KHOPOTSO: The long walk is almost over and naturally, Naude is hoping that the court will rule in his favour.

Dr MALCOLM NAUDE: The change I hope to effect is that I want to make it easier for doctors and nurses to do what they feel is right for their patients’€¦ So, hopefully a judgement in my favour against the Department of Health would create space for that kind of climate. At this point in time I don’€™t think that climate exists. Doctors and nurses who stand up against government policy seem to be punished, persecuted, threatened.

KHOPOTSO: At the same time, he’€™s aware that the judgement might go against him.

Dr MALCOLM NAUDE: I think the important thing is for me to have stood up and done the right thing. The right thing was to follow my conscience and fight for my patients to give them the very best medical care that I could supply with the resources that we had. Even if I do have a judgement that does not rule in my favour, I think the very fact that I stood up to the Department of Health stemmed the tide a little bit. It opposed just the blatant rundown of people and human rights. I can live with myself.

KHOPOTSO: It’€™s not yet known as to when judgement on the case will be passed.