By John Matisonn and Staff Reporter
President Thabo Mbeki failed to return former president Nelson Mandela's calls for two months before Mandela finally went public to say he disagreed with the government's Aids policy, The Sunday Independent has learned.
Sources confirmed this week that Mandela gave this explanation when he addressed an ANC national executive committee (NEC) last month.
He was responding to ANC members who had attacked him the day before for contradicting the party's policy on Aids drugs in public.
Asked to comment on Saturday on Mandela's disclosure, Bheki Khumalo, Mbeki's spokesperson, said: "We don't want to be part of what we consider malicious gossip."
Mandela's comments came after he was told that on the first day of the three-day meeting several NEC members had criticised him in strong terms in his absence for breaking ranks with the ANC and calling for the roll-out of anti-retroviral drugs to prevent mother-to-child transmission of HIV/Aids.
Mandela told the NEC he was "shocked" at the comments, though he did not refer to his critics by name.
None of them defended their previous comments, the sources said, and chose to remain silent.
Mandela was on the offensive, as if he felt he had the moral high ground, the sources said.
Mandela repeated his belief this week that the government should make anti-retrovirals available in the public health sector, something the ANC specifically opposed in a statement after its NEC meeting.
This week the government suffered another humiliating legal setback over Aids, this time in the Constitutional Court.
Constitutional experts said that the court ruling on Nevirapine was a clear warning to the government that it was not above the courts and the constitution.
They said the government's defensive and hostile approach to the demand for universal access to anti-retrovirals had virtually assured Aids activists of their victory in the Constitutional Court.
The government's standing had been harmed by the defiance last week of Manto Tshabalala-Msimang, the health minister.
She said after an order of the Pretoria High Court that the government would not comply with it.
Arthur Chaskalson, chief justice and president of the Constitutional Court, left little room for executive interpretation of this week's judgment, saying: "This obliges the government to immediately comply until this court gives its judgment."
Minister Tshabalala-Msimang's defiance, said Professor Shadrack Gutto of University of the Witwatersrand Centre for Applied Legal Studies, had caused "bad blood" between the executive and the judiciary.
The fact that the judges had interrupted their recess to rule on the case showed just how seriously the matter was taken.
Said one human rights lawyer: "This is very bad news for the government's strategy. They were so desperate not to implement the court order, but now they have finally come unstuck."
Lawyers said the government's insistence that the courts had no say over policy matters was incorrect.
They pointed out that the relations between the two arms of government have been strained in the past by judicial rulings that have not been to the government's liking.
The most prominent of these was the so-called Grootboom case of 2000 in which the government - against its wishes - was forced to provide shelter for a group of squatters at Wallacedene in Western Cape.
That case, said Judge Zac Yacoob, "shows the desperation of hundreds of thousands of people living in deplorable conditions throughout the country. The constitution obliges the state to act positively to ameliorate these conditions.
"I stress, however, that despite all these qualifications there are rights, and the constitution obliges them. This is an obligation the courts can, and in appropriate circumstances must, enforce."
Instead of persuading the court that it had a plan to expand the reach of a drug that has proven to be successful, the government and its lawyers came across as defensive.
"It was clear that no programme has been developed and no certainty of policy exists. They were not able to convince the court that they were serious," Gutto said.
"Instead they came across as defensive and not proactive."
Gutto expected the court to make a major constitutional pronouncement on the division of responsibilities between the executive and the judiciary.
Geoff Budlender of the Centre for Legal Resources constitutional unit said the judges had clearly relied on the Grootboom ruling. In both cases the government was ordered to take "reasonable measures" to ensure that the rights contained in the constitution were enforced.
Tshabalala-Msimang - in marked contrast to her reaction to the high court ruling - hastened to accept the judgment this week. She said: "Government respects and accepts this judgment."
Mbeki strongly defended the government's Aids position, despite the court's ruling.
He came out guns blazing in his weekly online column in ANC Today, in an apparent attack on the Treatment Action Campaign.
"We are told we must accept the harm these persons cause, and their insult of an entire people, as the very essence of free democratic expression. Despite the propaganda offensive, the reality is that the predominant feature of illnesses that cause disease and death among the black people in our country is poverty."