Last year’s landmark South Gauteng High Court judgment penned by judge Stuart Wilson regarding anti-immigrant health-care blockades at the Rosettenville and Yeoville clinics in Joburg goes far beyond a condemnation of xenophobic vigilantism. It is a constitutional reminder that the right of access to health-care services is far broader than the provision of medical facilities, medicines, beds or staff.
Section 27(1)(a) of the Constitution of the Republic of South Africa, 1996 guarantees everyone the right to have access to health-care services. Section 27(2) goes further by obliging the state to take reasonable legislative and other measures, within its available resources, to progressively realise that right.
These obligations do not exist in a vacuum. They must be interpreted together with those under section 7(2) of the constitution, which holds that the state must respect, protect, promote and fulfil the rights set out in the Bill of Rights, including the right of access to health-care services. This is the constitutional architecture that frames the high court judgment. It is this architecture that the state respondents seemingly and astonishingly endeavoured to ignore.
From health-care facilities to battlegrounds
For months, vigilante groups placed themselves at the gates of health-care facilities, mainly in parts of Gauteng and KwaZulu-Natal, demanding South African IDs and denying access to those who could not produce one. Foreign nationals (documented and undocumented), asylum seekers, refugees and South African citizens without IDs were denied access to health-care services.
These facilities were not understaffed. They were not closed. They were not short of medication. Instead, the barrier was physical, unlawful and exclusionary, and yet the state did nothing. Some facility managers told Section27 they did not know how to respond to the unlawful act and had been instructed by their superiors not to engage but to focus on providing services to those inside the facility.
When the matter reached the court, national and provincial health authorities argued that what happened outside the facility gates was not their concern. The South African Police Service argued that they could only intervene on formal complaints. The City of Joburg, directly responsible for the clinics, filed no affidavits at all. This is precisely the kind of constitutional evasion that section 7(2) was crafted to prevent.
This judgment is a powerful repudiation of the thought that the state’s health-care obligations are limited to providing facilities, staff and medicines
Wilson’s judgment cuts through this fog of evasion. He makes clear that the right of access to health-care services includes the right to reach and use those services safely, and without any unlawful interference or discrimination. A clinic with full shelves and trained nurses has no significance if the people it was built to serve cannot enter its gates. Access to health-care services is not a right to infrastructure; it is a right to care, which cannot be accessed through a blockade.
The Joburg high court judgment reaffirms what judge Leona Theron taught us a few years ago in the Sonke Gender Justice case: the state’s obligation under section 7(2) of the constitution requires it to take positive steps to protect individuals’ rights from being infringed by others. This obligation, when read with section 27 of the constitution, obliges the state to act positively to identify and eliminate the barriers hindering access to health-care services. When the state allows barriers to persist without acting, it violates these obligations.
Wilson applies this principle with clarity. He finds that the national and provincial health departments have a direct legal interest in what happens inside and outside the clinics, because eliminating barriers to access falls within their constitutional and statutory obligations. He finds that police cannot limit their role merely to passively receiving complaints. Instead, section 205(3) of the constitution obliges them to prevent criminal activities, maintain public order and protect all inhabitants. He also finds that the City of Joburg cannot remain silent while its clinics are effectively captured by private individuals.
What the judgment boils down to
This judgment is a powerful repudiation of the thought that the state’s health-care obligations are limited to providing facilities, staff and medicines. It rejects the very notion that the state can outsource constitutional obligations to communities or public vigilance. It further affirms that the state must act positively, reasonably, and effectively to ensure that health-care services are accessible.
The judgment’s implications go far beyond the two clinics at issue. Across South Africa, people face barriers to accessing health-care services that are less visible but equally harmful daily, including long queues, discriminatory treatment, inaccessible buildings, language barriers, administrative gatekeeping and the quiet hostility that migrants and poor people face at public facilities. These are not inconveniences. They represent a failure to uphold the constitution’s promise of ensuring everyone’s access to health-care services.
In a country where inequality, fear and exclusion continue to dictate who receives care and who is turned away, Wilson’s ruling is a reminder that the constitution demands more. It demands that every barrier to health-care access, be it physical, administrative, or social, be dismantled. It demands that health-care services be accessible to all who need them. It also demands that the state must act, not only because it is asked to, but because it has obligations to.
Mudau, Dyantyi and Mafuma are with Section27. In the court case discussed in this article, Section27 represented the Treatment Action Campaign, Médecins Sans Frontiers and Kopanang Africa Against Xenophobia.
This piece was published by Spotlight — health journalism in the public interest. Sign up for the Spotlight newsletter.
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