can rights cure? - PULP - University of Pretoria

Transcription

CAN RIGHTS CURE?
The impact of human rights litigation
on South Africa’s health system
Marius Pieterse
Professor of Law, University of the Witwatersrand
2014
Can rights cure? The impact of human rights litigation on South
Africa’s health system
Published by:
Pretoria University Law Press (PULP)
The Pretoria University Law Press (PULP) is a publisher at the Faculty of Law,
University of Pretoria, South Africa. PULP endeavours to publish and make
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Cover:
Yolanda Booyzen, Centre for Human Rights
ISBN: 978-1-920538-27-9
© 2014
TABLE OF CONTENTS
1
Rights, health, courts and transformation
1.1 Introduction
1.2 The state of the South African health system
1.3 Content and dimensions of the right to health
1.3.1
1.3.2
International law
South African constitutional law
Health-related freedoms
The right to equality
Rights to non-medicinal determinants of health
Rights to health care services
1.4 Justiciability of the right to health
1.5 Conclusion: Aims and objectives of this book
2
24
31
Rights through legislation/legislation through rights:
Health law and policy in the Constitutional era
35
2.1 Introduction
2.2 Health care legislation in post-democracy South
Africa and its impact on access to care
2.2.1
2.2.2
2.2.3
2.2.4
The Choice on Termination of Pregnancy
Act 92 of 1996
The National Health Act 61 of 2003
The Medical Schemes Act 131 of 1998
Overview: Transformation through health legislation
and policy?
2.3 Assessing legislative and executive compliance
with constitutional health rights: The
Constitutional Court's approach
2.4 Conclusion
3
1
1
5
10
10
16
Health rights litigation, individual entitlements and
bureaucratic impact
3.1 Introduction
3.2 The health rights judgments and their aftermaths
3.2.1
3.2.2
3.2.3
3.2.4
3.2.5
3.2.6
3.2.7
Van Biljon v Minister of Correctional Services
Soobramoney v Minister of Health
(KwaZulu-Natal)
Minister of Health v Treatment Action
Campaign
Minister of Health v New Clicks South Africa
N v Government of the Republic of South Africa
Law Society of South Africa v Minister of
Transport
Lee v Minister of Correctional Services
3.3 The impact of the health rights judgments on
individual and collective struggles for access to
health care services
3.4 The impact of rights-vindication on health
system reform
3.5 Conclusion
iii
35
38
38
42
47
49
51
56
59
59
62
62
63
65
70
73
75
77
79
84
89
4
Rights and resources: The limits of justiciability?
4.1 Introduction
4.2 Rights discourse, resource allocation and the
unmasking of tragic choices
4.3 Rights as directives for resource allocation and
rationing
4.3.1
4.3.2
Possible normative directives embodied by
health-related rights in the South African
Constitution
Institutional obstacles to providing normative
resource-related directives through the courts
4.4 Assessing the impact of South African
human rights jurisprudence on health budgeting
and financing
4.5 Rights and contemporary health financing
policy debates
4.6 Conclusion
5
Rights, horizontality and regulation: facing the
public/private divide
5.1 Introduction
5.2 Rights as impetus for private health sector
regulation
5.3 Rights as parameters for private health sector
regulation
5.3.1
5.3.2
Health care practitioners' freedom of occupational
choice
Patients’ right of access to care
5.4 Beyond regulation: Towards enforcing
human rights obligations in the private health
sector
5.5 Conclusion
6
Rights as restraints?: Balancing individual liberties
and public health
6.1 Introduction
6.2 Assessing the human rights impact of public
health policies
6.3 Public health and the South African Bill of Rights
6.4 Rights, limitations and the prevention of multi-drug
resistant (MDR) and extreme drug resistant (XDR)
tuberculosis
6.4.1
6.4.2
Adopting a human-rights framework to current
laws, policies and practices aimed at MDR and
XDR-TB prevention
How not to apply a human-rights framework:
Minister of Health, Western Cape v Goliath
6.5 Conclusion
93
93
95
100
102
107
109
119
123
125
125
129
132
137
139
143
149
151
151
156
159
167
167
171
174
177
BIBLIOGRAPHY
iv
CHAPTER
1
RIGHTS, HEALTH, COURTS AND
TRANSFORMATION
1.1 Introduction
The enforcement of a claim – an entitlement to health facilities, goods, and
services as an asset of citizenship – itself has an effect on a claimant's
individual sense of identity, as well as on the broader social meaning of health
and, ultimately, our understanding of health systems.1
Rights are powerful and empowering. They enable individuals and
marginalised groups within society to assert themselves against powerful
entities in the public and private spheres and, thereby, to draw societal
attention to their plight. Where the objects of rights include social goods or
services, the rights further recast claims for access to such goods or services
as moral and legal imperatives, rather than ‘mere’ cries for help.2 As such,
rights at once impact on the manner in which society views delivery of
social goods and services and demand accountability from those
responsible for this delivery.3
Following from this, rights necessarily impact upon the structures and
systems through which social goods and services are delivered, especially
where the rights are legally enforceable against the architects and drivers of
such systems and structures. Rights simultaneously present substantive
1
2
3
AE Yamin ‘Power, suffering and courts: Reflections on promoting health rights
through judicialization’ in AE Yamin & S Gloppen (eds) Litigating health rights: Can
courts bring more justice to health? (2011) 333 336-337.
See PJ WiIliams ‘Alchemical notes: Reconstructing ideals from deconstructed rights’
(1987) 22 Harvard Civil Rights Civil Liberties Law Review 401 411-413, 416. I engage the
socio-legal literature on the utility of rights discourse in more detail in M Pieterse
‘Eating socio-economic rights: The usefulness of rights talk in alleviating social
hardship revisited’ (2007) 29 Human Rights Quarterly 796 801-803. See also the
authorities cited there.
See JC Mubangizi & BK Twinomugisha ‘The right to health care in the specific
context of access to HIV/AIDS medicines: What can South Africa and Uganda learn
from each other?’ (2010) 10 African Human Rights Law Journal 105 128-129; JP Ruger
‘Towards a theory of a right to health: Capability and incompletely theorized
agreements’ (2006) 18 Yale Journal of Law & the Humanities 273 278.
1
2
Chapter 1
goals and outcomes towards which social delivery structures and systems
must gear themselves, as well as yardsticks by which their achievement of
these goals and outcomes can be measured, and mechanisms through
which non-achievement of the goals and outcomes may be corrected.4 By
doing this, rights have the power, over time, to significantly change the
manner in which social delivery systems function.5
But this power is not uncontroversial. Where rights are enforced
through the court system, they alter the balance of power within the state
and cause tensions between courts and the legislative and executive
branches of government over how, and from where, social delivery efforts
are to be driven.6 Moreover, while judicial enforcement of rights has the
real potential to deepen democracy through amplifying the voice of
citizens in conversations over the satisfaction of their socio-economic
needs,7 factors such as unequal access to courts, the power of social
movements and interest groups which make use of the judicial process, as
well as judges’ individual perspectives and value systems, may distort
democratic processes and disrupt or destabilise the pursuit of democratic
projects.8
One field in which the impact of rights-based litigation has been
particularly controversial, is that of health. Around the world, there has
been increased litigation invoking the right to health, and views differ as to
whether this has led to greater enjoyment of this right or has assisted health
systems in delivering its objects. In few places are these questions more
4
5
6
7
8
See S Gruskin & D Tarantola ‘Health and human rights’ in S Gruskin et al (eds)
Perspectives on health and human rights (2005) 3 33-43.
S Gloppen & MJ Roseman 'Introduction: Can litigation bring justice to health?' in Ely
Yamin & Gloppen (n 1 above) 1-2.
See D Brand ‘Socio-economic rights and courts in South Africa: Justiciability on a
sliding scale’ in F Coomans (ed) Justiciability of economic and social rights: Experiences
from domestic systems (2006) 207 225-227; Ely Yamin (n 1 above) 335; A Govindjee &
M Olivier ‘Finding the boundary ‒ The role of the courts in giving effect to socioeconomic rights in South Africa’ (2007) 21 Speculum Juris 167 169-171; S Liebenberg
Socio-economic rights: Adjudication under a transformative constitution (2010) 66-71;
K McLean Constitutional deference, courts and socio-economic rights in South Africa (2009)
108, 113-114; M Pieterse ‘Coming to terms with judicial enforcement of socioeconomic rights’ (2004) 20 South African Journal on Human Rights 383 390-392, 417;
KG Young ‘A typology of economic and social rights adjudication: Exploring the
catalytic function of judicial review’ (2010) 8 International Journal of Constitutional Law
385 386. This is further discussed in section 1.4 below.
See D Brand ‘Judicial deference and democracy in socio-economic rights cases in
South Africa’ (2011) 22 Stellenbosch Law Review 614 622-626; C Cooper ‘South Africa:
Health rights litigation: Cautious constitutionalism’ in Ely Yamin & Gloppen (eds) (n
1 above) 190 210; Pieterse (n 6 above) 392; M Pieterse ‘On “dialogue”, “translation”
and “voice”: A reply to Sandra Liebenberg’ in S Woolman & M Bishop (eds)
Constitutional conversations (2008) 331 336-337.
Cooper (n 7 above) 193-194; S Gloppen ‘Social rights litigation as transformation:
South African perspectives’ in P Jones & K Stokke (eds) Democratising development: The
politics of socio-economic rights in South Africa (2005) 153 158-160; T Madlingozi ‘PostApartheid social movements and the quest for the elusive “new” South Africa’ (2007)
34 Journal of Law & Society 77 94-95; M Pieterse ‘Health, social movements and rightsbased litigation in South Africa’ (2008) 35 Journal of Law and Society 364 379-380.
Rights, health, courts and tranformation
3
acute than in South Africa, where the objects of the right to health coincide
with the government objective of transforming a severely inefficient and
inequitable health system into one which promotes health effectively and
which enables universal, needs-based access to quality health care.
The need for health care reform in South Africa is stark and urgent,
with crumbling health service delivery in a number of provinces currently
raising the concern of human rights bodies and organisations.9 Amidst
crisis management and a range of ad hoc efforts to strengthen different
aspects of the health system, the state is in the process of radically
reconfiguring the totality of the system, with a wide range of legislative and
policy reforms over the last decade-and-a-half currently culminating in the
formulation and implementation of a National Health Insurance system.10
These reform efforts have taken place against the background of a
widely celebrated constitutional dispensation, which centres on a Bill of
Rights entrenching a broad range of fully justiciable human rights,
including several socio-economic rights. The Constitution of the Republic
of South Africa, 1996 awards courts extensive powers of judicial review
over legislative and executive action which, controversially, extends to
review over compliance with the socio-economic rights in the Bill of
Rights. This means that South African courts have a significant say over
the course and effects of social policy processes, including the health
system reforms alluded to above. The political tensions accompanying this
fact are particularly acute at present, with the state recently having ordered
an independent study on 'the transformation of the judicial system and the
role of the judiciary in the developmental South African State', which
purports to centre specifically on the effect of constitutional rights
jurisprudence on the advancement of social transformation and on the
separation of powers between the judiciary and the political organs of
state.11
At this political juncture, then, this book considers and assesses the
ways in which rights-based litigation has thus far impacted on the
9
10
11
On the breakdown of health services in the Eastern Cape, see Eastern Cape Health
Crisis Action Committee Memorandum to MEC Sicelo Gqobana: About the crisis in Eastern
Cape health (September 2013) available through http://www.echealthcrisis.org
(accessed 6 May 2014). On the similar state of health services in Gauteng, see Section
27 & Treatment Action Campaign Monitoring our health: An analysis of the breakdown of
health care services in selected Gauteng facilities (2013). On Mpumalanga, see South
African Human Rights Commission Report in the matter between Democratic Alliance,
Mpumalanga and the Department of Health, Mpumalanga File Ref MP/1213/1060
(December 2013). See further the discussion in section 1.2 below.
See Department of Health, Republic of South Africa National health insurance in South
Africa: Policy paper (2011) as well as section 1.2 and ch 4 below.
Department of Justice and Constitutional Development, Republic of South Africa
Discussion document on the transformation of the judicial system and the role of the judiciary in
the developmental South African state (2012) 27-29. See also IM Rautenbach ‘Policy and
judicial review ‒ political questions, margins of appreciation and the South African
constitution’ (2012) Tydskrif vir die Suid-Afrikaanse Reg 20 20-21.
4
Chapter 1
operation and transformation of different features of the South African
health system. Its aim is both to advance our understanding of this impact
and to assess whether, and how, the manner in which health-related
constitutional rights have been invoked by citizens and social movements,
as well as the manner in which courts have interpreted and enforced these
rights, have shaped it. Whilst indeed concerned with the transformation of
the health system, the book is thus primarily an attempt to reflect upon the
South African experience of judicially enforcing health-related rights.
Accordingly, the book considers the effects of the health-related rights
in the 1996 Constitution, and the litigation in which they have (directly or
indirectly) been invoked, on a number of different features of the health
system. These include the formulation and implementation of health laws
and policies, the implementation of court orders which vindicate the right
to health, processes of health resource allocation and rationing, the
regulation of health care delivery in the private sector, and the promotion
and protection of public health. Admittedly somewhat disparate, these
subject areas have been chosen because they highlight different ways in
which rights typically operate – as individual causes of action, as drivers of
or catalysts for systemic change, as directive principles, as constraints on
policy possibilities, and as enhancers of participatory democracy.
Throughout, the aim of the book is to better understand how rights
discourse and rights-based judicial review have altered the legal and policy
landscape around health care service delivery and health system reform;
how they have at once constrained and enabled it, opened it up for
contestation, inserted patients' needs into the relevant processes and,
importantly, how they have affected the system's ability to meet those
needs.
Out-and-out a desk-based study, the book draws upon and
amalgamates a fairly broad cross-range of literature on the utility of rights
discourse, the forms, limits and possibilities of judicial review, the
recognition, interpretation and enforcement of socio-economic rights, the
bureaucratic impact of judicial decision-making, the nature, functioning
and flaws of the South African health system, and the regulation of the
private sector. Sources consulted include academic writings, reported
court decisions, health care legislation and policy documents, and reports
by NGOs and human-rights bodies on the state of the health system. While
often drawing upon the wealth of available international and comparative
legal materials on these topics, the aim is mostly to present a South African
perspective on the relevant issues, and preference is given to literature
articulating a South African take on doctrines, problems and solutions that
also occur internationally.
In setting the stage for what is to follow, this introductory chapter first
provides a brief overview of the state of the South African health system,
the challenges it faces and the efforts that have been made to overcome
these. Then, I cursorily discuss the content and dimensions of the right to
5
health in international law and indicate the extent to which the various
elements of the right have been embedded in the South African
Constitution. Thereafter, I take a closer look at South African courts, who
have been tasked with adjudicating disputes pertaining to the various
aspects of this right, and whose judgments therefore impact on the
functioning of the health system and on the political efforts to reform it. I
briefly explain the extent of the courts’ constitutional review powers and
trace the way in which they have thus far exercised these in socioeconomic rights cases. While focusing on the manner in which courts have
walked the difficult institutional and political tightrope implied by these
powers, this discussion also provides an introductory overview of the caselaw that forms the focal point of subsequent chapters. To conclude, the
aims and objectives of these subsequent chapters are then introduced.
1.2 The state of the South African health system
As with other aspects of our society, the shadow of Apartheid, and the
inhumanity and inequality occasioned by it, continues to loom large over
the South African health system. In the words of the South African Human
Rights Commission:
The South African health care system, prior to 1994, resembled the
fragmented and failed system that Apartheid was. As such, the health care
system was characterised by abject discrimination, unequal distribution of
resources, unethical execution of responsibilities by health practitioners and
large scale complicity in upholding the system of apartheid. A lack of
coordination and lack of accountability was also common. Apartheid South
Africa offered a co-existence of first-world and third-world health care
services (often operating just metres apart) with the first-world experience
being the almost exclusive preserve of whites.12
Fragmented, structurally deficient, overly focused on the health needs of
white South Africans ‒ as mirrored, for instance, by the overconcentration
of health facilities in urban areas and a disproportionate emphasis on
tertiary over primary health care – and grossly inefficient, the health
system bequeathed to the first democratically elected government in 1994
was simply unable to serve the needs of broader society.13 Despite several
laudable reform efforts in the years since, this largely remains the case.
12
13
South African Human Rights Commission Report Public Inquiry: Access to Health Care
Services (2008) 12.
SAHRC (n 12 above) 12-14. For a detailed exposition of the state of the health system
before and during apartheid, see HCJ van Rensburg ‘A history of health and health
care in South Africa’ in HCJ van Rensburg (ed) Health and health care in South Africa
(2ed 2012) 61 62-115. See further H Coovadia et al ‘The health and health system of
South Africa: Historical roots of current public health challenges’ (2009) 374 The
Lancet 817 820, 825-826; B Harris et al ‘Inequities in access to health care in South
6
Chapter 1
In particular, untenable racial and geographic disparities in access to
health care services continue to linger, and have been exacerbated and
reinforced by the bifurcation of the health system.14 The dying years of
apartheid saw the large-scale privatisation of health care and the
concomitant deregulation of the private health system, which gradually
drew away health care professionals, and wealthier patients, from the
public system.15 Today, the gulf between the cost and quality of health care
service delivery in the private and public health sectors is staggering. By far
the majority of resources spent on health in South Africa are spent in the
private sector, which renders good-quality but exorbitantly expensive ‒
and, often, wasteful and unnecessary ‒ care. Accordingly, while it employs
the majority of South Africa's health care professionals, the private sector
serves only about a fifth of the population, almost all of whom have access
to medical insurance. Given the structural nature of unemployment and
poverty, such uneven access to private sector care continues to reflect the
racial and class patterns of apartheid.16
The majority of poor and black patients, and the bulk of the burden of
disease, thus currently fall to be dealt with by the public health care sector,
which is severely battling to cope therewith. In addition to a serious
shortage of human, financial, technological and infrastructural resources –
at least partly occasioned by the overconcentration of such resources in the
private sector17 ‒ the main challenge faced by the public health sector since
the advent of the democratic era has been poor leadership in the
Department of Health. This has manifested both politically – with the
former, long-time Minister of Health, Dr Manto Tshabalala-Msimang,
being embroiled in a number of political scandals, notably around her and
then-President Thabo Mbeki's support of Aids denialists and concomitant
opposition to anti-retroviral treatment for HIV – and operationally, with
poor management, corruption, bureaucratic tangles, lack of human
resource planning and numerous legal and regulatory deficiencies leading
to the Department being severely dysfunctional.18
13
14
15
16
17
18
Africa’ (2011) 32 Journal of Public Health Policy S102 S103; Adila Hassim et al (eds)
Health & democracy (2007) 12-3; C Ngwena ‘The historical development of the modern
South African health-care system: From privilege to egalitarianism’ (2004) 37 De Jure
290 299-301; B Ruff et al ‘Reflections on health-care reforms in South Africa’ (2011)
32 Journal of Public Health Policy S184.
Harris et al (n 13 above) S119.
See Van Rensburg (n 13 above) 100-112.
See NHI Policy Paper (n 10 above) 4-6 as well as Cooper (n 7 above) 191; Coovadia et al
(n 13 above) 826-827; SAHRC (n 12 above) 7, 14, 57-58; Van Rensburg (n 13 above)
105-106. This is discussed in greater detail in ch 4 and 5 below.
Hassim et al (n 13 above) 25-26.
See S Benatar ‘The challenges of health disparities in South Africa’ (2013) 103 South
African Medical Journal 154 155; Coovadia et al (n 13 above) 829-832; R Gaigher ‘The
political pathology of health care policy in South Africa’ (2000) 32 Acta Academica 44
46; N Geffen Debunking delusions: The inside story of the Treatment Action Campaign
(2010) 77; Hassim et al (n 13 above) 28-29; HCJ van Rensburg & MC Engelbrecht
‘Transformation of the South African health system: Post-1994’ in Van Rensburg (ed)
(n 13 above) 121 165-166; S Woolman et al ‘Why state policies that undermine HIV
7
As a result, the public health system has become unable to deliver care
at the required level and scale. Recent reports on crises in public health care
service delivery in three of South Africa’s provinces all detail human
resource shortages, stock-outs of consumables and essential medicines,
crumbling infrastructure, financial mismanagement, over and under
spending, and poor working conditions in public hospitals. Moreover, all
attribute these mainly to mismanagement, corruption, lack of managerial
capacity and poor leadership.19
Tragically, all of this has coincided with South Africa becoming the
epicentre of the worldwide HIV/AIDS pandemic that catapulted the
South African health burden, which had already been disproportionately
high due to the debilitating impact of poverty and inequality on population
health status, to previously unimaginable levels.20 Not only have HIV
infection rates in South Africa been amongst the highest of the world, but
the epidemic has also come to epitomise the failures in political leadership
alluded to above, with political and ideological denial of the cause, scale
and effects of the epidemic severely hampering the health system's ability
to respond to it.21 Moreover, the epidemic has highlighted the manner in
which private-sector profiteering impacts on the health system's ability to
provide access to health care, in that the system has had to negotiate
exorbitant HIV treatment prices occasioned, amongst other factors, by
pharmaceutical manufacturers’ strong patent rights and by the profit
margins of retail pharma.22
Because of the severity of the burden of disease, the administrative and
political shambles of the public health system and the misdistribution of
health expenditure and resources between the public and private sectors,
South Africa's health outcomes have not improved since 1994 and are
much worse than can be expected of a state with its level of development,
and, in particular, of a state which spends over 8,5 per cent of its GDP on
18
19
20
21
22
lay counsellors constitute retrogressive measures that violate the right of access to
health care for pregnant women and infants’ (2009) 25 South African Journal on Human
Rights 102 125.
See Eastern Cape Health Crisis Action Committee (n 9 above) 2-5 (re the Eastern
Cape); Section 27 & Treatment Action Campaign (n 9 above) 4, 9-29 (re Gauteng);
SAHRC (n 9 above) 31-33, 37-38 (re Mpumalanga).
On the scale and impact of the South African HIV epidemic, see Hassim et al (n 13
above) 26-27; Pieterse (n 8 above) 365 and authorities cited there; N Redelinghuys
‘Health and health status of the South African population’ in Van Rensburg (ed) (n 13
above) 237 276.
See Geffen (n 18 above) 1-4, 193-196; M Heneke 'An analysis of HIV-related law in
South Africa: Progressive in text, unproductive in practice' (2009) 18 Transnational Law
& Contemporary Problems 751 771-773; C Kenyon 'Cognitive dissonance as an
explanation of the genesis, evolution and persistence of Thabo Mbeki's HIV denialism'
(2008) 7 African Journal of AIDS Research 29; Pieterse (n 8 above) 366-369 and
authorities cited there; Van Rensburg & Engelbrecht (n 18 above) 173-174; as well as
ch 3 below.
Hassim et al (n 13 above) 27-28; M Pieterse ‘The legitimizing/insulating effect of
socio-economic rights’ (2007) 22 Canadian Journal of Law & Society 1 5 and authorities
cited there.
8
Chapter 1
health, which is above WHO minimum recommended levels.23 In
particular, South African infant-, under 5- and maternal mortality rates are
incommensurate to this, a fact pointing to the reality that the overall health
system is failing to serve the needs of the populace.24
The failures of the health system have spilled over to many other
aspects of South African life and have caught a great many South Africans
in a debilitating and dehumanising cycle of ill health and poverty.25
Legally, courts have taken judicial notice of the shortcomings of the public
health system and its impact on poor and marginalised South Africans in
a variety of contexts, ranging from the impact of substandard care on the
prognoses of survivors of violent crime and of motor vehicle accidents,26
to the impact of the poor state of prison health care on, for instance,
criminal sentencing and parole.27
Overall, the poor state of the health system has become one of the
major impediments to the advancement of South African society. It has
also led to the rise of a large and active civil society in the field of health,
spearheaded by the Treatment Action Campaign (TAC), arguably postapartheid South Africa’s most prominent and successful social movement.
Together with its allies, the TAC has through the years used a wide range
of legal and extra-legal strategies in attempting to improve the quality of
public health care, especially for people with HIV and AIDS. These
23
24
25
26
27
NHI Policy Paper (n 10 above) 7; Coovadia et al (n 13 above) 817-818, 828; Gaigher (n
18 above) 47; Harris et al (n 13 above) S103; Hassim et al (n 13 above) 85;
DE McIntyre et al ‘Health care financing and expenditure: Post-1994 progress and
remaining challenges’ in Van Rensburg (ed) (n 13 above) 433 433; Pieterse (n 22 above)
4; Redelinghuys (n 20 above) 265-266; Ruff et al (n 13 above) S190; Van Rensburg &
Engelbrecht (n 18 above) 175.
Pieterse (n 22 above) 4. For recent analysis of maternal and child mortality figures, see
N Majoe ‘Health and welfare’ in J Kane-Berman (ed) South Africa Survey 2009-2010
(2010) 467 470-480.
On the structural and cyclical nature and effects of ill health and poverty see, for
instance, C Barker The health care policy process (1996) 119-120; M Blaxter ‘The
significance of socioeconomic factors in health for medical care and the National
Health Service’ in D Blane et al (eds) Health and social organization: Towards a health
policy for the twenty-first century (1996) 32 33-34; S Liebenberg & M O’Sullivan ‘South
Africa’s new equality legislation: A tool for advancing women’s socio-economic
equality?’ (2001) Acta Juridica 70 70-71.
In relation to motor vehicle accidents, see Law Society of South Africa v Minister of
Transport 2011 (1) SA 400 (CC) paras 91-100. In relation to victims of violent crime,
see S v Tembani 2007 (1) SACR 355 (SCA) paras 27-29; P Carstens ‘Judicial
recognition of substandard medical treatment in South African public hospitals: The
slippery slope of policy considerations and implications for liability in the context of
criminal medical negligence’ (2008) 23 SA Public Law 168 173-174, 176-178, 180.
See, for example, Minister of Correctional Services v Lee 2012 (3) SA 617 (SCA) para 11;
Stanfield v Minister of Correctional Services 2004 (4) SA 43 (C) as well as cases discussed
by C van Wyk ‘The impact of HIV/AIDS on bail, sentencing and medical parole in
South Africa’ (2008) 23 SA Public Law 50 54-55.
9
strategies have often centred on the health-related socio-economic rights
guaranteed by the 1996 Constitution.28
Against this political background, successive governments have
attempted to rehabilitate the Department of Health, overcome the
fragmentation of the health system and reduce disparities in health care
service provision.29 As early as 1997, the National Department of Health
published a White Paper on the Transformation of the Health System in South
Africa, which envisaged the alignment of the health system with human
rights principles, its structural reconfiguration and its reorientation
towards the delivery of primary health care.30 Subsequently, a range of
legislative and policy measures were adopted over the years, addressing
issues such as the regulation of medical schemes, community service for
medical and pharmaceutical science graduates, pharmaceutical
procurement and price regulation processes, the provision of mental health
care services and discrimination in the health sector. Most significantly,
2003 saw the long overdue passing of the National Health Act 61 of 2003,
which finally provided a rights-based framework for the structure and
functioning of the entire health system.31
Yet, these developments have been cumulatively unable to address the
main structural deficiency of the health system – the discrepancies in
access to care occasioned by the untenable gap between its private and
public tiers. Indeed, some of the measures taken have arguably served to
entrench this gap. Clearly, more radical structural reform, especially of the
manner in which health expenditure is channelled and health services are
financed is required.32 Such reform is underway. In recent years,
significant progress has been made towards establishing and implementing
a National Health Insurance system for South Africa, with draft policies
having been published and a gradual, phased implementation process
having been launched. The mooted National Health Insurance system
aims towards strengthening the public health system, co-opting the private
system in delivering essential health services to the public and establishing
a mandatory, universal insurance system aimed at providing universal,
needs-based access to health care for all South Africans, based on
28
29
30
31
32
On the origins and activities of the TAC and it's allies see, for instance, Geffen (n 18
above) 48-77; M Heywood ‘Shaping, making and breaking the law in the campaign for
a national HIV/AIDS treatment plan’ in Jones & Stokke (n 8 above) 181-212;
Madlingozi (n 8 above) 87-88; M Mbali ‘The Treatment Action Campaign and the
history of rights-based, patient-driven HIV/AIDS activism in South Africa’ in Jones &
Stokke (n 8 above) 213-243; Pieterse (n 8 above) 368-369.
For more detail on the political health service reform agenda see Van Rensburg &
Engelbrecht (n 18 above) 121-122.
RSA National Department of Health White Paper on the Transformation of the Health
System of South Africa (1997).
These developments are discussed in greater detail in ch 2 below.
NHI Policy Paper (n 10 above) 5-6; SAHRC (n 12 above) 7, 58; Section 27 & Treatment
Action Campaign (n 9 above) 9-16.
10
Chapter 1
principles of social solidarity, equity, effectiveness, appropriateness,
affordability, efficiency and the right of access to health care.33
1.3 Content and dimensions of the right to health
The extent to which rights can be used as political tools to effect structural
change is obviously partially dependent upon the manner in which they are
phrased in legal instruments. In South Africa, the content, outcomes and
implementation of the legislative and policy processes alluded to above
will ultimately be assessed against the legal standards set by the so-called
'right to health', as it finds expression in the South African Constitution. As
elsewhere, South African health-related activism also centres on this right.
In attempting to demarcate the normative possibilities inherent to the right
to health, this subsection provides an overview of its legal content and
implications. It does so, first, by looking at the manner in which the right
is understood at international law, from which it originates. Thereafter, it
locates the various constituent elements of the right in the provisions of the
South African Constitution.
1.3.1
International law 3434
The classic formulation of the right to health in international law is found
in the 1946 World Health Organisation (WHO) Constitution, the
preamble of which proclaims that ‘the enjoyment of the highest attainable
standard of health is one of the fundamental rights of every human being
without distinction of race, religion, political belief, economic or social
condition’. The preamble further defines ‘health’ as ‘a state of complete
physical, mental and social well-being and not merely the absence of
33
34
NHI Policy Paper (n 10 above) 16-18. On the significance of the NHI for the South
African health system and current progress towards its implementation, see McIntyre
et al (n 23 above) 472-474; MP Matsoso & R Fryatt ‘National Health Insurance: The
first 18 months’ (2012/2013) South African Health Review 21; Van Rensburg &
This subsection aims to tease out the constituent elements of the right to health
through a cursory survey of the formulation of the right in leading international and
regional human rights instruments. The aim is not to provide a detailed elaboration on
the international law content and operation of the right, but simply to provide
background for a discussion on the elements of the right that are protected in the South
African Constitution. The focus here is on the formulation of the right in art 12 of the
International Covenant on Economic, Social and Cultural Rights (ICESCR). Other
formulations that influenced the assessment include those in the preamble of the
WHO Constitution; art 12 of the UN Convention on Elimination of all forms of
Discrimination Against Women (CEDAW); art 5(e)(iv) of the UN Convention on the
Elimination of all forms of Racial Discrimination (CERD); art 24 of the UN
Convention on the Rights of the Child (CRC); arts 11 and 13(1) of the European Social
Charter (ESC); art 11 of the American Declaration on the Rights and Duties of Man
(American Declaration); art 10 of the Additional Protocol to the American
Convention on Human Rights in the Area of Economic, Social and Cultural Rights
(San Salvador Protocol), art 16 of the African Charter on Human and Peoples’ Rights
(African Charter) and art 14 of the African Charter on the Rights and Welfare of the
Child (ACRWC).
11
disease and infirmity’. Rather than a right to be healthy, what is
proclaimed appears to be an equal right to share in the spoils of a legal,
political and social environment that allows for health maximisation. As
such, the right to health implicates the health promotion, health protection
and health care provision arms of national health systems.35
In its General Comment on the content of the right to health enshrined
in article 12 of the International Covenant on Economic, Social and
Cultural Rights (ICESCR), the UN Committee on Economic Social and
Cultural Rights (UNCESCR) explained that the right to health should be
understood as encompassing a package of interrelated and mutually
supporting rights that operate jointly to enable the achievement of the
highest attainable standard of physical and mental health.36 This package
comprises both health-related freedoms – such as rights of control over
health and body; personal autonomy in the seeking of health care; input in
health-related decision-making; reproductive freedom and freedom from
torture, non-consensual medical treatment and medical experimentation –
and health-related entitlements that afford citizens ‘the enjoyment of a
variety of facilities, goods, services and conditions necessary for the
realization of the highest attainable standard of health’, as well as ‘the right
to a system of health protection, which provides equality of opportunity for
people to enjoy the highest attainable standard of health’.37 The
UNCESCR further affirmed that the right to health is underscored by a
guarantee of equality and non-discrimination, which entails, first, that
states must abolish and refrain from discrimination in health care policy
and/or practices and, secondly, that they must eradicate substantive
inequalities occasioned by unequal enjoyment of health rights. States
should therefore endeavour to target and dismantle oppressive social
structures that impact perniciously on the health status of vulnerable
groups in society and should prioritise the satisfaction of the health-related
needs of such vulnerable groups.38
35
36
37
38
Gruskin & Tarantola (n 4 above) 26-27.
UNCESCR General Comment 14 The Right to the Highest Attainable Standard of Health
(Art 12 of the Covenant) (2000) paras 1, 3-4, 7-9.
UNCESCR General Comment 14 (n 36 above) paras 8-9.
UNCESCR General Comment 14 (n 36 above) paras 12, 18-22, 25-27, commenting on
art 12 read with arts 2(2) and 3 of the ICESCR. A right of substantive equality of
access to health-related goods and services is also evident from CERD arts 2(1)(c),
5(e)(iv); CEDAW arts 12, 14(2)(b); CRC art 2; ESC art 13(2) and San Salvador
Protocol arts 3, 10(2)(b)(f). See further UNCESCR General Comment 3 The Nature of
States Parties’ Obligations (Art 2, para 1 of the Covenant) (1990) para 1; Principles 14, 37-39
of the Limburg Principles on the Implementation of the ICESCR (1987). For discussion of
the ‘package’ of rights, see E Durojaye ‘Monitoring the right to health and sexual and
reproductive health at the national level: Some considerations for African
governments’ (2009) 42 Comparative International Law Journal of South Africa 227 233234; Gruskin & Tarantola (n 4 above) 12-13; Mubangizi & Twinomugisha (n 3 above)
108-109; M Mushariwa ‘The right to reproductive health and access to health-care
services within the prevention of mother-to-child transmission programme: The reality
on the ground in the face of HIV/AIDS’ in B Goldblatt & K McLean (eds) Women's
social and economic rights (2011) 183 184.
12
Chapter 1
As to health-related entitlements, General Comment 14 regards the
right to health as requiring, in the first instance, the existence of a health
system, an overarching legislative and policy framework facilitating health
protection and promotion, as well as a national health strategy and plan of
action.39 More tangible individual entitlements to health-conducive social
amenities – which the Committee derives primarily from an enumerated
list of obligations in article 12 of the ICESCR – include a right to maternal,
child and reproductive health services;40 a right to environmental health
(including entitlements to healthy living and work environments, safe
drinking water and adequate sanitation services);41 a right to public health
protection through measures aimed at disease prevention, treatment and
control;42 as well as a right to have access to health care facilities, goods
and services.43
This latter entitlement is the one that is most relevant to citizens’
everyday interaction with the health system and, as such, requires
elaboration. Treaty provisions typically do not define what is meant by
‘health care goods and services’, save for indicating that these relate both
to physical and mental health. Several provisions, however, emphasise the
provision of primary health care services, goods and facilities, in line with
the WHO’s distinction between primary, secondary and tertiary health
39
40
41
42
43
44
UNCESCR General Comment 14 (n 36 above) para 8.
Derived from ICESCR art 12(2)(a). See also CEDAW art 12(2); CRC arts 24(2)(a),
24(2)(d).
Derived from ICESCR art 12(2)(b). See UNCESCR General Comment 14 (n 36
above) paras 4, 11, 15. On occupational health, see also ESC art 3; San Salvador
Protocol art 7(e) as well as the many standards contained in conventions of the
International Labour Organisation. On environmental health more broadly, see CRC
art 24; American Declaration art 12; San Salvador Protocol arts 11, 12(1); ESC art
11(1), as well as the decisions of the African Commission on Human and Peoples’
Rights in Union Inter-africaines des Droits de l’Homme v Zaire Communication No 100/
93; Social and Economic Rights Action Centre (SERAC) v Nigeria Communication (2001)
AHRLR 60 (ACHPR 2001).
Derived from ICESCR art 12(2)(c). See UNCESCR General Comment 14 (n 36
above) para 16. On related standards of health promotion and protection, see for
instance WHO Ottawa Charter for Health Promotion (1986); ESC art 11; CRC arts
24(2)(c), (e)-(f); San Salvador Protocol arts 10(2)(c)-(e); African Charter art 16. See
further ch 6 below.
Derived from ICESCR art 12(2)(d). See also UN Charter arts 55(b), 62(1); Universal
Declaration art 25; CRC art 24(2)(b); ESC art 13(1); CRC art 24(1); CERD art 2(1)(c);
American Declaration art 12; African Charter art 16.
See CRC art 24(2)(b); San Salvador Protocol art 10(2)(a); ACRWC arts 14(2)(b), (d).
Primary health care aims to satisfy basic health needs through prevention and
treatment services for commonly encountered medical conditions. Secondary health
care involves prevention and treatment of less common conditions that require more
specialised treatment, whereas tertiary health care refers to highly specialised medical
interventions requiring advanced facilities, drugs and knowledge. See WHO Glossary of
Terms (1984) paras 2-30, as well as a discussion by G Bekker ‘Introduction to the rights
13
care.44 More broadly, General Comment 14 understands the right of
access to health care services to require
the provision of equal and timely access to basic preventative, curative,
rehabilitative health services and health education; regular screening
programmes; appropriate treatment of prevalent diseases, illnesses, injuries
and disabilities, preferably at community level; the provision of essential
drugs; and appropriate mental health treatment and care.45
The UNCESCR further stated that compliance with the right should be
assessed with reference to the availability, accessibility, acceptability and
quality of health care facilities, goods, and services. The standard of
availability requires that particular treatment options as well as the
personnel, facilities and medicines required to affect these are physically
available, in sufficient quantities, in the health sector concerned. The
standard of accessibility, in turn, demands that health care facilities, goods
and services are physically and geographically accessible to all citizens and
are within the financial means of all (implying an additional standard of
affordability), whereas the standard of acceptability requires that health
care facilities, goods and services are culturally appropriate and adhere to
relevant medical ethics and standards. Finally, an entitlement to care of
adequate quality requires that health services, goods and facilities are
‘scientifically and medically appropriate’, and implies further entitlements
to access to trained medical professionals, scientifically approved and safe
medication and medical equipment, as well as of safe drinking water and
adequate sanitation at health care facilities.46
Like those imposed by other socio-economic rights, the obligations
imposed by the international law right to health are not all immediately
enforceable against states. Article 2.1 of the ICESCR demarcates the
extent of state responsibility in terms of the right, by determining that states
44
45
46
concerning health care in the South African Constitution’ in G Bekker (ed) A
compilation of essential documents on the rights to health care (2000) 1 9; S Nadasen Public
health law in South Africa: An introduction (2000) 13; K Pillay ‘Tracking South Africa’s
progress on health care rights: Are we any closer to achieving the goal?’ (2003) 7 Law,
Democracy & Development 55 61; B Toebes The right to health as a human right in
international law (1999) 247.
UNCESCR General Comment 14 (n 36 above) para 17. The term ‘essential drugs’
refers to the WHO’s list of ‘essential drugs’, which includes medicines ‘of utmost
importance, basic, indispensable and necessary for the health needs of the population’
that ‘should be available within the functioning health systems at all times in adequate
amounts, in appropriate dosage forms, with assured quality and at a price that
individuals and the community can afford’, and which have been selected ‘with due
regard to disease prevalence, evidence on efficacy and safety, and comparative costeffectiveness’. DM Chirwa ‘The right to health in international law: Its implications
for the obligations of state and non-state actors in ensuring access to essential
medicine’ (2003) 19 South African Journal on Human Rights 541 554-555.
UNCESCR General Comment 14 (n 36 above) para 12. See further AR Chapman
‘Core obligations related to the right to health and their relevance for South Africa’ in
D Brand & S Russell (eds) Exploring the core content of socio-economic rights: South African
and international perspectives (2002) 35 45; Durojaye (n 38 above) 251-254; Mushariwa
(n 38 above) 188-189; Toebes (n 44 above) 287-288.
14
Chapter 1
must take deliberate steps, through all appropriate measures and to the
maximum of their available resources, in order to achieve progressively the
full enjoyment of socio-economic rights.
Much institutional energy has been spent on clarifying this rather
vague obligation. For instance, the UNCESCR has indicated that the
standard of progressive realisation requires states to take ‘deliberate and
concrete’ steps in an effort to ‘move as expeditiously and effectively as
possible’ towards full realisation of the rights in the ICESCR. Moreover,
the Committee regards ‘deliberately retrogressive measures’ – such as
instances where a state does not take any measures aimed at progressive
realisation, halts progressive realisation or delays the adoption of
appropriate measures unreasonably – as being in violation of the standard.
States are further regarded as being in violation of the ICESCR where
rights remain unrealised despite resources for their realisation being
available. They must also ‘strive to ensure the widest possible enjoyment
of the relevant rights’ within prevailing resource constraints and prioritise
expenditure aimed at satisfying the needs of the most vulnerable sectors of
society.47
Furthermore, certain elements of socio-economic rights may be
regarded as immediately enforceable. It has for instance been shown that
the equality-guarantee underlying the protection of rights such as the right
to health is immediately enforceable and operates unaffected by resourceavailability or progressive realisation.48 Due to their resonance with
autonomy rights protected under the International Covenant on Civil and
Political Rights – which does not contain a clause equivalent to article 2.1
– the same may be said for health-related freedoms.
As to health-related entitlements, increased clarity on the enforceable
dimensions of the right to health may be gained, first, from the
UNCESCR’s elaboration on the obligations to respect, protect and fulfill
the right. The obligation to respect the right to health ‘requires States to
refrain from interfering directly or indirectly with the enjoyment of the
right to health’ and is regarded as having been infringed, for instance, when
access to services is arbitrarily denied to particular individuals or groups,
or where access is outlawed or scaled back.49 The obligation to protect the
right is understood as mandating the adoption of measures preventing
third parties from infringing it, including measures regulating the prices of
medicines and the delivery of health care in the private sector.50 The
47
48
49
UNCESCR General Comment 3 (n 38 above) paras 2, 9, 11-12. See also Limburg
Principles 16, 21; Guidelines 14(e)-(f) of the Maastricht Guidelines on Violations of
Economic, Social and Cultural Rights (1997).
See Limburg Principle 35; Maastricht Guideline 11; UNCESCR General Comment 14
(n 36 above) para 30.
UNCESCR General Comment 14 (n 36 above) paras 33-34. See also Limburg
Principle 72; Maastricht Guidelines 14(a), 15(g). For further discussion, see Durojaye
(n 38 above) 247-248; Toebes (n 44 above) 312-313, 316-326.
15
obligation to fulfil the right is said, at a minimum, to embody immediately
enforceable entitlements to the existence of a functioning health system,
which includes protection and promotion of environmental and public
health.51
Secondly, the UNCESCR has famously developed a ‘minimum core
approach’ to the substantive rights guaranteed by the ICESCR, which
entails the identification of minimum subsistence levels in relation to each
right, which need to be satisfied across the board as a matter of priority,
regardless of resource scarcity and other logistical difficulties.52
In General Comment 3, the UNCESCR stated that the minimum core
of the right to health entailed delivery of ‘essential primary health care’.53
It subsequently provided a more detailed list of core obligations in General
Comment 14. These are:
(a) to ensure the right of access to health facilities, goods and services on a
non-discriminatory basis, especially for vulnerable or marginalized
groups;
(b) to ensure access to the minimum essential food which is nutritionally
adequate and safe, to ensure freedom from hunger to everyone;
(c) to ensure access to basic shelter, housing and sanitation, and an adequate
supply of safe and potable water;
(d) to provide essential drugs, as from time to time defined by the WHO
Action Programme on Essential Drugs;
(e) to ensure equitable distribution of all health facilities, goods and services;
(f) to adopt and implement a national public health strategy and plan of
action, on the basis of epidemiological evidence, addressing the health
concerns of the whole population …54
The General Comment also furnishes an additional list of obligations,
considered as being ‘of comparable priority’ to minimum core obligations.
These are:
50
51
52
53
54
UNCESCR General Comment 14 (n 36 above) paras 33; 35. See also para 51;
Maastricht Guideline 15(d); Durojaye (n 38 above) 248; Toebes (n 44 above) 326-332.
UNCESCR General Comment 14 (n 36 above) paras 33; 36-37, 52. See further Bekker
(n 44 above) 14; Durojaye (n 38 above) 248-249; Toebes (n 44 above) 332-336.
UNCESCR General Comment 3 (n 36 above) paras 10-12. See also Limburg
Principles 25-28, 72; Maastricht Guideline 15(i); Chapman (n 46 above) 37.
According to the WHO Declaration of Alma-Ata (1978), primary health care includes
‘promotion of food supply and proper nutrition; basic sanitation and safe water;
provision of essential drugs and maternal and child care, including family planning;
education regarding prevailing health problems; prevention and control of locally
endemic diseases; appropriate treatment of common diseases and injuries; and
immunization against major infectious diseases’. Bekker (n 44 above) 9. See also
A Hendriks & B Toebes ‘Towards a universal definition of the right to health?’ (1998)
17 Medicine & Law 319 326; Nadasen (n 44 above) 12-14; Toebes (n 44 above) 283-284.
UNCESCR General Comment 14 (n 36 above) para 43.
16
Chapter 1
(a) to ensure reproductive, maternal (pre-natal as well as post-natal) and
child health care;
(b) to provide immunization against the community’s major infectious
diseases;
(c) to take measures to prevent, treat and control epidemic and endemic
diseases;
(d) to provide education and access to information concerning the main
health problems in the community, including methods of preventing and
controlling them;
(e) to provide appropriate training for health personnel, including education
on health and human rights.55
Overall, it appears that the minimum core of the right to health affirms the
importance of certain entitlements forming part of the health rights
package – such as entitlements to equality and non-discrimination and to
the adoption of a public health strategy – while indicating essential
elements of others. In particular, the core of the right to health care
services, goods and facilities may be understood to encompass the
provision of essential drugs, reproductive and child health care services
and immunisation against infectious diseases, whereas core aspects of nonmedicinal determinants of health should similarly be prioritised.
1.3.2
South African constitutional law
South Africa has acceded to some, though not all, of the international
treaties on which the above exposition of the content and dimensions of
the right to health was based. Importantly, Cabinet indicated in October
2012 that it would recommend that Parliament ratify the ICESCR, which
contains the most authoritative formulation of the right.56 But, beyond
specific treaty obligations, the understanding of the right to health at
international law must influence the manner in which the right and its
accompanying obligations are understood in the context of the
Constitution. According to section 39(1) of the Constitution, courts must
promote the underlying values of an open and democratic society, must
take international law into account and may also have regard to foreign
law when interpreting rights in the Bill of Rights. Section 233 of the
Constitution further determines that ‘when interpreting any legislation,
every court must prefer any reasonable interpretation of the legislation that
is consistent with international law over any alternative interpretation that
is inconsistent with international law’. This subsection therefore aims to
55
56
UNCESCR General Comment 14 (n 36 above) para 44. These lists are discussed in
more detail by Bekker (n 44 above) 15-16; Chapman (n 46 above) 49-50, 54; Durojaye
(n 38 above) 239; K Pillay ‘South Africa’s commitment to health rights in the spotlight:
Do we meet the international standard?’ in Brand & Russell (n 46 above) 61 65-66.
See ICESCR Ratification Campaign Driver Group ‘South Africa to Ratify
International Socio-economic Rights Covenant’ NGO Pulse 12 October 2012 http://
www.ngopulse.org (accessed 15 May 2014).
17
align its understanding of the ambit and scope of relevant South African
constitutional provisions to corresponding elements of the ‘health rights
package’ in international law.
The 1996 Constitution does not contain a broad, all-encompassing
'right to health' provision, such as is found in international law. However,
all elements of the right to health exposited above enjoy constitutional
protection. The Bill of Rights contains a number of different provisions
aimed at promoting the realisation of different aspects of the right to
health, which ought to be read together when ascertaining the extent of
health-related protection awarded by the Constitution.57 These are set out
forthwith.
Health-related freedoms
A range of health-related freedoms are protected in terms of section 12(2)
of the Constitution, which determines:
Everyone has the right to bodily and psychological integrity, which includes
the right (a) to make decisions concerning reproduction;
(b) to security in and control over their body; and
(c) not to be subjected to medical or scientific experiments without their
informed consent.
Section 12(2)(a) explicitly guarantees reproductive freedom, and may be
understood to require, first, that legal and other obstacles to exercising
choices relating to procreation – such as choices pertaining to the use of
contraception or to termination of pregnancy – are removed and, secondly,
that persons (especially women) are afforded meaningful access to
reproductive health care facilities, goods and services.58
The remainder of section 12(2) may be viewed as embodying, amongst
other interests, a right to meaningful participation in health-related
decision-making. Section 12(2)(c) explicitly entrenches a right not to be
treated without consent in the context of medical experimentation. More
broadly, the phrase ‘security in and control over [the] body’ in section
12(2)(b) may be interpreted, in accordance with the common law
understanding of physical integrity, as being aimed at protecting individual
57
58
Bekker (n 44 above) 1-2; D Bilchitz ‘Health’ in S Woolman et al (eds) Constitutional law
of South Africa (2ed) ch56A 5; Chapman (n 46 above) 35-36, 51; Cooper (n 7 above)
192-193; Hassim et al (n 13 above) 9; Mubangizi & Twinomugisha (n 3 above) 115.
See JM Berger ‘Taking responsibilities seriously: The role of the state in preventing
transmission of HIV from mother to child’ (2001) 5 Law, Democracy & Development 163
166-168; C Ngwena ‘Access to health care as a fundamental right: The scope and
limits of section 27 of the Constitution’ (2000) 25 Journal for Juridical Science 1 9.
18
Chapter 1
interests in ‘bodily autonomy and self-determination’, including individual
control over physical and mental health status. Read together, subsections
12(2)(b) and (c) therefore appear to award a right to patients to participate
in decisions concerning their health and to prohibit medical interventions
without their informed consent.59
The right to equality
The equality component of the right to health primarily finds protection
under section 9 of the Constitution. The guarantee of ‘equal protection and
benefit of the law’ in section 9(1), as well as section 9(2)’s determination
that the right to equality encompasses the ‘full and equal enjoyment of all
rights and freedoms’, indicate that the Constitution envisages equal access
and enjoyment of socio-economic amenities, including health-related
goods, services and facilities. The state is accordingly tasked with the
programmatic eradication of lingering inequalities in such access and
enjoyment.
Many of these inequalities are occasioned by the operation of
patriarchal social power-structures and their interaction with the remnants
of the structural racial oppression of apartheid, which continue to lend
definite racial and gender dimensions to discrepancies in access to healthconducive social amenities and to health care facilities, goods and
services.60 The right to equality demands that the amelioration of these
discrepancies receives urgent attention in a variety of policy-formulation
and -implementation processes.61
But the more formal dimensions of the right to equality are also
directly relevant to the achievement of the right to health. Read with the
59
60
61
See I Currie & J de Waal The Bill of Rights handbook (5ed 2005) 308-310; C Ngwena
‘Health care decision-making and the competent minor: The limits of selfdetermination’ (1996) Acta Juridica 132 134-135; M Pieterse ‘The interdependence of
rights to health and autonomy in South Africa’ (2008) 125 South African Law Journal
553 558-560; R Thomas ‘Where to from Castell v De Greef ? Lessons from recent
developments in South Africa and abroad regarding consent to treatment and the
standard of disclosure’ (2007) 124 South African Law Journal 188 203-206; FFW van
Oosten ‘Castell v De Greef and the doctrine of informed consent: Medical paternalism
ousted in favour of patient autonomy’ (1995) 28 De Jure 164 166-167.
For examples and discussion of these discrepancies see, for instance, E Buch
‘Discrimination in the area of health and health care’ in Christof Heyns et al (eds)
Discrimination and the law in South Africa Volume 1 (1994) 152 152, 156; Chapman (n 46
above) 52; B Klugman ‘Mainstreaming gender equality in health policy’ (1999) Agenda
AGI Monograph 48 50-51; Mushariwa (n 38 above) 185-187; Ngwena (n 58 above) 6-7; J
Sarkin ‘A review of health and human rights after five years of democracy in South
Africa’ (2000) 19 Medicine & Law 287 288.
On the dictates of substantive equality in relation to socio-economic policy more
generally, see S Fredman Human rights transformed: Positive rights and positive duties
(2008) 175-180; S Liebenberg & B Goldblatt ‘The interrelationship between equality
and socio-economic rights under South Africa's transformative Constitution’ (2007) 23
South African Journal on Human Rights 335 341-343; M Wesson ‘Equality and social
rights: An exploration in light of the South African Constitution’ (2007) Public Law 748
749-753.
19
Constitutional Court’s test for establishing violations of the right to
equality,62 it would seem that the guarantee of equal protection and benefit
of the law in section 9(1) of the Constitution may be used to demand the
inclusion of applicants in the ambit of programmes conferring healthrelated benefits from which they have arbitrarily and/or irrationally been
excluded, or to attain access to health care services where such access is
arbitrarily or irrationally being denied. Similarly, where denial, exclusion
or inequitable provision of health-related benefits results from unfair
discrimination on one or more of the grounds listed in section 9(3) of the
Constitution, or on another ground where discrimination on that ground
‘is based on attributes and characteristics which have the potential to
impair the fundamental human dignity of persons or to affect them
adversely in a comparably serious manner’,63 such denial, exclusion or
inequitable provision will be unconstitutional unless it is found to be
justifiable under the Constitution's general limitation clause.64
Rights to non-medicinal determinants of health
As has been shown, the international law understanding of the right to
health includes entitlements to environmental and occupational health as
well as to several non-medicinal, health-conducive social goods. Rights to
the majority of these amenities are also contained in the Constitution.
Section 24(a) determines that ‘[e]veryone has the right ... to an
environment that is not harmful to their health or well-being’. This openended right obviously guarantees environmental health and is phrased
broadly enough to serve as a constitutional basis for a right to occupational
health – working environment not harmful to health or well-being – and
for rights to a variety of other non-medicinal, health-conducive social
goods.65
Moreover, various rights to non-medicinal, health-conducive social
goods are enshrined by the Bill of Rights. A right to have access to
adequate housing is guaranteed by section 26, whereas subsections
27(1)(b) and (c) award rights to have access to sufficient food and water
and to social security respectively. Children’s rights to shelter and basic
social services find protection under section 28(1)(c), whereas section
29(1)(a) confers a right to basic education. With the exception of the latter
62
63
64
65
Laid down in Harksen v Lane 1998 (1) SA 300 (CC) paras 42-54.
Harksen (n 62 above) para 54(b)(i). Non-listed grounds which would conceivably come
into play in this context include health status, citizenship, geographical location, and
socio-economic status.
See P de Vos ‘Substantive equality after Grootboom: The emergence of social and
economic context as a guiding value in equality jurisprudence’ (2001) Acta Juridica 52
64-65; Liebenberg & Goldblatt (n 61 above) 344-348; JC Mubangizi ‘Public health, the
South African Bill of Rights and the socio-economic polemic’ (2002) Tydskrif vir die
Suid-Afrikaanse Reg 343 346.
E de Wet The constitutional enforceability of economic and social rights: The meaning of the
German constitutional model for South Africa (1996) 119; Mubangizi (n 64 above) 345.
20
Chapter 1
two, these rights are all guaranteed subject to the proviso that the state
must take reasonable measures to achieve their progressive realisation
within its available resources.
Rights to health care services
The best known health-related provision in the Bill of Rights is section
27(1)(a) of the Constitution, which determines: 'Everyone has the right to
have access to ... health care services, including reproductive health care'.
Section 27(1)(a) clearly has an equality-threshold that forbids groupbased distinctions in the provision of health services. In this sense, section
27(1)(a) supplements the right to equality, by embodying an entitlement
against arbitrary or unfair exclusion from the ambit of policies, laws and
programmes which confer health-related benefits and by forbidding the
inequitable provision of health care services.66
Beyond this threshold, section 27(1)(a) is unclear as to the kinds of
‘health care services’ it envisages, save for indicating that such services
include reproductive health care. The right is certainly phrased broadly
enough to be interpreted generously, so as to encompass claims to all
services, goods and facilities aimed at securing the greatest attainable
standard of physical and mental well-being. Depending on the context,
therefore, section 27(1)(a) could be involved in claims for access to medical
treatment for physical or mental health ailments, as well as claims for nonmedicinal health services such as services aimed at health protection and
promotion, and the prevention and diagnosis of illness. When interpreted
in line with the UNCESCR's understanding of the care-related aspects of
the right to health, section 27(1)(a) may thus be understood as requiring the
availability, accessibility, and acceptability of preventative, diagnostic and
curative health care services of adequate quality on primary, secondary
and tertiary levels.67
As is the norm with socio-economic rights in international law, the
state's obligations in terms of the section 27(1)(a) right are qualified by
section 27(2), which determines: 'The state must take reasonable legislative
66
67
68
See P de Vos ‘Grootboom, the right of access to housing and substantive equality as
contextual fairness’ (2001) 17 South African Journal on Human Rights 258 265-266;
Ngwena (n 58 above) 3, 7-9, 27.
See UNCESCR General Comment 14 (n 36 above) paras 12, 17. See further Chapman
op cit (n 46 above) 45; Ngwena (n 58 above) 8; Pillay (n 44 above) 60-62, 64.
See D Bilchitz ‘Towards a reasonable approach to the minimum core: Laying the
foundations for future socio-economic rights jurisprudence’ (2003) 19 South African
Journal on Human Rights 1 18, 21; Chapman (n 46 above) 37; F Coomans ‘Reviewing
implementation of social and economic rights: An assessment of the “reasonableness”
test as developed by the South African Constitutional Court’ (2005) 65 Heidelberg
Journal of International Law 167 191-192; P de Vos ‘So much to do, so little done: The
21
and other measures, within its available resources, to achieve the
progressive realisation of each of these rights [guaranteed in section 27(1)]'.
Apart from limiting the extent to which the benefits implied by section
27(1)(a) may successfully be claimed at any given moment in time, section
27(2) also imposes specific obligations on the state.68 In particular, it
determines that the state is obliged to adopt legal measures in order to
achieve the progressive realisation of the right of access to health care, and
that these measures must be reasonable.
The obligations generated by section 27 must further be understood in
conjunction with section 7(2) of the Constitution, which mirrors
international law by determining that ‘the state must respect, protect,
promote and fulfill the rights in the Bill of Rights’. Conventional wisdom
has it that only the obligation to fulfil the right of access to health care
services is subject to the limiting effect of the progressive realisation
standard and resource limitation in section 27(2) of the Constitution, while
the obligation to respect the right, as well as most aspects of the obligation
to protect it, are more immediately enforceable.69 Infringements of the
obligation to respect the right would typically occur where law or conduct
intentionally deprives existing access to health services – by, for example,
closing existing health care facilities or discontinuing the provision of
particular services in State hospitals – or has the effect of denying or
obstructing such access. The obligation could further be infringed by
health-harming conduct – such as pollution or the marketing of unsafe
pharmaceuticals – by the adoption of deliberately retrogressive measures
or by non-compliance with the guarantee of equal access to health care
services.70 The obligation to protect the right in turn requires that certain
elements thereof should be enforceable against third parties who infringe
them. For instance, claimants should generally be afforded appropriate
remedies where they have received health care services which were not
acceptable or of a reasonable quality.
68
69
70
right of access to anti-retroviral drugs post-Grootboom’ (2003) 7 Law, Democracy &
Development 83 90-91; Ngwena (n 58 above) 22-23.
See, for example, Chirwa (n 45 above) 559, 564; P de Vos ‘Pious wishes or directly
enforceable human rights?: Social and economic rights in South Africa’s 1996
Constitution’ (1997) 13 South African Journal on Human Rights 67 92-94, 100;
S Liebenberg ‘South Africa’s evolving jurisprudence on socio-economic rights: An
effective tool in challenging poverty?’ (2002) 6 Law, Democracy & Development 159 178;
FI Michelman ‘The Constitution, social rights and reason: A tribute to Etienne
Mureinik’ (1998) 14 South African Journal on Human Rights 499 504. Sandra Liebenberg
warns, however, that this conventional wisdom is grounded in legal liberalism's
ideological preference for negative over positive rights and that insisting on privileging
vested rights over positive obligations may be counter-transformative. See Liebenberg
(n 6 above) 86-87; S Liebenberg ‘Grootboom and the seduction of the negative/positive
duties dichotomy’ (2011) 26 SA Public Law 37.
See, for instance, De Vos (n 69 above) 81; De Vos (n 68 above) 88-89; S Liebenberg
‘Violations of socio-economic rights: The role of the South African Human Rights
Commission’ in P Andrews & S Ellmann (eds) The post-apartheid constitutions:
Perspectives on South Africa’s basic law (2001) 405 411-414, 421; Liebenberg (2002) (n 69
above) 163.
22
Chapter 1
As to the obligation to fulfil the right, section 27(2)’s import of the
international law 'progressive realisation' standard raises appears to invite
an understanding of the right as engendering minimum core obligations
similar to those identified by the UNCESCR at international level. It
would certainly seem feasible to interpret section 27(1)(a) read with section
27(2) in this manner, which would mean that rights to access such core
services, together with other, non-core services to which universal access
has already been established through progressive realisation, are viewed as
immediately enforceable.71 However, while the notion of minimum core
‘has the potential to play a valuable role in socio-economic rights
adjudication by signalling the high priority which should be attached in
social policy to ensuring that the urgent material needs of vulnerable and
disadvantaged groups receive immediate attention’,72 opinions are divided
as to whether it is best suited to the adjudication of the state's obligations
in terms of section 27, in the specific context of the short, medium and long
term challenges faced by the South African health system.73
Outside of section 27, three constitutional provisions award
entitlements to particular health care services, goods or facilities. Perhaps
significantly, none of them contains an internal modifier subjecting its
enforcement to resource availability or progressive realisation. They may
thus be read as emphasising particular priority dimensions of the right of
access to health care services, in relation to specific categories of vulnerable
persons.
The first of these provisions, section 27(3), determines that ‘[n]o-one
may be refused emergency medical treatment’. By virtue of its textual
separation from section 27(1)(a) and the strong negative language it
employs, it may be argued that section 27(3) operates free from the
constraints posed by section 27(2) and that it may thus be immediately
71
72
73
See, for instance, De Vos (n 69 above) 97; Bilchitz (n 68 above) 11-13; M Pieterse
‘Resuscitating socio-economic rights: Constitutional entitlements to health care
services’ (2006) 22 South African Journal on Human Rights 473 482-484; C Scott &
P Alston ‘Adjudicating constitutional priorities in a transnational context: A comment
on Soobramoney’s legacy and Grootboom’s promise’ (2000) 16 South African Journal on
Human Rights 206 227.
Liebenberg (n 6 above) 172-173.
For the various arguments advanced in favour and against a minimum core
interpretation of section 27, mostly in the context of the Constitutional Court’s
rejection of the concept, see Bilchitz (n 68 above); D Bilchitz Poverty and fundamental
rights: The justification and enforcement of socio-economic rights (2007) 178-237; K Lehmann
‘In defense of the Constitutional Court: Litigating socio-economic rights and the myth
of the minimum core’ (2006) 22 American University International Law Review 163;
S Liebenberg ‘Socio-economic rights: Revisiting the reasonableness review/minimum
core debate’ in Woolman & Bishop (n 7 above) 303 309-319; Liebenberg (n 6 above)
163-173; Pieterse (n 71 above) 481-484, 488-491; Pieterse (n 7 above) 339-340;
C Steinberg ‘Can reasonableness protect the poor? A review of South Africa’s socioeconomic rights jurisprudence’ (2006) 123 South African Law Journal 264 274-275;
M Wesson ‘Grootboom and beyond: Reassessing the socio-economic jurisprudence of
the South African Constitutional Court’ (2004) 20 South African Journal on Human
Rights 284 303-305; KG Young ‘The minimum core of economic and social rights: A
concept in search of content’ (2008) 33 Yale Journal of International Law 113.
23
enforced against all entities that are able and qualified to render emergency
care. Non-provision of emergency medical treatment would thus be
constitutionally justifiable only in narrowly defined circumstances, in
accordance with the general limitation clause in section 36 of the
Constitution. Moreover, section 27(3) appears to imply a positive
obligation on the state, to ensure that relevant medical services are
available and are adequate to cope with the demands of medical
emergencies.74
Second, under section 28(1)(c), children have the right to ‘basic
nutrition, shelter, basic health care services and social services’. Section
28(1)(c) is narrower in scope than section 27(1)(a), since only basic health
care services – which, it may be argued, should at least be understood as
referring to primary health care services – are guaranteed. Accordingly,
subject to section 36 of the Constitution, the subsection should be
understood as imposing a priority obligation upon the state to provide
children with primary health care services within the broader framework
of progressive realisation.75
Finally, amongst a cluster of rights awarded to detained persons,
section 35(2)(e) of the Constitution awards a right ‘to conditions of
detention that are consistent with human dignity, including at least
exercise and the provision, at state expense of adequate ... medical
treatment’, whereas section 35(2)(f)(iv) awards a right to communicate
with and be visited by a medical practitioner of the detainee’s choice.
Detainees’ health interests have likely been singled out for protection
because of their inability to procure access to medical services for
themselves, and because of the various potential health hazards posed by
incarceration.76 While clearly limited to the provision of such health
services as are ‘adequate’ in light of the broader entitlement to dignified
conditions of detention, it may be submitted that section 35(2)(e)
encompasses at least an entitlement to receive primary health care services,
non-compliance with which is capable of justification only in terms of
section 36 of the Constitution, and that it entitles prisoners to have their
74
75
76
On these aspects of sec 27(3), see for instance Bilchitz (n 57 above) 17-19; Coomans
(n 68 above) 170; De Wet (n 65 above) 117; Liebenberg (n 70 above) 415; Liebenberg
(2002) (n 69 above) 163; M Pieterse ‘Enforcing the right not to be refused emergency
medical treatment: Towards appropriate relief ’ (2007) 18 Stellenbosch Law Review 75 7879; Scott & Alston (n 71 above) 247-248, 251.
See, for instance, De Vos (n 69 above) 87-88; De Wet (n 65 above) 106-107; Liebenberg
(2002) (n 69 above) 162-163; M Pieterse ‘Children's access to health care services
within and outside of the parent-child relationship’ (2010) 73 Tydskrif vir Hedendaagse
Romein-Hollandse Reg 230 232-236; L Stewart 'Interpreting and limiting the basic socioeconomic rights of children in cases where they overlap with the socio-economic rights
of others' (2008) 24 South African Journal on Human Rights 472 473.
See Lee (n 27 above) para 11; M Pieterse ‘The potential of socio-economic rights
litigation for the achievement of social justice: Considering the example of access to
medical care in South African prisons’ (2006) 50 Journal of African Law 118 121; Van
Wyk (n 27 above) 54-55.
24
Chapter 1
individual health needs considered in all decisions impacting on the
duration, locality and conditions of their detention.77
78
1.4 Justiciability of the right to health78
While the primary task of translating the health-related rights in the
Constitution into a lived reality for the people of South Africa rests with
the legislature and executive,79 the rights are also justiciable, meaning that
courts have a say in the manner in which the rights are understood and
implemented. In terms of section 38 of the Constitution, anyone may
approach a court for appropriate relief, either in their own interest, the
interests of another or the public interest when a right in the Bill of Rights
has been infringed or threatened. While courts are not the only institutions
that have been constitutionally empowered to oversee the state’s
compliance with health-related rights,80 they are both the most significant
– in that the political branches of government are constitutionally obliged
to heed their orders – and the most controversial.
All over the world, there tends to be resistance to extending the power
of judicial review over government action to include review based on
social and economic rights. There are many reasons for this, most of which
boil down to political tensions occasioned when unelected courts overturn,
or otherwise ‘interfere with’, the policy decisions of the ‘democratic’
77
78
79
80
See, for instance, GN Barrie ‘Access of incarcerated persons to medical treatment as a
socio-economic right in South Africa’ (2008) Tydskrif vir die Suid-Afrikaanse Reg 120
122-123; De Wet (n 65 above) 110, 113; JC Mubangizi ‘The constitutional rights of
prisoners in South Africa: A critical review’ (2002) 35 De Jure 42 48-49; Pieterse (n 76
above) 121-123.
This subsection contains a very brief overview of some of the socio-economic rights
decisions of the South African Constitutional Court. This overview is limited to the
manner in which the Court has exercised its constitutional review powers. The facts,
decisions and implications of those socio-economic rights cases which relate to the
right to health are discussed in detail in ch 3 below, whereas ch 2, 3, 4 and 5 all
interrogate different aspects of the judicial approach outlined here, in detail.
On the extent of the task of the legislature and executive in this respect, see generally
M Pieterse ‘Legislative and executive translation of the right to have access to health
care services’ (2010) 14 Law, Democracy & Development 1; F Viljoen ‘National
legislation as a source of justiciable socio-economic rights’ (2005) 6 ESR Review 6. The
realisation of the right to health through legislation and policy in South Africa is the
subject of ch 2 below.
In terms of sec 184 of the Constitution, the South African Human Rights Commission
(SAHRC) is inter alia empowered to insist that state departments report on the steps
they have taken towards the progressive realisation of socio-economic rights, to
investigate and report on alleged human rights violations and to conduct research and
educate the public on human rights. On the SAHRC's role in relation to socioeconomic rights specifically, see, generally, C Heyns ‘Taking socio-economic rights
seriously: The “domestic reporting procedure” and the role of the South African
Human Rights Commission in terms of the new Constitution’ (1999) 32 De Jure 195;
J Klaaren ‘A second look at the South African Human Rights Commission, access to
information and the promotion of socioeconomic rights’ (2005) 27 Human Rights
Quarterly 539; Liebenberg (n 70 above); DG Newman ‘Institutional monitoring of
social and economic rights: A South African case study and a new research agenda’
(2003) 19 South African Journal on Human Rights 189.
25
branches of government. This is said to strain the separation of powers
doctrine, and to detract from principles of direct and representative
democracy.81 Courts are further thought of as being ineffective in
reforming socio-economic policy, in that they lack the technical and
financial expertise necessary to decide intricate matters of social policy,
and also do not have the institutional clout or manpower to ensure that
their judgments are heeded.82 In relation to the right to health specifically,
it is often pointed out that courts lack the medical and scientific knowledge
to decide on diagnosis, suitable treatment options and on whether
particular treatment is necessary in a specific case.83 Health and other
social policy decisions are further regarded as being polycentric, in that the
consequences of such decisions are felt in multiple, unforeseen contexts.
Because the scope of litigation is necessarily limited, courts are said to be
inappropriate fora for taking such decisions.84
But, apart from several of these concerns being overstated,85 there are
also distinct advantages to justiciability. Courts are expert legal interpreters
and are thus well placed to flesh out the content of socio-economic rights
and to apply them in concrete contexts. They are further independent,
impartial and even-handed deliberative fora, with expertise in solving
disputes and balancing competing interests. Through exercising the power
of judicial review, they enhance deliberative and participatory democracy,
by holding the legislature and executive accountable for meeting their
constitutional commitments and by forcing them to take note of, and
engage with, citizens’ rights claims.86
The Constitution requires of courts faced with adjudicating socioeconomic rights claims to flesh out the content of the rights in question
81
82
83
84
85
86
In the South African context, these objections to judicial involvement in socioeconomic rights matters are critically discussed by, for instance, Brand (n 6 above) 225226; Liebenberg (n 6 above) 63-66; C Mbazira Litigating Socio-economic rights in South
Africa: A choice between corrective and distributive justice (2009) 5-6, 27-32; McLean (n 6
above) 108, 111-114; Pieterse (n 6 above) 390-392.
In the South African context, see Brand (n 6 above) 225; Liebenberg (n 6 above) 72.
Insofar as they relate to the budgetary dimensions of socio-economic rights, these
issues are discussed in more detail in ch 4 below.
The notion of polycentricity derives, of course, from the seminal work of Lon Fuller
(see LL Fuller ‘The forms and limits of adjudication’ (1978) 92 Harvard Law Review
353). For appropriation in the South African constitutional context, see C Ngwena
‘Access to health care and the courts: A note on Minister of Health v Treatment Action
Campaign’ (2002) 17 SA Public Law 463 470; M Pieterse ‘Health care rights, resources
and rationing’ (2007) 124 South African Law Journal 514 529-530; Scott & Alston (n 71
above) 243. See further SB Shah ‘Illuminating the possible in the developing world:
Guaranteeing the human right to health in India’ (1999) 32 Vanderbilt Journal of
Transnational Law 435 448-449.
See Liebenberg (n 6 above) 72-75; Mbazira (n 81 above) 41-50; C Mbazira
‘Confronting the problem of polycentricity in enforcing the socioeconomic rights in
the South African Constitution’ (2008) 23 SA Public Law 30; McLean (n 6 above) 114115; Pieterse (n 6 above) 392-395. See further ch 4 below.
Brand (n 6 above) 226; Mbazira (n 81 above) 32-37; Pieterse (n 6 above) 391, 394-395
and authorities cited there.
For a discussion of these advantages of the judicial process, see Liebenberg (n 6 above)
45-46; Pieterse (n 6 above) 395 and authorities cited there.
26
Chapter 1
through interpretation, to evaluate whether challenged law or conduct falls
short of the obligations inherent to the rights, to declare law or conduct that
does fall short in this respect unconstitutional and to award appropriate,
just and equitable relief to those whose rights have been infringed thereby.
In carrying out these tasks, courts have to remain aware of the various
separation of powers and related tensions inherent to their role, and should
attempt to minimise these as far as is feasible.87
The structural provisions of the Bill of Rights in the Constitution equip
them well for this. For instance, the fact that all rights in the Constitution
may be limited in terms of a general limitation clause contained in section
36, affords judicial interpreters the luxury of being able to generously and
permissively award content to particular rights, without being hindered by
the fact that there must inevitably be limits to the extent of their
enforcement, since these may properly be deliberated in the limitationstage of proceedings.88 Furthermore, the significant remedial flexibility
enjoyed by South African courts under sections 38 and 172 of the
Constitution enables them not only to respond appropriately to rightsviolations, but also to avoid potentially unjust or institutionally
problematic consequences of declarations of unconstitutionality or of
broad and permissive approaches to rights-interpretation, since any
unwanted consequences thereof may be constrained by the nature of the
remedy awarded in any particular matter.89
South African courts have responded to the challenges posed by the
justiciability of socio-economic rights with significant caution. In the
certification proceedings preceding the coming into operation of the 1996
Constitution, the Constitutional Court dismissed arguments that socioeconomic rights should not be justiciable because of their budgetary
consequences and ‘political’ character. It pointed out that civil and
political rights generated a similar range of obligations to socio-economic
rights, and that their vindication often held similar budgetary
consequences. Accordingly, the Court did not regard the task of
adjudicating socio-economic rights as being altogether that different from
the ‘ordinary’ business of judicial review.90
87
88
89
90
Pieterse (n 6 above) 402-403, 405. See also Brand (n 6 above) 226-227; Hassim et al (n
13 above) 19; Liebenberg (n 6 above) 45, 63-66.
See Liebenberg (n 6 above) 93-97; Pieterse (n 71 above) 478-479; Rautenbach (n 11
above) 32.
Liebenberg (n 6 above) 378-380; Pieterse (n 71 above) 479; Pieterse (n 7 above) 337.
Various remedies may constitute appropriate, just, equitable and effective relief for
unjustifiable infringements of health-related rights, depending on the nature of the
right, the nature of the infringement and the circumstances of each case. See, for
instance, remedial options discussed by Bilchitz (n 68 above) 18, 25-26; M Swart ‘Left
out in the cold? Crafting constitutional remedies for the poorest of the poor’ (2005) 21
South African Journal on Human Rights 215 225-228; W Trengove ‘Judicial remedies for
violations of socio-economic rights’ (1999) 1 ESR Review 8.
Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of
the Republic of South Africa, 1996 1996 (4) SA 744 (CC) paras 77-78.
27
However, the Court seemed to be significantly less confident when
faced with enforcing a socio-economic right for the first time. In
Soobramoney v Minister of Health (KwaZulu-Natal), it was called upon to
decide on the constitutionality of a resource rationing policy of a state
hospital, when an indigent kidney-failure patient who was denied lifesustaining dialysis treatment because of the policy, claimed that it violated
his rights to life, to not be refused emergency medical treatment and to
have access to health care services. In dismissing these claims, the
Constitutional Court appeared distinctly uneasy with having to adjudicate
polycentric health resource allocation issues and adopted a very deferent
stance towards the relevant health policy authority, stating that it would
‘be slow to interfere with rational decisions taken in good faith by the
political organs and medical authorities whose responsibility it is to deal
with such matters’.91
The Court's next socio-economic rights judgment did not involve
health, but provided the institutional blueprint for all future socioeconomic rights adjudication. Government of the RSA v Grootboom involved
a challenge to a provincial housing plan by a group of homeless persons. It
was argued that the right of access to adequate housing encompassed an
immediately enforceable minimum core obligation of rudimentary shelter,
but the Court declined to interpret the right in this way, since it regarded
itself as poorly placed to define the minimum core and since it wanted to
avoid an interpretation of the right that would create an immediately
enforceable legal demand to be housed.92 Instead, the Court zoomed in on
the question of whether the challenged housing plan constituted a
‘reasonable measure’ in terms of section 26(2) of the Constitution. In order
to qualify as such, the Court held, measures adopted in pursuit of the
progressive realisation of socio-economic rights had to be comprehensive,
coherent, balanced and flexible; had to clearly set out the responsibilities
of different spheres of government; could not exclude a significant segment
of society; had to plan, budget and monitor the fulfilment of immediate
needs and the management of crisis situations and had to cater for the
urgent needs of the most vulnerable sectors of society.93 The challenged
policy was declared unreasonable and hence unconstitutional, mainly
because it did not cater for the emergency needs of vulnerable groups.
The reasonableness test developed in Grootboom – the institutional
logic underlying which has been likened to that inherent to reasonableness
91
92
93
94
Soobramoney v Minister of Health (KwaZulu-Natal) 1998 (1) SA 765 (CC) para 29. The
degree of deference adopted by the Court is interrogated in depth in ch 4 below.
Government of the RSA v Grootboom 2001 (1) SA 46 (CC) paras 32, 95.
Ibid paras 39-44, 46, 66, 68, 82. This summary of the reasonableness test was lifted
from Pieterse (n 8 above) 373.
See DM Davis ‘Adjudicating the socio-economic rights in the South African
Constitution: Towards “deference lite”?’ (2006) 22 South African Journal on Human
Rights 301 304, 318; Liebenberg (n 6 above) 133, 173; M Pieterse ‘Procedural relief,
constitutional citizenship and socio-eocnomic rights as legitimate expectations’ (2012)
28 South African Journal on Human Rights 359 361; S Wilson & J Dugard
28
Chapter 1
review in administrative law, in that it allows courts to scrutinise the
adherence of policy to substantive standards without substituting their own
substantive preference regarding the content of the policy for that of the
politically chosen policy maker94 ‒ was employed in relation to the right of
access to health care services in the landmark decision of Minister of Health
v Treatment Action Campaign, where the Constitutional Court found that
government policy which restricted the availability of the drug Nevirapine
in the public health sector, for purposes of prevention of mother-to-childtransmission of HIV, was unreasonable and unconstitutional. The Court
emphatically rejected arguments in favour of a minimum core
interpretation of the right of access to health care services,95 and instead
focused on the reasonableness of the policy. Its reasons for doing this were
almost purely institutional. It stated:
[C]ourts are not institutionally equipped to make the wide-ranging factual
and political enquiries necessary for determining what the minimum core
standards … should be, nor for deciding how public revenues should most
effectively be spent. … Courts are ill-suited to adjudicate upon issues where
court orders could have multiple social and economic consequences for the
community. The Constitution contemplates a rather restrained and focused
role for the courts, namely, to require the state to take measures to meet its
constitutional obligations and to subject the reasonableness of these measures
to evaluation. Such determinations of reasonableness may in fact have
budgetary implications, but are not in themselves directed at rearranging
budgets. In this way the judicial, legislative and executive functions achieve
appropriate constitutional balance.96
The Court concluded that the policy to restrict the availability of
Nevirapine was unreasonable, primarily because of its rigidity and
inflexibility.97
Having made this finding of unconstitutionality, the Court was
somewhat less demure in asserting its power to remedy the constitutional
breach. It rejected arguments advanced by the state that the separation of
powers prevented it from issuing anything other than declaratory orders in
cases of this nature, holding that, since it was constitutionally obliged to
consider whether the state had complied with its constitutional obligations
in formulating policy and to make just and equitable orders that amount to
appropriate relief for a constitutional infringement where this is not the
case, any intrusion into executive terrain made in the course of carrying
out these obligations was ‘an intrusion mandated by the Constitution
itself’.98 It further stated:
94
95
96
97
98
‘Constitutional jurisprudence: The first and second waves’ in M Langford et al (eds)
Socio-economic rights in South Africa: Symbols or substance? (2014) 35 37, 42-43.
Minister of Heath v Treatment Action Campaign (No 2) 2002 (5) SA 721 (CC) paras 26-39.
Paras 37-38.
Paras 80, 95.
Para 99.
29
South African Courts have a wide range of powers at their disposal to ensure
that the Constitution is upheld … How they should exercise those powers
depends on the circumstances of each particular case. Here due regard must
be paid to the roles of the legislature and the executive in a democracy. What
must be made clear, however, is that when it is appropriate to do so, courts
may ‒ and if need be must ‒ use their wide powers to make orders that affect
policy as well as legislation.99
Having boldly asserted its remedial powers, the court then went ahead to
exercise them rather sparingly ‒ it ordered government to remove
restrictions that prevented the use of Nevirapine in the public sector,
beyond research and training sites, where it was medically indicated and
where the capacity to administer it existed, to permit and facilitate the use
of the drug for this purpose and to progressively extend the capacity to
administer it to other sites.100 However, the court did not issue a
supervisory order, for which it endured some criticism.101
Despite the court's focus on the reasonableness of measures being
widely lamented in the literature, mostly for failing to engage with the
content of the rights in question and for allowing a too generous margin of
discretion for the state in defining its socio-economic priorities and
strategies,102 it has largely persisted with the approach subsequent to the
Treatment Action Campaign decision. It has employed the approach in all
subsequent cases pertaining to the positive obligations generated by socioeconomic rights, although none of these involved the right to health. The
institutional deference inherent to the approach was most visible in
Mazibuko v City of Johannesburg, a right to water case where the court was
at pains to emphasise that it regarded the legislature and executive as being
primarily responsible for elaborating the content of socio-economic rights,
and that it its own assessment of the reasonableness of legislative and
executive measures was geared primarily at ensuring that the political
branches were held appropriately accountable for the manner in which
they decided to do so.103
Apart from supplementing the reasonableness approach with an
inquiry into the existence of unfair discrimination in Khoza v Minister of
99
100
101
102
Para 113.
Para 135.
See discussion in ch 3 below.
See, for instance, Bilchitz (n 68 above); Bilchitz (n 73 above) 144-145, 155-157,159162; D Brand ‘The proceduralisation of South African socio-economic rights
jurisprudence, or “what are socio-economic rights for?”’ in H Botha et al (eds) Rights
and democracy in a transformative constitution (2003) 33, 36-37, 46, 49-50, 55; De Vos (n
68 above) 89-90; Liebenberg (2002) (n 69 above) 176, 179, 187; Liebenberg (n 6 above)
173-179; McLean (n 6 above) 187-189; Pieterse (n 71 above) 486-488; Pieterse (n 2
above) 810-813. I consider the appropriateness of various features of the
reasonableness approach in ch 2, 3 and 4 below.
103 Mazibuko v City of Johannesburg 2010 (4) SA 1 (CC) paras 66-67, 160-163. For criticism
of these aspects of the decision see, for instance, Liebenberg (n 6 above) 480; S Wilson
& J Dugard ‘Taking poverty seriously: The South African Constitutional Court and
socio-economic rights’ (2011) 22 Stellenbosch Law Review 664 665-670.
30
Chapter 1
Social Development; Mahlaule v Minister of Social Development,104 a social
security case where legislation which awarded socio-economic benefits
restrictively was also challenged in terms of the right to equality, the
Constitutional Court has substantively deviated from the approach only in
relation to the negative obligations generated by socio-economic rights. In
this regard, it has required an infringement of the obligation to respect the
right of access to adequate housing to be justified in terms of the general
limitation clause in Jaftha v Schoeman; Van Rooyen v Stoltz,105 and has
developed a different remedial paradigm for vindicating the right not to be
evicted from one's home without due legal process, in terms of section
26(3) of the Constitution.106
The right to have access to health care services would come before the
Constitutional Court only twice after Treatment Action Campaign, both
times indirectly. In Minister of Health v New Clicks South Africa, the Court
declared regulations which sought to limit pharmaceutical profit margins
unconstitutional for a range of reasons, which related mostly to the legality
principle and administrative law. However, much of the finding appeared
to be informed by the Court's sense that the regulations would harm the
right of access to health care services by causing the closure of certain rural
and courier pharmacies which served the interests of vulnerable
patients.107 Then, in Law Society of South Africa v Minister of Transport, a
matter which did not explicitly turn upon the vindication of socioeconomic rights at all, the Court declared a regulation which effectively
relegated paraplegic and quadriplegic motor accident victims to be cared
for in public hospitals – by limiting the public compensation payable to
them – unconstitutional, for infringing the right of access to health care
services, since it was shown that the public sector could not provide the
care that these patients required.108 For different reasons, neither of these
cases turned on the reasonableness of policy.
Overall, while there are signs that the Constitutional Court is gradually
becoming more comfortable with the notion of enforcing socio-economic
rights, including health-related rights, commentators generally remain
disappointed by the paucity of substantive standard-setting and the extent
of deference to the political branches evident from its jurisprudence in this
area. It has been pointed out that, if the Court persists in declining to give
104 2004 (6) SA 505 (CC).
105 2005 (2) SA 140 (CC). For critical discussion, see Liebenberg (2011) (n 69 above) 4041.
106 See, for instance, Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC);
Occupiers of 51 Olivia Road, Berea Township and 197 Main Street Johannesburg v City of
Johannesburg 2008 (3) SA 208 (CC); Residents of Joe Slovo Community, Western Cape v
Thubelisha Homes 2010 (3) SA 454 (CC). A discussion of this paradigm is beyond the
scope of this book.
107 Minister of Health v New Clicks South Africa (Pty) Ltd 2006 (2) SA 311 (CC) paras 1, 16, 19
(per the entire Court); 32 (per Chaskalson CJ); 437, 514-517 (per Ngcobo J); 650-651
(per Sachs J); 704-706 (per Moseneke J). See further ch 3 and 5 below.
108 Law Society (n 26 above) paras 91-100, 108.
31
concrete content to socio-economic rights, and linking such content to
remedies that translate into adequate relief for aggrieved individual
claimants, the rights will remain conceptually empty and be of little use to
citizens, who will then not bother to invoke them.109 Moreover, the extent
of deference shown by the Court to the political branches of government in
defining the content of socio-economic rights and in deciding how the
obligations imposed by the rights should be met, has been accused of
stifling dialogue between the branches of government and the citizenry,
limiting accountability and ultimately diminishing deliberative
democracy.110
What appears to be most necessary for the more substantive
vindication of socio-economic rights is for South African judges, who have
all been schooled in a formalist, deferent and rule-bound liberal legal
culture which regards the notion of ‘positive’ rights with suspicion, to
change both their mind-set and their methodology in relation to socioeconomic rights. As Sandra Liebenberg has remarked:
The fulfillment of the transformative potential of socio-economic rights will
depend in part on the willingness of South African judges, practitioners and
other participants in socio-economic rights litigation to revisit and refashion
many traditional concepts of liberal legalism that inhibit creative, innovative
responses to socio-economic rights claims.111
1.5 Conclusion: Aims and objectives of this book
As explained at the outset, this book aims to deepen our understanding of
the different ways in which the judicial vindication of health-related
constitutional rights have impacted on the functioning and transformation
of the South African health system, and thereby to assess whether judicial
involvement in this discrete policy environment has lived up to the
Constitution’s transformative potential. Accordingly, this introductory
chapter has provided overviews of the three central pillars of this project ‒
the state of the health system, the content of the constitutional rights
involved and the legal approach adopted by the courts that have been
tasked with enforcing them.
The remaining chapters of the book, then, study different aspects of the
interaction between these three. They do not advance a particular, overall
argument, or answer a particular, overarching research question. Rather,
they each grapple with the impact of rights discourse and of the judicial
enforcement of justiciable rights on a particular facet of, or challenge faced
109 See Mubangizi & Twinomugisha (n 3 above) 131; Pieterse (n 71 above) 478; Pieterse
(n 2 above) 799; Wilson & Dugard (n 103 above) 10, 23-25; Ely Yamin (n 1 above) 334.
110 See Brand (n 7 above) 619-626; Pieterse (n 7 above) 343-345.
111 Liebenberg (n 6 above) 43. See also Govindjee & Olivier (n 6 above) 169-171;
Mubangizi & Twinomugisha (n 3 above) 131; Pieterse (n 6 above) 396-399.
32
Chapter 1
by, the South African health system. They reveal, I think, a mixed
message: that the health-related rights in the 1996 Constitution have had a
positive, but – unfortunately – limited, impact on the health and lives of
their beneficiaries, that they have simultaneously boosted state efforts at
transforming the health system and complicated the process, that they
have set laudable standards to which the system must aspire whilst
punishing the system for failing to achieve them, that they have inserted
courts into the political arena and enhanced legislative and executive
accountability whilst straining the relationships between these branches of
government. Overall, however, my sense is that their impact has been
positive, that there is much to learn from the instances where this has not
been the case, and that both the health system and its beneficiaries are
better off for their presence.
While largely critical of the somewhat restrained nature in which
South African courts have thus far exercised their constitutional powers in
health-related matters, the book also shows that they are starting to find
their feet and are, in some respects, beginning to fulfil their role as
constitutional watchdogs over compliance with socio-economic rights.
Throughout, the book highlights shortcomings in courts’ existing
approach towards the adjudication of health-related matters and points
towards ways in which it believes courts can enhance their contribution in
mandating, guiding and monitoring the necessary transformation of the
health system.
In chapter 2, the initial focus is on the nature of the measures
undertaken by the legislature and executive, since the time of South
Africa’s democratic transition, to enhance enjoyment of the right to health.
In overviewing the content, achievements and shortcomings of three
selected pieces of legislation, the chapter shows, first, how rights provide
the impetus for legislative and policy reform to achieve their substantive
aims and how they guide the process, secondly, how rights bolster the
legitimacy of progressive but controversial legislative and policy initiatives
and partly insulate them from legal attack and, thirdly, how the mere
constitutional presence of rights is not sufficient to ensure that their
substantive aims are fully realised. In light of the latter conclusion, the
focus shifts to the Constitutional Court's reasonableness analysis, with the
chapter asking whether reasonableness, as employed in health rights
matters, has been sufficient to ensure that the legislature and executive
deliver fully on their constitutional mandate in this context.
Chapter 3 grapples, first, with the different impact that various healthrelated court judgments have had on the lives of the litigants in question as
well as on broader society and, secondly, with the seemingly unpredictable
bureaucratic impact of these judgments. It first engages in detail with the
substantive content of both Constitutional Court and lower court
judgments which have decided health-related rights claims and considers
the judgments' impact on individual and collective struggles for access to
33
health care services. Thereafter, it zooms in on three of these judgments,
which appear to have had disparate and somewhat contradictory impacts
on the regulatory projects to which they have related, in trying to ascertain
whether any particular features of the judgments themselves were
responsible for this. The conclusions reached are then tied to the social and
political forces that surround health system reform in South Africa.
Budgets and resource allocation are typically regarded as lying at the
borders of the separation of powers and therefore at the outskirts of judicial
review. But, as chapter 4 illustrates, the justiciable nature of the healthrelated rights in the South African Constitution has brought resource
questions squarely within the arenas of public and legal deliberation. The
chapter first illustrates how rights discourse has recast questions of
resource allocation and distribution and considers the extent to which the
health-related rights in the Bill of Rights may be said to guide resource
allocation and distribution processes. Thereafter, the institutional tensions
occasioned by this are subjected to closer scrutiny, before the impact of
South African human rights jurisprudence on health budgeting and
financing is assessed. Having shown that the courts are becoming
increasingly comfortable with having to subject assertions of resource
scarcity by the political branches to rights-based review, the chapter
concludes by considering the current funding discrepancies in the twotiered South African health system and speculating over the extent to
which the health rights jurisprudence that has thus far emanated from the
courts may impact on the National Health Insurance policy process.
Chapter 5 finally tackles the divide between the private and public
arms of the South African health system head on, and considers the
manner in which rights discourse and litigation has structured and
constrained state efforts to overcome it. Unlike previous chapters, which
focused on the assertion of health rights against the state by private parties,
this chapter is concerned with the ways in which rights can assist the state
in asserting its reform mandate against private power in various corners of
the private health care industry. After once again sketching the
constitutional imperatives for health system transformation, the chapter
engages with case-law relating to private sector attempts to stall state
efforts at such transformation, in an endeavour to ascertain the extent to
which public law principles shape and constrain health system reform, as
well as the extent to which such reform must respect existing rights of
health care professionals relating to the practice of their profession, as well
as the rights of privileged patients to the continued availability and
accessibility of existing care. Over and above the limitation of private
interests in the pursuit of an equitable health system, the chapter pays
attention to the question of the elaboration and enforcement of private
obligations under health-related constitutional rights.
Finally, chapter 6 engages with the limits of rights and the balancing
of competing rights-based objectives, in relation to the manner in which
34
Chapter 1
health-related and other individual rights structure and constrain state
efforts to promote, ensure and safeguard the public health. While
somewhat out of kilt with the rest of the book, in that the focus is on a
different regulatory environment (namely the protection of public and
environmental health) the chapter, like chapter 5, is concerned with the
manner in which the state’s obligations in terms of the right to health can
be fulfilled in the face of competing obligations imposed by the rights of the
very citizens whose rights it endeavours to advance. The chapter shows
how individual rights, despite sometimes ostensibly conflicting with
collective public health objectives, end up enhancing the achievement of
these objectives, through insisting that public health measures achieve
optimal effectiveness at minimum cost for ill and vulnerable individuals.
By way of a case study of the manner in which individual rights have thus
far been accommodated in state efforts to contain the spread of extreme
drug-resistant tuberculosis, the chapter further provides a critique of the
manner in which courts have struck the balance between individual and
collective interests within a health system that foregrounds respect for
liberty, equality, human dignity and meaningful access to medical care.
CHAPTER
2
RIGHTS THROUGH
LEGISLATION/LEGISLATION
THROUGH RIGHTS:
HEALTH LAW AND POLICY
1
IN THE CONSTITUTIONAL ERA.
2.1 Introduction 1
The impact of rights on legislative and policy environments is particularly
visible in South Africa, because of the sudden and wholesale manner in
which the new constitutional dispensation introduced rights discourse into
a legal and policy terrain from which it was previously almost completely
absent. Not only was South African public law empty of justiciable rights
prior to the adoption of the interim Constitution, but South Africa was also
not a party to most of the major international human rights treaties before
then. The political transition thus involved the introduction of rights
discourse into the South African public law psyche in two ways: First, a
splurge of treaty signatures and ratifications in the mid-1990s meant that
international human rights norms became binding on the state for the first
time.2 Secondly, the inclusion of a justiciable Bill of Rights in the interim
and final Constitutions meant that citizens could also enforce rights
directly against the state, through the courts.
As in most other areas, it was patently clear that the pre-constitutional
health system, together with the laws and policies that propped it up, was
woefully out of step with the new, rights-based public law culture. It starkly
reflected the gross inhumanity, repression and inequality of apartheid
South Africa, was severely dysfunctional and clearly could not meet the
demands posed by South Africa's ever-increasing burden of disease.
1
2
In places, this chapter draws heavily on and, with kind permission from the editors,
partially reproduces sections from M Pieterse ‘Legislative and executive translation of
the right to have access to health care services’ (2010) 14 Law, Democracy & Development
1. It, however, extends significantly beyond the scope of that article.
Treaties signed and ratified by South Africa in the mid-1990s include the International
Covenant on Civil and Political Rights, the UN Convention on the Elimination of All
Forms of Racial Discrimination, the UN Convention on the Elimination of All Forms
of Discrimination Against Women and the UN Convention on the Rights of the Child.
During the same time, government signed, but did not ratify, the International
Covenant on Economic, Social and Cultural Rights. As stated in ch 1, ratification of
this treaty is now imminent. Ch 1, n 56, and accompanying text.
35
36
Chapter 2
Moreover, since it was conceived, and functioned, without any reference
to the right to health, the system simply did not operate on the basis that
those who made use of it were legally entitled to treatment, and that such
treatment had to be rendered in accordance with certain substantive
standards. A radical re-orientation of the system's basic premises and a
complete overhaul of its operation were therefore clearly and urgently
required.
The Constitution makes it clear that the primary responsibility for this
re-orientation and overhaul lies with the state. In particular, the
responsibility rests on the legislature and the executive who, under section
7(2) of the Constitution, are tasked with respecting, protecting, promoting
and fulfilling all of the rights in the Bill of Rights. More specifically, section
27(2) of the Constitution enjoins the state to ‘take reasonable legislative
and other measures, within its available resources, to achieve the
progressive realisation’ of the right to have access to health care services.
But the Bill of Rights does more than just to issue a broad mandate for
change. Through its substantive provisions, it provides concrete guidelines
for such change, whilst insisting on adherence to these guidelines and
tasking the judiciary with monitoring such adherence. As importantly, it
bolsters legislative and policy initiatives aimed at such change by clothing
them in constitutional legitimacy, hence partially insulating them from
political opposition.3
Perhaps predictably then, a sleigh of health-related laws and policies
were introduced in South Africa since the adoption of the 1996
Constitution. While it is not possible to say for certain how many of these
were directly inspired by the Constitution, almost all of them aim explicitly
to give effect to aspects of the right to health and refer to the Constitution
and to the rights it contains as underlying and informing their provisions.
This chapter first engages with the content and implementation of
certain of these laws and policies, in order to illustrate the extent to which
the health-related rights in the Bill of Rights have indeed impacted on the
legislature- and executive-driven overhaul of the health system. The focus,
throughout, is on the extent to which the laws and policies in question have
actually enabled people to access health services as a matter of right. Since
legislation and policy tend to be more specific than overarching
3
On these functions of the rights in the Bill of Rights in relation to law-driven societal
transformation, see P de Vos ‘Substantive equality after Grootboom: The emergence of
social and economic context as a guiding value in equality jurisprudence’ (2001) Acta
Juridica 52 68-69; S Liebenberg ‘South Africa’s evolving jurisprudence on socioeconomic rights: An effective tool in challenging poverty?’ (2002) 6 Law, Democracy &
Development 159 162; M Pieterse ‘What do we mean when we talk about
transformative constitutionalism?’ (2005) 20 SA Public Law 155 164; M Pieterse ‘The
legitimizing/insulating effect of socio-economic rights’ (2007) 22 Canadian Journal of
Law & Society 1 2-3, 9-10.
37
constitutional guarantees, tend to specify concrete entitlements and
obligations, and tend to be accompanied by implementation structures and
frameworks, they have a direct bearing on the extent to which, and the
manner in which, people access the objects of their rights in everyday life.4
As such, they translate the abstract rights in the Bill of Rights into everyday
access to services, and it is on this basis that their effectiveness should
ultimately be judged.
Accordingly, section 2.2 below engages primarily with three pieces of
legislation. First, it looks at the enactment and enforcement of the Choice
on Termination of Pregnancy Act 92 of 1996, which enabled access to
previously forbidden reproductive health care services in South Africa. I
illustrate how the Act explicitly gave effect to a range of constitutional
rights and how this fact has fortified the Act against a number of legal
challenges. I also indicate the limits of this law, by highlighting a number
of continuing impediments to its implementation. Thereafter, the focus
shifts to the National Health Act 61 of 2003, which is arguably the most
important piece of health-related legislation passed in the constitutional
era, as well as the prime legal portal for access to health care services by the
majority of South Africans. I provide an overview of the extent to which
the Act has enabled rights-based access to a variety of health services in the
public health sector and bemoan the negative effects of crucial ‘gaps in
translation’ – resulting mostly from regulatory tardiness – which continue
to hinder its effectiveness. Finally, I discuss some of the provisions of the
Medical Schemes Act 131 of 1998, which has the effect of regulating access
to private sector health care services for members of medical insurance
schemes and their dependants. The degree to which people are enabled to
access health care services in terms of this Act and its accompanying
regulations – which, in practice, apply mostly to middle and upper class
South Africans – is contrasted with the extent of access to public care under
the National Health Act. In conclusion, the section reiterates that, while
individual laws and policies have certainly increased access to health care
services in various settings, the structural inequalities occasioned by South
Africa's two-tier health system very much remain. It then briefly speculates
over what the shortcomings of past legislative and policy reform mean for
the introduction of National Health Insurance.
Given that the Constitution envisages that the legislature and
executive should be held accountable for the manner in which they realise
socio-economic rights, by way of the institution of judicial review, section
2.3 engages with the Constitutional Court's approach to evaluating
4
See D Brand ‘Introduction to socio-economic rights in the South African Constitution’
in D Brand & C Heyns (eds) Socio-economic rights in South Africa (2005) 1 14, 16, 23-24;
Pieterse (n 1 above) 3-5; F Viljoen ‘National legislation as a source of justiciable socioeconomic rights’ (2005) 6 ESR Review 6 8-9; LA Williams ‘Issues and challenges in
addressing poverty and legal rights: A comparative United States / South African
analysis’ (2005) 21 South African Journal on Human Rights 436 439, 447.
38
Chapter 2
whether legislative and other measures that are adopted in pursuit of the
progressive realisation of socio-economic rights pass constitutional
muster. The Court's ‘reasonableness’ approach to the adjudication of
socio-economic rights is thus exposited, evaluated and critiqued, and its
guiding impact on health law and policy is assessed.
2.2 Health legislation in post-democracy South
Africa and its impact on access to care
2.2.1
The Choice on Termination of Pregnancy Act 92 of 1996
(‘CTPA’)
Few individual pieces of legislation have as clearly enabled access to a
particular kind of health service as has been the case with the CTPA. Prior
to its enactment, undergoing an abortion was illegal in South Africa, save
for in exceptional circumstances.5 The criminalisation of abortion, which
was largely out of step with international human rights law, had a
devastating impact on the health and welfare of many, especially poor,
women. When faced with unwanted pregnancy, such women either had to
illegally access unsafe, ‘private’ (‘backstreet’) abortion services, or carry
the pregnancy to term against their will, and at a significant socioeconomic and personal cost.6
The enactment of the Constitution unequivocally signalled that a
radical about-turn in the regulation of access to termination of pregnancy
services was both inevitable and urgent. In addition to espousing a
substantive notion of gender equality, the Constitution explicitly enshrines
a right to reproductive freedom, with section 12(2)(a) thereof determining
that the right to bodily and psychological integrity includes the right ‘to
make decisions concerning reproduction’. Moreover, section 27(1)(a) of
the Constitution awards a right ‘to have access to health care services,
including reproductive health care’ (my emphasis). Together with
government’s ratification, around the same time, of the Convention on the
Elimination of All Forms of Discrimination Against Women, this meant
that a lack of immediate legislative intervention was likely to lead to
constitutional challenge.
5
6
In terms of the Abortion and Sterilization Act 2 of 1975, abortion was only allowed
where pregnancy resulted from rape or incest, where the woman suffered from a severe
mental illness, where the continued pregnancy endangered the woman's life or
seriously threatened her physical or mental health, or where there was a serious risk
that the child would be born with a severe and debilitating physical or mental defect.
In all other circumstances, performing or undergoing an abortion amounted to a
crime.
See C Ngwena ‘Accessing abortion services under the Choice on Termination of
Pregnancy Act: Realising substantive equality’ (2000) 25 Journal for Juridical Science 19
20-21. Many middle and upper-class women, on the other hand, accessed abortion
services outside of the country.
39
Unsurprisingly, therefore, the CTPA was one of the first statutes
passed subsequent to the adoption of the Constitution. Its preamble
explicitly affirms the above constitutional rights and recognises that ‘the
decision to have children is fundamental to women’s physical,
psychological and social health’ and that ‘the State has the responsibility
to provide reproductive health to all, and also to provide safe conditions
under which the right of choice can be exercised without fear or harm’.
Effectively decriminalising abortion, the Act goes on to determine that
women may freely request to have their pregnancies terminated during the
first 12 weeks of gestation. From the 13th to the 20th week of pregnancy,
termination will be performed only after a medical practitioner has been
satisfied that continuing with the pregnancy will result in physical or
mental injury or in harm to the social and economic circumstances of the
woman; or that there is a substantial risk of physical or mental fetal
abnormality, or that the pregnancy resulted from rape or incest. After the
20th week of gestation, abortion will be allowed only where continued
pregnancy endangers a woman's life or will result in the risk of severe
injury or malformation of the fetus.7
In addition to laying down some minimum standards to which
institutions that offer termination of pregnancy services must adhere,8 the
Act further determines that only the consent of the pregnant woman
herself is required before a termination of pregnancy may be performed.9
Pregnant minors must be advised to consult with parents, guardians,
friends or family members before deciding to go ahead with a termination,
but termination services may not be refused where they decline to do so.10
Counselling of women intending to undergo terminations of pregnancy is
to be promoted, but must be non-mandatory and non-directive.11 All
women seeking terminations of pregnancy from a health care establishment must further be informed of their rights in terms of the Act.12
Clearly couched in the language of rights, the Act has been praised for
strongly asserting reproductive freedom and the right of access to
appropriate reproductive health care services, within a health system that
continues to reflect the patriarchal and morally conservative values of
7
8
9
10
11
12
CTPA sec 2. In relation to abortions after the 20th week of gestation, the Act is,
ironically, more strict than its predecessor in that s 2(1)(c) does not allow termination
of late pregnancies that resulted from rape or incest, or in severely mentally-ill women.
On the possible unconstitutionality of this position, see DJ McQuoid-Mason ‘Are the
restrictive provisions of sections 2(1)(c) and 5(5)(b) of the Choice on Termination of
Pregnancy Act 92 of 1996 unconstitutional?’ (2006) 31 Journal for Juridical Science 121.
See CTPA sec 3. These are aimed at ensuring that abortion services are safe and do not
cause harm to women who access them and include that facilities must give access to
appropriately trained medical staff, appropriate operating theatres, surgical equipment
and drugs, emergency facilities, infection control and the like.
CTPA subsecs 5(1) and (2).
CTPA subsec 5(3).
CTPA sec 4.
CTPA sec 6.
40
Chapter 2
broader South African society.13 Crucially, the Act has led to a dramatic
and sustained increase in the number of legal and safe terminations of
pregnancy that are performed annually, whilst simultaneously occasioning
an equally dramatic decrease in abortion-related mortality and
morbidity.14 The fact that terminations of pregnancy services are further,
by legislative decree, available free of charge in the public health sector15
has ensured that they are accessible to women from across all classes.
Yet, a number of problems and controversies remain, many of which
relate directly to the moral and religious objections of many South
Africans to the idea of abortion. Christian organisations, in particular,
have consistently opposed the CTPA and have, on more than one
occasion, resorted to legal challenges in attempts to have its application
restricted.
Shortly after the commencement of the Act, its constitutionality was
challenged by a Christian organisation, which argued that the entirety of
the Act unjustifiably violated fetuses’ constitutional right to life. The
Pretoria High Court dismissed the challenge, holding that the wording of
the provisions in the Bill of Rights did not indicate that the constitutional
drafters intended to depart from the common-law position that fetuses
could not be rights-bearers, and that the challenge thus lacked legal basis.16
Part of the reasoning behind this finding was that the court was not
prepared to accept, in the absence of a specific provision on fetal rights,
that a fetus’ implied right to life could outweigh women’s explicit
competing rights to equality, dignity and reproductive autonomy.17
Some years later, the same organisation challenged the
constitutionality of the consent provisions contained in section 5 of the
Act, in relation to access to termination of pregnancy services by teenage
girls. It was argued that the Act's dispensing of the common law
requirement of parental consent in relation to surgical operations
undergone by their children, in the case of termination of pregnancy,
infringed on the right to parental care in section 28(1)(b) of the
Constitution. The Pretoria High Court rejected this argument, finding that
the Act did not envisage that terminations of pregnancy would be
performed on girls who lacked the capacity to consent thereto
independently of their parents. In relation to those girls who did have the
13
14
15
16
17
See M de Roubaix ‘Ten years hence ‒ has the South African Choice on Termination of
Pregnancy Act, Act 92 of 1996, realised its aims? A moral-critical evaluation’ (2007) 26
Medicine & Law 145 152-153, 156; Ngwena (n 6 above) 21, 23, 31.
See C Pickles ‘Lived experiences of the Choice on Termination of Pregnancy Act 92 of
1996: Bridging the gap for women in need’ (2013) 29 South African Journal on Human
Rights 515 517, 527, as well as figures discussed by De Roubaix (n 13 above) 173;
Ngwena (n 6 above) 31-32.
Under subsec 4(3)(c) of the National Health Act 61 of 2003.
See Christian Lawyers’ Association of SA v Minister of Health 1998 (4) SA 1113 (T) 1121GJ, 1122G, 1122I, 1123C, 1126E.
At 1123E-G.
41
adequate capacity to consent independently, the Court felt that to insist on
parental involvement under all circumstances would unduly infringe the
girls’ constitutional rights to reproductive freedom, access to health care
services, dignity and privacy.18
It is clear that the very fact that the provisions of the CTPA resonate
with several constitutional rights of pregnant women has, in both the
above instances, had a significant influence on the outcome of the cases.
The Constitution’s inclusion of rights of reproductive autonomy and
access to reproductive care has therefore not only ensured that the CTPA
was passed in the first place, but has also lent the Act a significant degree
of fortification against constitutional attack, in a social climate where its
provisions would otherwise not as easily have been tolerated.
But this is not to say that the Act’s implementation has been unmarred
by this social and political context. Indeed, it has been shown that, in
addition to a lack of awareness of the Act’s provisions and a lack of
adequate termination of pregnancy facilities in rural areas, community
attitudes towards abortion remain a significant impediment to pregnant
women actually accessing these services when they require them, with the
result that the problem of unofficial, ‘backstreet’, abortions has not
disappeared.19 In particular, many health care professionals refuse to
perform terminations of pregnancy, either because of fear of community
stigmatisation and hostility, or because they themselves are morally or
religiously opposed to the notion of abortion. In rural areas, where human
resource shortages hamper access to health care at the best of times and
where anti-abortion attitudes are particularly widespread, this often leads
to pregnant women effectively being denied access to termination of
pregnancy services, even where they actively seek them.20
A significant weakness of the CTPA is that it contains no express
provision on conscientious objection by health care professionals, which
means that both women's reproductive health care rights and health care
practitioners’ freedom of conscience are subjected to the idiosyncrasy of
day-to-day practice at health care institutions.21 Section 6 of the CTPA
does determine that women must be informed of their rights in terms of the
18
19
20
21
Christian Lawyers' Association v National Minister of Health 2004 (10) BCLR 1086 (T)
1093I-1094C, 1095A-J, 1096C, 1103 F-J, 1104G-1105J, 1106A-D. For discussion, see
M Pieterse ‘Children's access to health care services within and outside of the parentchild relationship’ (2010) 73 Tydskrif vir Hedendaagse Romein-Hollandse Reg 230 242-243.
See De Roubaix (n 13 above) 155, 174; Ngwena (n 6 above) 33-35; Pickles (n 14 above)
517-520; Pieterse (n 1 above) 15.
De Roubaix (n 13 above) 164-165; Ngwena (n 6 above) 36-39; C Ngwena
‘Conscientious objection and legal abortion in South Africa: Delineating the
parameters’ (2003) 28 Journal for Juridical Science 1 4; Pickles (n 14 above) 519;
M Pieterse ‘Indirect horizontal application of the right to have access to health care
services’ (2007) 23 South African Journal on Human Rights 157 173.
De Roubaix (n 13 above) 164-165; Ngwena (n 6 above) 39; Ngwena (n 20 above) 4, 16;
Pieterse (n 1 above) 15-16.
42
Chapter 2
Act, which could be read to imply that health care practitioners who refuse
to perform terminations should refer women who seek such services to
somewhere where they could, in fact, receive them. But, at least in rural
areas where appropriate health care facilities are few and far between, this
is arguably not sufficient to ensure that women are always able to exercise
their right of access to reproductive health care services.
This goes to show that, much as legislation can advance access to
health care services, legislative lacunae can also constitute a hindrance to
such access. Clearly, in addition to a pressing need for community
education on the importance of access to appropriate reproductive health
care,22 there is need for legal certainty on the nature and extent of health
care practitioners’ obligations, as well as on the manner in which the
balance between the competing rights of health care practitioners and
women should be struck in this regard.23
Until such time as the CTPA is amended accordingly, this balance falls
to be struck by courts. I have argued elsewhere that, in the same way that
the rights served by the CTPA have been held to outweigh rights-based
opposition by moral and religious opponents to the Act in the cases
discussed above, courts should generally hold that implied constitutional
rights of conscientious objection must yield to express rights to
reproductive health care. This, I maintain, should be the case except in
circumstances where a refusal to render services at a particular institution
can be accompanied by an assurance that women may effectively exercise
their rights elsewhere, without undue hardship.24
2.2.2
The National Health Act 61 of 2003 (NHA)
For more than a decade after the democratic transition, the South African
health system languished without framework legislation anchoring it in the
constitutional dispensation. The Department of Health published a
comprehensive White Paper for the Transformation of the Health System of
South Africa in 1997, the aims of which included unifying fragmented
health services into a ‘comprehensive and integrated’ national health
service, promoting equity, accessibility, availability and appropriateness of
health services – which includes increasing the utilisation of health
services, ensuring access to comprehensive care, improving access to
medicines and increasing community involvement in health care service
delivery – focusing on primary health care and addressing human resource
22
23
24
De Roubaix (n 13 above) 174.
Ngwena (n 6 above) 39; Ngwena (n 20 above) 11-13; Pickles (n 14 above) 529; Pieterse
(n 1 above) 16.
Pieterse (n 20 above) 173-174. See also Ngwena (n 6 above) 19, 39; Ngwena (n 20
above) 5, 9, 11-13, 16.
43
issues in the health system.25 But apart from isolated pieces of legislation
(such as the CTPA and the Medical Schemes Act) aimed at bringing
discrete parts of the health system in line with the constitutional vision, the
system continued to operate in terms of its pre-constitutional legislative
and structural framework.
This state of affairs – which was arguably unconstitutional26 ‒
continued until May 2005, when portions of the NHA finally came into
operation. Referred to as ‘arguably the most important Act passed by
Parliament to give effect to the right of everyone to have access to health
care services’,27 the Act aims, in its Preamble, to give effect to the rights
contained in sections 27(2); 27(3); 28(1)(c) and 24(a) of the Constitution,
so as to
unite the various elements of the national health system in a common goal to
actively promote and improve the national health system in South Africa;
provide for a system of co-operative governance and management of health
services, within national guidelines, norms and standards, in which each
province, municipality and health district must address questions of health
policy and delivery of quality health care services; establish a health system
based on decentralised management, principles of equity, efficiency, sound
governance, internationally recognised standards of research and a spirit of
enquiry and advocacy which encourages participation; promote a spirit of cooperation and shared responsibility among public and private health
professionals and providers and other relevant sectors within the context of
national, provincial and district health plans.
In addition to structurally reconfiguring the health system, into a
district-based one emphasising the delivery of primary health care (as
initially envisaged by the 1997 White Paper),28 the provisions of the NHA
present a significant and comprehensive legislative translation of the
constitutional right to have access to health care services into reality for
users of the public health care system.
In particular, the NHA awards several claimable health-related
entitlements to patients who make use of the system. In terms of section
3(1)(e), the Minister of Health must, within available resources, 'ensure the
provision of such essential health services, which must at least include
primary health services, to the population of the Republic as may be
25
26
27
28
Department of Health White Paper for the Transformation of the Health System of South
Africa (1997) sec 1.1.2.
See K Pillay ‘Tracking South Africa’s progress on health care rights: Are we any closer
to achieving the goal?’ (2003) 7 Law, Democracy & Development 55 65, 78.
A Hassim et al (eds) The National Health Act 61 of 2003: A guide (2008) xi.
These structural aspects of the NHA are beyond the scope of this chapter, which
focuses on the extent of claimable entitlements to medicines and care awarded by the
Act. For a thorough exposition and discussion of the structural features of the Act and
the implementation tangles that have marred them, see HCJ van Rensburg &
MC Engelbrecht ‘Transformation of the South African health system: Post-1994’ in
HCJ van Rensburg (ed) Health and health care in South Africa (2ed 2012) 121 135-168.
44
Chapter 2
prescribed after consultation with the National Health Council'. Then,
section 4 of the Act determines:
(1) The Minister, after consultation with the Minister of Finance, may
prescribe conditions subject to which categories of persons are eligible for
such free health services at public health establishments as may be
prescribed.
(2) In prescribing any condition contemplated in subsection (1), the Minister
must have regard to –
(a) the range of free health services currently available;
(b) the categories of persons already receiving free health services;
(c) the impact of any such conditions on access to health services; and
(d) the needs of vulnerable groups such as women, children, older persons
and persons with disabilities.
(3) Subject to any condition prescribed by the Minister [of Health], the State
and clinics and community health centres funded by the State must
provide –
(a) pregnant and lactating women and children below the age of six years,
who are not members or beneficiaries of medical aid schemes, with free
health services;
(b) all persons, except members of medical aid schemes and their dependants
and persons receiving compensation for compensable occupational
diseases, with free primary health care services; and
(c) women, subject to the Choice on Termination of Pregnancy Act, 1996
…, free termination of pregnancy services.29
In terms of section 5, no one may be refused emergency medical treatment
by public or private health care providers, workers or establishments. The
Act further contains several provisions pertaining to the manner in which
health care must be rendered, which flesh out patients’ rights to autonomy
and bodily integrity.30 Importantly, section 6 requires of patients to be
informed, in a language and manner that they can understand, of their
health status and available treatment options. Moreover, section 12
mandates the wide dissemination of information on, amongst other things,
the kinds of health services available, the extent of their availability,
procedures through which available health services may be accessed,
procedures for complaining about the manner in which available services
have been rendered,31 and the rights and obligations of patients.
It thus appears that the NHA awards patients a range of concrete and
claimable entitlements to receive particular health care services, and
29
30
31
On the background, content, implications and implementation of this provision, see
Van Rensburg & Engelbrecht (n 28 above) 127-128.
NHA secs 6-8.
The establishment and implementation of transparent, responsive and widely
publicised complaints procedures is further mandated by sec 18 of the NHA.
45
empowers them to hold health care establishments accountable when they
do not deliver accordingly. This is further operationalised by the provisions
of the Patients’ Rights Charter, a pre-existing policy document of the
Department of Health, which contains a comprehensive general right of
access to health care services alongside rights, for instance, to a healthy and
safe environment, to participation in health-related decision-making, to
choice of health providers, to be referred for a second opinion and to
continuity of care. The Charter further entitles and enables patients to
complain about inadequate care.32 Its provisions however only apply to
patients who had already been admitted to public health care institutions ‒
and do not entitle anyone, for instance, to demand admission – and are not
legally enforceable in and of themselves.33
In order to be effective, legislative provisions such as those in the NHA
require significant further translation through supporting policy and
regulations. Such supporting policy and regulations need to clarify the
exact parameters of entitlements to specific services, the obligations of
different kinds of health care establishments in delivering such services and
the processes through which patients can access their entitlements and
insist on compliance with such obligations.
Lamentably, in the case of the NHA, such clarification has, more often
than not, not been forthcoming. In particular, the Act’s definitions of
concepts central to the enjoyment of the entitlements that it awards are
often vague, nondescript or non-existent. The definition of ‘health
services’, for instance, simply refers back to the relevant constitutional
provisions, none of which provide any clarity on the content of the
concept. The Ministry of Health has further failed to define concepts such
as 'essential health services’, ‘primary health care services’ and ‘emergency
medical services and treatment’ by way of regulations, as envisaged by the
Act. Nor have any regulations been proclaimed that extend the availability
of free health services or that prescribe any conditions for access thereto.34
While it is true that a number of other prior policy documents from the
Department of Health do elaborate on some of these concepts,35 the fact
that they predate the NHA, operate in a myriad of discrete contexts and are
themselves often not legally enforceable means that they do not fully
32
33
34
35
Patients' Rights Charter (2000). For discussion, see Pieterse (n 1 above) 10-11 and
authorities cited there.
See A Hassim et al (eds) Health & Democracy (2007) 232, 247, 266-267; C Ngwena &
R Cook ‘Rights concerning health’ in D Brand & C Heyns (eds) Socio-economic rights in
South Africa (2005) 107 145; Pieterse (n 1 above) 11.
Ironically, this has had the unintended positive consequence that those services listed
in section 4(3) of the Act have, since it’s coming into operation, been available
unconditionally. Hassim et al (n 27 above) 23 n 22.
For instance, section 2.6.2 of the 1997 White Paper (n 25 above) as well as the
Department's subsequent policy document entitled The Primary Health Care Package for
South Africa ‒ A Set of Norms and Standards (2000) contain fairly extensive definitions of
‘primary health care’. A number of care-related concepts are also defined in the
Patients Rights Charter.
46
Chapter 2
articulate the NHA. It is therefore not always clear to precisely what kinds
of services patients can legitimately lay claim in terms of the NHA.
This has meant that there is also uncertainty about the scope of the
obligations upon health care establishments to deliver particular services,36
especially in the private health care sector. For example, while it is clear
from section 5 of the NHA that private health care establishments are
bound by the obligation not to refuse emergency medical treatment, lack
of clarity as to what precisely qualifies as emergency medical treatment37
and a failure to pass regulations pertaining to the delivery thereof38 has
meant that it has largely been left to the private health sector itself to define
the scope of its obligations in this regard.39 This has led to significant
inconsistencies in compliance with the obligation across the private
sector.40
Moreover, the Department of Health's failure to produce several of the
regulations envisaged by the Act has meant that many aspects of the health
system function according to vague, uncertain or undetermined processes
and frameworks, which means that overall implementation of the Act’s
substantive provisions has been haphazard.41 This has been exacerbated
by the fact that a significant portion of the NHA’s provisions have not yet
been brought into operation, several years after the Act initially came into
force.42 The result is that ground-level enjoyment of the right of access to
health care services has been uneven, with the South African Human
Rights Commission reporting, for instance, that less than half of patients
qualifying for free health services under section 4 of the NHA actually
receive them.43
36
37
38
39
40
41
42
43
Van Rensburg & Engelbrecht (n 28 above) 167-168.
On the various definitional issues in relation to emergency care and the various
attempts to define it judicially, by regulation and ethically, see Hassim et al (n 33
above) 233; M Pieterse ‘Enforcing the right not be refused emergency medical
treatment: Towards appropriate relief ’ (2007) 18 Stellenbosch Law Review 75 83-85;
As required by NHA sec 90(1)(m).
For instance, the Hospital Association of South Africa (HASA) has published
Proposed Code of Ethics for Private Hospitals in its 2008 Review (HASA Private
Hospital Review 2008: Examination of Factors Impacting on Private Hospitals (2008) 67)
which contains a detailed definition of what HASA regards as emergency medical
treatment and obliges private hospitals to render such treatment without
discrimination to patients who present themselves at emergency facilities, subject to
reasonable subsequent compensation (clause 5). The provisions of this code are clearly
not legally binding.
See Hassim et al (n 27 above) xv; South African Human Rights Commission (SAHRC)
Report Public inquiry: Access to health care services (2008) 56. See further ch 5 below.
Van Rensburg & Engelbrecht (n 28 above) 167. See for instance the discussion over the
haphazard manner in which patients' rights are limited in the interests of the public
health, in the absence of required regulations pertaining to infectious disease control,
in ch 6 below.
See A Gray & C Jack ‘Health legislation and policy’ (2008) 13 SA Health Review 31 33,
35, 45; Hassim et al (n 33 above) 232, 234, 247, 266-267; Hassim et al (n 27 above) xiii,
xxi, 22fn21, 23fn22, SAHRC (n 40 above) 6, 43, 55-56.
SAHRC (n 40 above) 41.
2.2.3
47
The Medical Schemes Act 131 of 1998
One of the more successful instances of legislative and executive
translation of the right to have access to health care services in post-1994
South Africa has been the regulation of the medical insurance industry.
The Medical Schemes Act and its accompanying regulations have
significantly empowered persons in their efforts to become members of
medical schemes and have enabled members to insist on certain forms of
medical treatment for themselves and their dependants.
Not only does the Act contain the most comprehensive definition of
the concept ‘health services’ to be found in any South African statute or
policy document,44 it entitles all persons who are able to afford
membership of medical schemes to be admitted as members regardless of
their ‘race, gender, marital status, ethnic or social origin, sexual
orientation, pregnancy, disability [or] state of health’45 and prohibits
medical schemes from taking into account the members or their
dependants’ current state of health, or the frequency with which they
require health care, when determining their membership contributions.46
The Act further entitles members to post-retirement continuation of
membership of medical schemes and also enables their dependants to
remain beneficiaries of schemes after the members’ death.47 Crucially,
when read with its accompanying regulations, the Act enables members to
insist that their schemes fully cover the costs of diagnosis and treatment of
a comprehensive and continuously updated list of conditions, designated
in a schedule to the regulations as constituting prescribed minimum
benefits of medical scheme membership, that must be made available to all
members of medical schemes and to their dependants.48
44
45
46
47
48
Section 1 of the Act defines ‘relevant health service’ as ‘any health care treatment of
any person by a person registered in terms of any law, which treatment has as its object
– (a) the physical or mental examination of that person; (b) the diagnosis, treatment or
prevention of any physical or mental defect, illness or deficiency; (c) the giving of
advice in relation to any such defect, illness or deficiency; (d) the giving of advice in
relation to, or treatment of, any condition arising out of a pregnancy, including the
termination thereof; (e) the prescribing or supplying of any medicine, appliance or
apparatus in relation to any such defect, illness or deficiency or a pregnancy, including
the termination thereof; or (f) nursing or midwifery, and includes an ambulance
service, and the supply of accommodation in an institution established or registered in
terms of any law as a hospital, maternity home, nursing home or similar institution
where nursing is practised or any other institution where surgical or other medical
activities are performed, and such accommodation is necessitated by any physical or
mental defect, illness or deficiency or by a pregnancy’.
Medical Schemes Act sec 24(2)(e).
Sec 29(1)(n).
Sec 29(1)(s)-(t).
Sec 29(1)(o) read with sec 33(2)(a) and with regs 7-9 as well as Annexure A of the
General Regulations Made in Terms of the Medical Schemes Act GN R 1262 of 20
October 1999, as amended. The regulations allow for limited conditions to apply to the
enforcement of this entitlement, by for instance permitting medical schemes to insist
48
Chapter 2
The entitlements awarded by the Act and its regulations are
operationalised by the Act’s creation of the Council for Medical
Schemes,49 which oversees medical schemes’ compliance with the Act and
administers a detailed complaints mechanism,50 in terms of which
members may, after having exhausted their schemes’ internal dispute
resolution processes, complain to the Council over, for instance, schemes’
exclusion or restriction of membership, or their failure to cover prescribed
minimum benefits. The Council may suspend the registration of medical
schemes who fail to comply with the provisions of the Act or its
regulations.51 The Council is further involved in making medical aid
consumers aware of their rights and their various forms of recourse in
terms of the Act and the regulations.
Overall, the Medical Schemes Act and its regulations have been
credited for significantly broadening access to (mostly high-quality, private
sector) medical care for members of medical schemes.52 But its
effectiveness has been significantly hampered by the fact that other features
of private health care delivery in South Africa, such as the private hospital
and pharmaceutical industries, remain virtually unregulated. This has
resulted in significant increases in the costs of private health services in
recent years with the effect that, beyond prescribed minimum benefits,
most forms of private medical treatment have become unaffordable to all
except the most well off segments of society. Escalating treatment costs in
the private health sector have further led to a decrease in the number of
medical schemes in South Africa, as well as a reduction in benefits offered
a significant increase in premiums payable to those schemes that remain.53
This aside, one cannot help but be struck by the irony of the fact that
the extent to which claimable entitlements are defined and rendered
operational in terms of the Medical Schemes Act, which applies to a small
portion of relatively privileged South Africans, by far eclipses the degree to
which this is the case under the National Health Act, which applies to the
poor majority. It is equally predictable and disconcerting that the
respective degrees to which laws that target the two segments of the South
African health system are effective in safeguarding the rights of their target
population, but mirror the inequalities inherent to the dual system.
48
49
50
51
52
53
on the use of particular treatment providers. For further discussion of the provisions
highlighted here, see C van Wyk ‘Access to affordable HIV medicines in South Africa:
Patents, parallel importation, generics and medical schemes’ (2006) 39 De Jure 1 21-22.
Medical Schemes Act sec 3.
Established and structured by the Medical Schemes Act secs 47-50.
For an overview of the complaints process, see Hassim et al (n 33 above) 273-274.
Hassim et al (n 33 above) 237.
Department of Health National Health Insurance in South Africa Policy Paper (2011)
(hereinafter ‘NHI Policy Paper’) 11.
2.2.4
49
Overview: Transformation through health legislation and
policy?
The health-related rights in the Constitution have clearly guided the
legislature and executive's efforts at reforming the fragmented, unequal
and inefficient South African health system. The three Acts discussed
above have all, in different ways, contributed to increasing access to health
care services by different segments of the population. Notably, unlike the
health legislation of the previous era, all three of them depict access to
health services as a right and view health care providers (in the public and
private health sectors) as being bound by the obligations inherent to this
right.
Apart from the three Acts discussed above, there have been a number
of other legislative interventions in the health arena. These include: the
Medical, Dental and Supplementary Health Service Professions
Amendment Act 89 of 1997, which addressed some of the human resource
issues in the health sector by introducing compulsory community service
for medical graduates; the Medicines and Related Substances Control
Amendment Act 90 of 1997, which included a number of mechanisms
aimed at increasing the affordability of medicines and has subsequently
spawned controversial regulations aimed at controlling pharmaceutical
retail profit margins; the Promotion of Equality and Prevention of Unfair
Discrimination Act 4 of 2000, which contains provisions on ensuring that
the right to equality is observed in health care service provision; and the
Mental Health Care Act 17 of 2002, which regulates the provision of
mental health care services in accordance with the constitutional
framework. As with the legislation discussed above, these have all
contributed to increased access to health services on the ground.
But, while the above discussion attests to the evident capacity of the
legislature and policy makers to translate the health-related rights in the
Constitution into lived reality through establishing a rights-based
framework for access to health care services, it also starkly highlights the
limitations of legislation-driven health reform. In particular, it is evident
from the discussion of the NHA that legislative and executive tardiness,
whether due to lack of capacity, lack of political will, competing priorities
or other external pressures, has significantly hampered the effective
translation of rights into practice.54 The seeming inability of the
democratic branches to promulgate the supporting laws and regulations
54
For discussion of these and other related weaknesses of legislative and executive-driven
socio-economic rights reform, see R Dixon ‘Creating dialogue about socio-economic
rights: Strong-form versus weak-form judicial review revisited’ (2007) 5 International
Journal of Constitutional Law 391 402-404, 414; S Liebenberg ‘Socio-economic rights:
Revisiting the reasonableness review/minimum core debate’ in S Woolman &
M Bishop (eds) Constitutional conversations (2008) 303 312; M Pieterse ‘On “dialogue”,
“translation” and “voice”: A reply to Sandra Liebenberg’ in Woolman & Bishop (this
note) 331 334-335; Pieterse (n 1 above) 4-5.
50
Chapter 2
that were required to effectively operationalise the NHA has significantly
hindered the practical realisation of the right of access to health care
services in South Africa.
Moreover, the above discussion attests that implementation of
progressive, rights-based health legislation is impacted negatively by the
persisting structural inequalities of South African society in general, and of
the health system in particular. In its recently issued policy paper on
National Health Insurance in South Africa, the Department of Health has
admitted that the legislative and policy reforms to date have not succeeded
in addressing the disparities, inequalities and inefficiencies associated with
South Africa's two-tiered (public versus private) health system, which the
Department regards as ‘unsustainable’ and ‘destructive’.55 This fact is the
main political driver behind the proposed introduction of a National
Health Insurance system, which promises the complete structural overhaul
of the health system.56 The legislative process which is to establish the legal
framework for this overhaul, kicked off in January of 2012.57
This reconfiguration of the health system is clearly necessary, urgent
and mandated by the health-related rights in the Constitution. But the
above discussion warns that it will not be brought about by framework
legislation alone. The failure of the NHA and associated legislation to
bring about the structural change that is required to ensure equitable and
universal access to health services in South Africa has been at least partly
due to the Department of Health's inability to operationalise some of the
more structurally transformative elements of the NHA – such as, for
instance, provisions pertaining to certificates of need – and to the failure of
both the legislature and the Department to clearly articulate and enforce
the health-related obligations of the private health sector. Alongside
endemic obstacles to implementation of the structural features of the Act
(such as lack of managerial capacity, lack of resource backing, and
corruption)58 these more conceptual shortcomings of past legislative and
executive attempts at health system transformation will need to be
overcome in the legislative and policy process leading into the
implementation of National Health Insurance in South Africa.
How to ensure that this is the case? By virtue of the fact that the healthrelated rights in the Constitution are justiciable, it has been left to South
African courts to hold the democratic branches of government accountable
for the manner in which they affect the constitutionally required
55
56
57
58
NHI Policy Paper (n 53 above) 5-6. See also R Amollo ‘In pursuit of health equity in
South Africa A critique of the proposed national health insurance: Legislation and
policy review’ (2009) 10 ESR Review 14 14-16, as well as ch 1, n 32, and accompanying
text.
Ch 1, n 33, and accompanying text. See also ch 4 below.
NHI Policy Paper (n 53 above) 48.
On how these have marred the implementation of the NHA see Van Rensburg &
51
transformation of the health system. At this juncture, then, it is necessary
to consider the manner in which courts have thus far held government to
account in this regard, as well as the extent to which their enforcement of
the health-related rights in the Constitution has guided the transformation
of the health system to date.
2.3 Assessing legislative and executive compliance
with constitutional health rights: The
Constitutional Court's approach
Courts, in a constitutional dispensation that incorporates rights-based
judicial review of state action in the realm of social and economic policy,
are well-placed to identify instances where the legislature or executive have
failed to properly translate aspects of socio-economic rights into reality, as
well as the reasons for such failures, and to insist on their correction.59 By
exercising such oversight, courts hold the democratic branches
accountable for the manner in which they give effect to their obligations in
terms of entrenched rights. In this way, the rights in question become more
than mere directive principles of state policy, in that laws and policies
which aim to give effect to them can be judicially tested for constitutional
compliance.
Through its judgments in matters involving the right of access to health
care services, as well as other socio-economic rights in the Constitution,
the South African Constitutional Court has clarified how it perceives its
role in relation to ensuring legislative and executive accountability in this
context. Focusing on the provision in sections 26(2) and 27(2) of the
Constitution that the state must 'take reasonable legislative and other
measures, within its available resources, to achieve the progressive
realisation' of the right to have access to health care services and other
socio-economic rights, the Court has indicated that, while it will not
dictate to government which steps it should take in aiming to progressively
realise socio-economic rights, it will evaluate whether those steps that
government have decided to take are constitutionally compliant.
Specifically, it will focus on whether challenged socio-economic laws and
policies are reasonable in terms of sections 26(2) and 27(2).
In Mazibuko v City of Johannesburg, a case concerning the right of access
to adequate water, the Court summarised and justified its position in this
regard as follows:
59
Dixon (n 54 above) 405; M Pieterse ‘Coming to terms with judicial enforcement of
socio-economic rights’ (2004) 20 South African Journal on Human Rights 383 405. See
also ch 1, n 87, and accompanying text.
52
Chapter 2
[O]rdinarily it is institutionally inappropriate for a court to determine
precisely what the achievement of any particular social and economic right
entails and what steps government should take to ensure the progressive
realisation of the right. This is a matter, in the first place, for the legislature
and executive, the institutions of government best placed to investigate social
conditions in the light of available budgets and to determine what targets are
achievable in relation to social and economic rights. Indeed, it is desirable as a
matter of democratic accountability that they should do so … The
Constitution envisages that legislative and other measures will be the primary
instrument for the achievement of social and economic rights. Thus it places a
positive obligation upon the state to respond to the basic social and economic
needs of the people by adopting reasonable legislative and other measures. By
adopting such measures, the rights set out in the Constitution acquire content,
and that content is subject to the constitutional standard of reasonableness.
Thus, the positive obligations imposed upon government by the social and
economic rights in our Constitution will be enforced by courts in at least the
following ways. If government takes no steps to realise the rights, the courts
will require government to take steps. If government’s adopted measures are
unreasonable, the courts will similarly require that they be reviewed so as to
meet the constitutional standard of reasonableness … Finally, the obligation
of progressive realisation imposes a duty upon government continually to
review its policies to ensure that achievement of the right is progressively
realised.60
As to precisely what the standard of reasonableness demands of the
democratic branches, the Court held in Government of the RSA v Grootboom
that measures aimed at the progressive realisation of socio-economic rights
have to be reasonable ‘both in their conception and their
implementation’.61 This means that measures have to ‘clearly allocate
responsibilities and tasks to the different spheres of government and ensure
that the appropriate financial and human resources are available [for the
implementation of the right]’,62 and that legislative measures have to be
‘supported by appropriate, well-directed policies and programmes
implemented by the executive’.63 Measures further have to be balanced,
flexible and inclusive, and have to cater for short, medium and long-term
needs,64 but especially for the needs of those ‘whose needs are most urgent
and whose ability to enjoy all rights therefore is most in peril’.65 In
Mazibuko, the Court added that reasonableness demands of the
government to explain the manner in which a policy was formulated as
well as the considerations that impacted on the formulation.66
The reasonableness standard was appropriated in relation to health
policy in Minister of Health v Treatment Action Campaign (TAC), where state
60
61
62
63
64
65
66
Mazibuko v City of Johannesburg 2010 (4) SA 1 (CC) paras 60, 66-67.
Government of the RSA v Grootboom 2001 (1) SA 46 (CC) para 42.
Para 39.
Para 42.
Para 43.
Para 44.
Mazibuko (n 60 above) para 161.
53
policy on the use of anti-retroviral medication to prevent mother-to-childtransmission of HIV was challenged. In addition to employing all elements
of the reasonableness test devised in Grootboom, the Court in TAC held that
reasonableness also required of socio-economic policy to be transparent
and to be communicated effectively to all concerned with its
implementation.67 The challenged policy was found to be unreasonable,
primarily because of the rigid and seemingly arbitrary manner in which it
restricted the availability of an essential drug to a limited number of
designated sites, notwithstanding the need and capacity to broaden access.
The state was accordingly ordered to remove restrictions on the availability
of the drug in the public health sector.68
The Constitutional Court’s ‘reasonableness approach’ has received
some praise for the manner in which it balances the institutional tensions
inherent to rights-based judicial review, by leaving it to the legislative and
executive branches of government to translate and operationalise the
content of constitutional socio-economic rights, while ensuring that
legislative or executive translations and their implementation are
constitutionally compliant.69 The approach is clearly useful for identifying
and correcting flaws in the content of laws and policies aimed at translating
health-related socio-economic rights into practice.70 By insisting on the
rationality, coherence and flexibility of laws and policy, the reasonableness
approach is also indirectly capable of correcting for political blockages in
translation processes, as was the case in TAC, where the finding is credited
for bringing about a change in policy direction within the Department of
Health, by indicating that the state’s political unwillingness to endorse
anti-retroviral treatment for HIV was likely to be found unreasonable.71
It is less clear whether the reasonableness approach can correct for
failures of health-related laws and policies to achieve structural
transformation where this is due to the non-adoption, or to the limited
scope, of such laws or policies. As Stuart Wilson and Jackie Dugard have
argued, the reasonableness approach suggests that constitutional
challenges to the non-delivery of essential goods and services have a better
chance of succeeding when they are rooted in existing legislative or policybased entitlements and concern the implementation of existing measures,
67
68
69
70
71
Minister of Health v Treatment Action Campaign (No 2) 2002 (5) SA 721 (CC) para 123.
Para 135. The judgment and its effects on health policy are discussed in detail in ch 3
below.
See Liebenberg (n 54 above) 319-320; C Steinberg ‘Can reasonableness protect the
poor? A review of South Africa’s socio-economic rights jurisprudence’ (2006) 123
South African Law Journal 264 276, 284; CR Sunstein ‘Social and economic rights?
Lessons from South Africa’ (2001) 11 Constitutional Forum 123 131.
P de Vos ‘Grootboom, the right of access to housing and substantive equality as
contextual fairness’ (2001) 17 South African Journal on Human Rights 258 266, 270-272;
See L Forman ‘Ensuring reasonable health: Health rights, the judiciary, and South
African HIV/AIDS policy’ (2005) 33 Journal of Law, Medicine & Ethics 711; M Pieterse
‘Health, social movements and rights-based litigation in South Africa’ (2008) 35
Journal of Law & Society 364 384, as well as the discussion in ch 3 below at 3.2.3.
54
Chapter 2
rather than when they require detailed steps to be taken to give effect to a
right outside the scope of such legislation or policy.72
As indicated in Mazibuko, failure to adopt any laws or policies in
pursuit of the progressive realisation of socio-economic rights would be
unreasonable. It can also be argued that failure to operationalise legislative
provisions by proclaiming relevant regulations – such as that which
currently impedes the implementation of much of the NHA – falls short of
the requirement that measures must be supported by appropriate executive
programmes and policies.73 But, in cases where measures are in place and
are appropriately operationalised, it would seem that the reasonableness
approach is only capable of measuring them against their own goals, rather
than against the substantive requirements posed by the relevant rights.
Similarly, where failure to translate particular aspects of constitutional
rights into claimable entitlements result from legislative silences or
ambiguity ‒ such as in relation to obligations imposed by the right not to
be refused emergency medical treatment or to the legal parameters of
conscientious objection to terminations of pregnancy – reasonableness
appears to be of limited use.
The reason for this is the failure of the reasonableness analysis to
engage with the content of constitutional rights, as opposed to the content
of measures aimed at giving effect to them. Indeed, the Court in Mazibuko
explicitly declined to enquire into the content of the right of access to
water, holding that such content needs to be elaborated through legislation
or policy, and that the Court's role is limited to assessing the
reasonableness of these content-giving instruments.74 By limiting itself to
evaluating the adherence of socio-economic laws and policies to
essentially procedural requirements of good governance, the Court fails to
indicate what any of the socio-economic rights in the Constitution mean,
not only in terms of the entitlements that they confer upon citizens, but
also in terms of what they substantively expect of the legislature and the
executive in the first place.
This means that there are no substantive guidelines to assist the
democratic branches in formulating laws and policies aimed at giving
effect to health-related rights in the Constitution, no standards against
which legislation and policy's adherence to the substantive demands of the
rights can be measured, and no jurisprudence upon which implementers
can fall back in cases where there are ambiguities or definitional gaps in
legislation or policy – such as those in relation to terms such as ‘health care
services’, ‘essential services’ and ‘emergency services’ in the NHA. It also
72
73
74
S Wilson & J Dugard ‘Constitutional Jurisprudence: The First and Second Waves’ in
M Langford et al (eds) Socio-economic rights in South Africa: Symbols or substance? (2014)
35 52, 59.
Pillay (n 26 above) 73, 78.
Mazibuko (n 60 above) paras 66-67; 160-163. For criticism, see authorities cited in ch 1
n 102.
55
has the effect of limiting citizens’ health-related entitlements to the
parameters of legislation and policy that have been enacted in pursuit of
their progressive realisation, however substantively inadequate these may
be.75
Commentators have almost universally lambasted this peculiar feature
of the Court’s approach, which many view as being out of step with the
judiciary’s constitutional obligation to give content to rights through the
process of interpretation.76 They have argued, instead, that the Court
should adopt or supplement its current approach in a manner that allows
for it to engage, on a contingent, flexible and case-by-case basis, with the
substantive content of the rights and that, in appropriate cases, holds the
democratic branches accountable also in relation to such substantive
content. As Sandra Liebenberg states:
The courts have a critical role and responsibility in terms of the Constitution
to articulate the substantive commitments and values promoted by socioeconomic rights. In so doing, they stimulate deliberative engagement with the
constitutional commitments embodied in the socio-economic rights
provisions by the other branches of government as well as society as a whole.
Only once a focused and sustained effort to develop the values and purposes
underpinning the socio-economic rights at stake in a particular case has
occurred, can a proper assessment be made regarding whether the measures
75
76
This is illustrated, in a different context, by Nokotyana v Ekurhuleni Metropolitan
Municipality 2010 (4) BCLR 312 (CC), where the Constitutional Court declined to
decide whether the right of access to adequate housing in sec 26 of the Constitution
included entitlements to sanitation or lighting. Instead, it decided the applicants' claim
to be provided with sanitation and lighting in terms of ch 12 and 13 of the National
Housing Code – which was enacted, inter alia, to regulate the provision of such
services – and held that they were not entitled to the services in terms of either, since
neither applied to the situation in which the applicants found themselves. Since the
applicants did not challenge the provisions of the Code as being inconsistent with the
Constitution, this was held to exhaust their claim. For criticism of this invocation of
the principle of subsidiarity at the cost of constitutional protection, see D Bilchitz 'Is
the Constitutional Court wasting away the rights of the poor? Nokotyana v Ekurhuleni
Metropolitan Municipality (2010) 127 South African Law Journal 591 594-595.
See, for instance, D Bilchitz ‘Towards a reasonable approach to the minimum core:
Laying the foundation for future socio-economic rights jurisprudenc’ (2003) 19 South
African Journal on Human Rights 1; D Bilchitz Poverty and fundamental rights: The
justification and enforcement of socio-economic rights (2007) 144-145, 155-157, 159-162; D
Brand ‘The proceduralisation of South African socio-economic rights jurisprudence,
or “what are socio-economic rights for?”’ in H Botha et al (eds) Rights and democracy in
a transformative constitution (2003) 33, 36-37, 46, 49-50, 55; P de Vos ‘So much to do, so
little done: The right of access to anti-retroviral drugs post-Grootboom’ (2003) 7 Law,
Democracy & Development 83 89-90; Liebenberg (n 3 above) 176, 179, 187; S Liebenberg
Socio-economic rights: Adjudication under a transformative constitution (2010) 173-179; K
McLean Constitutional deference, courts and socio-economic rights in South Africa (2009)
187-189; M Pieterse ‘Eating Socio-economic rights: The usefulness of rights talk in
alleviating social hardship revisited’ (2007) 29 Human Rights Quarterly 796 810-813; S
Wilson & J Dugard ‘Taking poverty seriously: The South African Constitutional Court
and socio-economic rights’ (2011) 22 Stellenbosch Law Review 664 664-673.
56
Chapter 2
adopted by the State are reasonable given its obligations to ‘respect, protect,
promote and fulfil’ the relevant rights.77
Finally, it must be noted that, in terms of the Constitution, courts' review
function in relation to legislation or policy is only triggered in cases where
citizens challenge particular features thereof as being unconstitutional in
the first place. This is unlikely to happen where citizens are themselves not
clear on the extent of their entitlements under the Constitution. The
guiding function of judicial review, limited as it may be under the Court's
current approach, is therefore also likely to be limited to one or two
features of the legislative and policy scheme aimed at giving effect to
constitutional health rights, and is unlikely, in the absence of more
substantive pronouncements on the part of the courts, to impact on health
system transformation more broadly.
2.4 Conclusion
The Constitution's entrenchment of a range of health-related rights clearly
required that the South African health system had to be transformed, and
clearly envisaged that such transformation would be led by the democratic
branches of government. This chapter has shown that such transformation
has only partly occurred. While the health system now operates on a
rights-based premise, and while a significant number of impressive
legislative and other measures have served to enhance access to health care
services and to reduce inequalities inherent to the operation of the health
system, the system remains inequitable and inefficient.
It is further clear from the discussion in this chapter that legislation and
policy can make abstract constitutional rights tangible by providing
claimable entitlements to the beneficiaries of rights. Legislative provisions
discussed here, as well as the policies that operationalise them, have
awarded South Africans significant entitlements in relation to health care
services rendered in the public and private health sectors. However, the
translation of the health rights in the Constitution into such tangible
entitlements remains incomplete in a number of respects. This has mainly
been attributed to certain failures on the part of the legislature and
executive, in particular in relation to the proclamation of policy required
to operationalise relevant legislative provisions.
As to the impact of the rights in the Constitution on the content of the
laws and policies that purport to give effect to them, the chapter has
indicated that, apart from mandating the adoption of relevant legislative
77
Liebenberg (n 76 above) 183. See also Brand (n 76 above) 37, 53-54; S Liebenberg
‘Needs, rights and transformation: Adjudicating social rights’ (2006) 17 Stellenbosch
Law Review 5 31-33; M Pieterse ‘Resuscitating socio-economic rights: Constitutional
entitlements to health care services’ (2006) 22 South African Journal on Human Rights
473 486-488; Wilson & Dugard (n 76 above) 669-673.
57
and policy measures in the first place, and from clothing such measures in
constitutional legitimacy – hence providing them a measure of fortification
against opposition – the extent to which the rights can guide the content of
law and policy and hold government accountable in terms of its
constitutional obligations depends largely on the manner in which courts
exercise their review function in terms of the Bill of Rights. In this regard,
the chapter has exposited and critiqued the Constitutional Court's
reasonableness approach to socio-economic rights adjudication. In
particular, it has joined other commentators in arguing for a more
substantive approach to reasonableness that links to a judicially elaborated
understanding of the content of the health-related rights in the
Constitution.
CHAPTER
3
HEALTH RIGHTS LITIGATION,
INDIVIDUAL ENTITLEMENTS
1
AND BUREAUCRATIC IMPACT,
3.1 Introduction 1
The political decision to make the socio-economic rights in the
Constitution justiciable was not uncontroversial. Concerns were expressed
that justiciability would thrust courts into the political arena, where they
would be forced to pronounce on the validity of polycentric policy
decisions in relation to which, conventional wisdom goes, they are
institutionally ill-equipped and lack the required democratic legitimacy. It
was further feared that judicial decisions which overturn legislation or
executive action pertaining to socio-economic delivery would derail or
significantly frustrate delivery efforts and could ultimately thwart
legitimate political attempts to transform society.2 Further, some
commentators pointed to the not insignificant danger of delegitimising the
constitutional project by unrealistically indicating to citizens that they
could use the legal process to demand the immediate satisfaction of their
every material need, only for their hopes subsequently to be dashed by
defeat or, worse still, by empty victory.3
1
2
3
In sections 3.2 and 3.3, this chapter draws heavily on and, with kind permission from
the editors, partially reproduces and elaborates on sections from M Pieterse ‘Health,
social movements and rights-based litigation in South Africa’ (2008) 35 Journal of Law
& Society 364. Sections 3.2, 3.4 and 3.5 are based on an unpublished paper entitled
‘The real and imagined impact of justiciable health rights on the South African health
system’ presented at a conference on ‘The Individual v the State’ organised by the
Open Society Foundation; Central European University and the European Court for
Human Rights, held in Budapest, June 2011.
I have elaborated on some of these institutional arguments advanced against the
justiciability of socio-economic rights in ch 1 above at 1.4. See further M Pieterse
‘Coming to terms with judicial enforcement of socio-economic rights’ (2004) 20 South
African Journal on Human Rights 383 389-396.
See, particularly, DM Davis ‘The case against the inclusion of socio-economic
demands in a Bill of Rights except as directive principles’ (1992) 8 South African Journal
on Human Rights 475 484-485.
59
60
Chapter 3
The idea that the operation and transformation of the health system
could be impacted by the adjudication of the specific demands of
individual patients was therefore at once exciting and worrying. On the
one hand, constitutional rights pertaining to access to health care held the
promise of a more egalitarian and patient-focused health system, which
catered for the health needs of all, but especially for those of poor and
marginalised persons. On the other, it was unsure how the South African
health system, seemingly forever teetering on the brink of collapse, would
absorb judgments that directly impacted on its operation. The health
policy arena is tremendously complex, polycentric and politically loaded.
Resources are limited, competing demands are many and stakes are high.
Whether rights-based litigation could simultaneously live up to its promise
of ensuring that the needs of individual patients are met, and ensure
increased access to health services more broadly, by contributing to a more
inclusive, equitable and efficient health system, was thus by no means
certain.
Since 1996, South African courts, led by the Constitutional Court,
have decided several high-profile socio-economic rights matters, a fair
number of which have involved the right to have access to health care
services. Throughout, the courts have displayed acute awareness of the
potential polycentric consequences of their judgments and have carefully
tailored both their general approach to socio-economic rights adjudication
and the orders that they have handed down in such matters, in an attempt
to minimise these.4 While some of the Constitutional Court's judgments
suggest that it has accordingly adopted a hands-off approach to matters
involving socio-economic policy – which, it is feared, may strip the socioeconomic rights in the Constitution of much significance – others indicate
that the Court is comfortable with the fact that its judgments will often
impact on law and policy, and regards such impact as a necessary
consequence of upholding the rights in the Bill of Rights. At least in
relation to the right to have access to health care services, the judgments
appear to have become increasingly bold in this regard and are generally
heralded for advancing the health-related interests of poor and vulnerable
South Africans within the context of broader health system reform.
But this is not to say that the judgments have necessarily made a
substantial difference in the lives of their beneficiaries, or that their impact
on health and other social policies has always been predictable,
uncontroversial or desirable. Indeed, in certain contexts, the opposite has
sometimes been true. As to individual patients, courts have often been
lambasted for refusing to interpret the right of access to health care services
as engendering immediately claimable individual entitlements – a refusal
which, it is feared, could ultimately discourage the poor from relying on
4
DM Davis ‘Adjudicating the socio-economic rights in the South African Constitution:
Towards “deference lite”?’ (2006) 22 South African Journal on Human Rights 301 323.
Health rights litigation, individual entitlements and bureaucratic impact
61
constitutional rights in order to attempt to satisfy their health needs, as will
be discussed below. More broadly, while most judgments upholding
health-related constitutional rights have purported to advance the
constitutionally compelled transformation of the health system, there have
arguably been instances where they have had the unforeseen consequence
of frustrating or retarding this, even as they have vindicated the rights in
question.
With some hindsight, Sandra Liebenberg identified the following
contributions that socio-economic rights litigation may make to the
overarching pursuit of social justice: First, socio-economic rights litigation
may enhance participative democracy by allowing vulnerable and
marginalised individuals and groups to draw attention to, and demand
justification for the non-satisfaction of, their particular socio-economic
needs. Secondly, the litigation may, in appropriate circumstances, lead to
affirmative remedies in individual cases, resulting in the tangible
alleviation of the particular needs experienced by the individual litigants in
a particular matter – and, sometimes, by others similarly situated. Thirdly,
even though their immediate impact may be restricted to individualised
benefits conferred by a single judgment, consistently pursued litigation
around socio-economic rights may over time facilitate ‘non-reformist
reforms’ by setting in motion remedial frameworks or ‘trajectories of
change’ in terms of which it becomes possible to pursue more structural
and wide-reaching social reform. Finally, rights-based litigation may
enhance the profile of social issues and hence create a space for collective
mobilisation around both particular outcomes and more long-term,
structural reforms.5
In this chapter, I first consider the extent to which those judgments of
South African courts that have involved health-related constitutional
rights have indeed made these contributions, notwithstanding the courts'
reluctance to adopt a benefit-focused interpretative approach to the rights.
Section 3.2 below provides an overview of the health-related cases that
have been decided thus far, their reception by commentators and their
impact on both individual patients and the health system more generally.
In section 3.3, I assess their outcomes in light of Liebenberg’s framework,
with the aim of ascertaining whether they have lived up to the
constitutional promise of advancing the interests of individual patients
within a transformed health system. Thereafter, the focus shifts to the
impact of these judgments on the health system more broadly, with section
3.4 comparing and contrasting the disparate policy and bureaucratic
5
S Liebenberg ‘Rights, needs and transformation: Adjudicating social rights’ (2006) 17
Stellenbosch Law Review 5. This summary of Liebenberg’s argument was lifted from
Pieterse (n 1 above) 378. See also M Pieterse ‘Resuscitating socio-economic rights:
Constitutional entitlements to health care services’ (2006) 22 South African Journal on
Human Rights 473 477; LA Williams ‘Issues and challenges in addressing poverty and
legal rights: A comparative United States/South African analysis’ (2005) 21 South
African Journal on Human Rights 436 445-446.
62
Chapter 3
impact of certain of the judgments and trying to make sense of the manner
in which they have been received by internal and external political
environments. Finally, section 3.5 concludes the chapter by considering
ways in which future health-rights jurisprudence can at once be
individually more empowering and have a more consistently positive
impact on the ongoing transformation of the health system.
3.2 The health rights judgments and their aftermaths
3.2.1
Van Biljon v Minister of Correctional Services 66
The very first socio-economic rights case to be decided by a South African
court, Van Biljon involved a challenge against the Department of
Correctional Services’ failure to provide AZT, at that stage the most
widely-used anti-retroviral treatment for HIV/AIDS, to four HIV-positive
prisoners to whom the drug had been medically prescribed. At that time,
anti-retroviral medication was not yet generally available to patients in the
South African public health care system. The prisoners relied on section
35(2)(e) of the Constitution, which determines that detained persons have
a right to dignified conditions of detention, which includes the provision of
adequate medical treatment at state expense.
Much of the argument in the case turned on whether the claimed
treatment amounted to ‘adequate’ treatment in the circumstances, a
question which the Court answered not only by looking at whether the
treatment was medically appropriate and beneficial, but also at whether it
was cost-effective.7 The Court found that, given that AZT was at that stage
the most effective anti-AIDS medicine on the market, that prisoners are
unable to privately procure medical treatment and that they are
particularly vulnerable to opportunistic diseases, the treatment had to be
regarded as ‘adequate’ and was thus claimable under section 35(2)(e). Not
providing the drug to those applicants to whom it had been medically
prescribed thus infringed section 35(2)(e), as well as the common law
guarantee against unnecessary inroads on prisoners’ personal rights.8
The Court further dismissed an argument that budgetary constraints
generally absolved the state from treating HIV-positive prisoners, holding
that the state had failed to show that it could not afford to provide the
prescribed treatment to the applicants in the current case.9 The
6
7
8
9
1997 (4) SA 441 (C).
Paras 49, 52-54. For criticism of the Court’s import of questions of affordability into
the notion of adequacy, see M Pieterse ‘The potential of socio-economic rights
litigation for the achievement of social justice: Considering the example of access to
medical care in South African prisons’ (2006) 50 Journal of African Law 118 125-126
Paras 42-43, 52, 60.
Para 56, 60.
63
Department was thus ordered to provide the first and second applicants
with the prescribed treatment.10 However, since the Court was not
prepared to make an order guiding a medical decision to prescribe
medicine, it dismissed the similar application by the third and fourth
applicants, to whom AZT had not been medically prescribed, and
expressly limited the effect of the order to the first and second applicants.11
It is not known to what extent the Department of Correctional Services
complied with the Court’s order, though it is safe to assume that it did so,
especially given the order’s limited reach. The judgment may rightly be
lauded for showing that courts are able to make orders in socio-economic
rights cases that directly satisfy the material needs that triggered the
litigation in the first place.12 But its limited reach, to the extent that
similarly situated but unrepresented prisoners were unable to benefit from
the order, has necessarily stunted its impact on the policy environment
pertaining to health care provision in prisons, where anti-retroviral
treatment only became generally available several years later.13
3.2.2
14
Soobramoney v Minister of Health (KwaZulu-Natal) 14
One of the best known early decisions of the Constitutional Court,
Soobramoney provides a telling example of the chasm between the promise
held forth by the rights in the Bill of Rights and the harsh realities faced by
their beneficiaries. A chronically-ill patient in need of life-sustaining renal
dialysis brought a challenge against the resource-rationing policy of a state
hospital, according to which he did not qualify to receive the treatment.
Since demand for dialysis at the Addington Hospital far outstripped the
resources that were available for this purpose, hospital managers and
medical professionals devised treatment guidelines, according to which
only patients who could be cured by dialysis, or who were eligible for a
kidney transplant, could receive the treatment. Because he suffered from
several other illnesses, including ischaemic heart disease, Mr Soobramoney was accordingly denied dialysis.
The Durban High Court dismissed Mr Soobramoney's challenge
against the treatment guidelines – which was based on the right to life and
the right not to be refused emergency medical treatment – holding that his
right to receive dialysis was limited by the unavailability of required
10
11
12
13
14
Para 65.
Paras 33-37, 61, 65.
Pieterse (n 7 above) 126.
For related criticism of the judgment, see C Ngwena & R Cook ‘Rights concerning
health’ in D Brand & C Heyns (eds) Socio-economic rights in South Africa (2005) 107 134;
1998 (1) SA 765 (CC).
64
Chapter 3
resources and by the competing rights of other patients.15 This judgment
was then unsuccessfully appealed to the Constitutional Court.
Lamenting the state of the health care system, which was such that
poor people in Mr Soobramoney' s situation ended up effectively being
denied treatment because they could not afford to pay for it themselves,16
the Court nevertheless held that the rationing policy was consistent with
the right to have access to health care services in section 27(1)(a) of the
Constitution, which, in terms of section 27(2), had to be progressively
realised subject to the availability of resources.17 This was because the
treatment guidelines were rational, and were conceived and implemented
in good faith by authorities who the Court considered to be better qualified
and placed than itself to determine how the limited resources could
optimally be allocated and appropriated.18 The Court therefore dismissed
the appeal. Mr Soobramoney died soon after receiving news of the
judgment.
Various aspects of the Soobramoney judgment have, through the years,
been criticised in the academic literature. The Court has come under fire,
for instance, for its restrictive interpretation of the rights to life and not to
be refused emergency medical treatment,19 its limited engagement with the
ambit and scope of the right to have access to health care services,20 the
limited scrutiny to which it subjected the state's assertions of resource
15
16
17
18
19
20
The High Court judgment is reported as Soobramoney v Minister of Health (KwaZuluNatal) 1998 (1) SA 430 (D). See specifically 437A-D, 439E-440D.
Soobramoney (n 14 above) paras 8, 31 (per Chaskalson P for the majority); 40 (per
Madala J concurring separately).
The rights to life and not to be refused emergency medical treatment were held not to
be relevant to the matter – paras 17-21 (per Chaskalson P).
Paras 25, 29-30 (per Chaskalson P for the majority); 58 (per Sachs J concurring
separately).
See, for instance, D Brand ‘The proceduralisation of South African socio-economic
rights jurisprudence, or “what are socio-economic rights for?”’ in H Botha et al (eds)
Rights and democracy in a transformative constitution (2003) 33 47; S Liebenberg ‘South
Africa's evolving jurisprudence on socio-economic rights: An effective tool in
challenging poverty?’ (2002) 6 Law, Democracy & Development 159 165; 167; S
Liebenberg Socio-economic rights: Adjudication under a transformative constitution (2010)
137-139, 144; K McLean Constitutional deference, courts and socio-economic rights in South
Africa (2009) 124; Ngwena & Cook (n 13 above) 136-137; M Pieterse ‘A different shade
of red: Socio-economic dimensions of the right to life in South Africa’ (1999) 15 South
African Journal on Human Rights 372 381-383; M Pieterse ‘Enforcing the right not to be
refused emergency medical treatment: Towards appropriate relief ’ (2007)18
Stellenbosch Law Review 75 82-85; C Scott & P Alston ‘Adjudicating constitutional
priorities in a transnational context: A comment on Soobramoney’s legacy and
Grootboom’s promise’ (2000) 16 South African Journal on Human Rights 206 245, 247248.
See, for instance, Liebenberg (2010) (n 19 above) 139-142; McLean (n 19 above) 126;
F Michelman ‘The Constitution, social rights and reason: A tribute to Etienne
Mureinik’ (1998) 14 South African Journal on Human Rights 499 503-504; Scott & Alston
(n 19 above) 239; S Wilson & J Dugard ‘Constitutional jurisprudence: The first and
second waves’ in M Langford et al (eds) Socio-economic rights in South Africa: Symbols or
substance? (2014) 35 39.
65
scarcity;21 and the degree of deference shown to the formulators and
implementers of the rationing guidelines.22 Much of this criticism
appeared to boil down to frustration with the Court's seeming abdication
of responsibility for addressing the inequalities in access to care brought
about by an unequal distribution of resources in the health system. More
emotively, this abdication seemed to be clothed in defeatism, with the
Court appearing to imply that the constitutional right to have access to
health care services was powerless to address the unfairness inherent to the
health system's response to poor patients in need of unaffordable care. This
suggested that the optimism sparked by the Van Biljon judgment, that
constitutional rights could be used by poor and marginalised members of
society to demand that the health system respond to their individual needs,
might have been misplaced.
3.2.3
Minister of Health v Treatment Action Campaign (No 2) 2323
One of the best-known examples of the judicial vindication of socioeconomic rights in the world, the Treatment Action Campaign decision is
often heralded for showing that socio-economic rights can indeed make a
difference in the daily lives of their beneficiaries. But its fame arguably
relates just as much to the extremely volatile political climate within which
it was decided.
As briefly alluded to in chapter 1, for a period from the late-1990s
onwards, the conceptualisation and implementation of HIV and AIDS
treatment policy in South Africa was virtually paralysed by the wellpublicised AIDS-denialism by then-president Thabo Mbeki, whose
embrace of ‘dissident’ beliefs pertaining to the cause and treatment of
AIDS, which were accompanied by strong hostility to the use of ARV
treatment, were shared by the Health Minister at the time and significantly
influenced official HIV policy. ARV treatment for HIV and AIDS was
generally unavailable in the public health sector, mainly because the
Department of Health regarded it as unaffordable, but also because of
‘concerns’ about its safety and efficacy – concerns which related more to
dissident beliefs than to science. These ‘concerns’ even extended to the use
of ARVs as post-exposure prophylaxis (‘PEP’) and for prevention of
21
22
23
See, for instance, Liebenberg (2010) (n 19 above) 140; D Moellendorf ‘Reasoning
about resources: Soobramoney and the future of socio-economic rights claims’ (1998) 14
South African Journal on Human Rights 327 330-332; C Ngwena ‘The historical
development of the South African health-care system: From privilege to
egalitarianism’ (2004) 37 De Jure 290 309; Ngwena & Cook (n 13 above) 137; J Sarkin
‘Health’ (1997/8) 8 SA Human Rights Yearbook 97 101-103; Scott & Alston (n 19 above)
239, 241; F van Oosten ‘Financial resources and the patient’s right to health care:
Myth and reality’ (1999) 32 De Jure 1 17. This criticism is considered in more detail in
ch 4 below.
See, for instance, McLean (n 19 above) 126-127; M Pieterse ‘Health care rights,
resources and rationing’ (2007) 124 South African Law Journal 514 531-533. This
criticism is considered in more detail in ch 4 below.
2002 (5) SA 721 (CC).
66
Chapter 3
mother to child transmission ('PMTCT') of the virus. While there was
limited public sector access to both PEP and PMTCT, such access was
restricted to health facilities designated as 'research and training' sites, with
broader availability supposedly being contingent on the 'concerns' being
allayed.24
The Treatment Action Campaign (TAC) initiated litigation around the
government's refusal to extend the availability of the drug Nevirapine for
use in PMTCT beyond the designated sites. Armed with scientific
evidence on the safety, efficacy and appropriateness of the drug and with
the knowledge that lack of political will was the only significant hurdle to
its broader availability – given that Nevirapine was at the time being made
available to the state at no cost and that there was general capacity to
administer it at hospitals which offered HIV-testing and counselling
services – the TAC argued that the policy restricting the availability of the
drug was unreasonable,25 and that the state was accordingly in breach of
the obligation to take ‘reasonable legislative and other measures’ to
progressively realise the right to have access to health care services, in
terms of section 27(1)(a) read with section 27(2) of the Constitution.
The TAC’s legal campaign tied in with much visible mobilisation and
activism outside of the courtroom and enjoyed widespread public support.
It also resonated with health care practitioners at state hospitals – who
regarded the restrictions on the use of Nevirapine as being contrary to their
ethical obligations towards patients – and, importantly, with certain
(hitherto silenced) factions within the Department of Health.26 The matter
was also extensively covered in the national and international media,
which were virtually universally supportive of the TAC’s demands.
24
25
26
On the prevalence of AIDS-denialism in government at the time, its impact on health
policy and its consequences for the South African HIV epidemic, see H Coovadia et al
‘The health and health system of South Africa: Historical roots of current public health
challenges’ (2009) 374 The Lancet 817 831; L Forman ‘Ensuring reasonable health:
Health rights, the judiciary, and South African HIV/AIDS policy’ (2005) 33 Journal of
Law, Medicine & Ethics 711 717; N Geffen Debunking delusions: The inside story of the
Treatment Action Campaign (2010) 1-4, 193-196; M Heneke ‘An analysis of HIV-related
law in South Africa: Progressive in text, unproductive in practice’ (2009) 18
Transnational Law & Contemporary Problems 751 771-173; M Heywood ‘Preventing
mother-to-child HIV transmission in South Africa: Background, strategies and
outcomes of the Treatment Action Campaign case against the Minister of Health’
(2003) 19 South African Journal on Human Rights 278 282-285; N Nattrass The moral
economy of AIDS in South Africa (2004) 47-55; Pieterse (n 1 above) 367-368.
To reiterate, the Constitutional Court's test for determining government compliance
with obligations arising from socio-economic rights focuses on the reasonableness of
measures adopted in pursuit of the progressive realisation of the rights. In Government
of the RSA v Grootboom 2001 (1) SA 46 (CC) paras 39-44, the Court held that
reasonableness required of such measures to be balanced, coherent, flexible, inclusive,
transparent and capable of achieving the progressive realisation of the relevant rights,
both in their conception and in their implementation. Measures further had to pay
specific attention to the plight of the most vulnerable and desperate rights-beneficiaries
and had to cater for the satisfaction of urgent and pressing needs.
See Heywood (n 24 above) 303.
67
The TAC was victorious in the Pretoria High Court, which ordered the
state to make Nevirapine available for PMTCT where it was medically
indicated and where the capacity to administer it existed. It also required
the state to develop an ‘effective and comprehensive’ national plan on
PMTCT.27 Government appealed the decision to the Constitutional
Court, where the appeal was unanimously dismissed. The Court rejected
the government’s concerns about the safety and efficacy of Nevirapine as
being spurious and lacking in scientific basis,28 found that the policy
restricting the availability of the drug was unreasonable because of its
rigidity, inflexibility and adverse impact,29 and affirmed the powers of
courts in constitutional matters to make orders which impacted on
government policy.30 After carefully considering the impact of its
proposed order on the public health system, concluding that this would not
be significant except for insofar as it required the modification of policy31
and noting that extending the availability of the drug was patently within
the resource capacity of the State,32 the Court ordered the government to,
‘without delay’:
(a) Remove the restrictions that prevent nevirapine from being made
available for the purpose of reducing the risk of mother-to-child
transmission of HIV at public hospitals and clinics that are not research
and training sites.
(b) Permit and facilitate the use of nevirapine for the purpose of reducing the
risk of mother-to-child transmission of HIV and to make it available for
this purpose at hospitals and clinics when in the judgment of the
attending medical practitioner acting in consultation with the medical
superintendent of the facility concerned this is medically indicated,
which shall if necessary include that the mother concerned has been
appropriately tested and counselled.
(c) Make provision if necessary for counsellors based at public hospitals and
clinics other than the research and training sites to be trained for the
counselling necessary for the use of nevirapine to reduce the risk of
mother-to-child transmission of HIV.
(d) Take reasonable measures to extend the testing and counselling facilities
at hospitals and clinics throughout the public health sector to facilitate
and expedite the use of nevirapine for the purpose of reducing the risk of
mother-to-child transmission of HIV.33
27
28
29
30
31
32
33
The High Court judgment is reported as Treatment Action Campaign v Minister of Health
2002 (4) BCLR 356 (T).
Treatment Action Campaign (n 23 above) paras 58-64.
Paras 80-81, 95, 135.2(c).
Para 113. See ch 1 above at 1.4.
Paras 95, 115, 122.
Para 71.
Para 135.3.
68
Chapter 3
Notwithstanding the far-reaching terms of this order, however, the
Court was at pains to point out that it did not create a right to receive
Nevirapine on demand.34 This somewhat curious finding linked to the
Court’s rejection, earlier in the judgment, of a ‘minimum core’ approach
to the interpretation of the right to have access to health care services –
which would have implied an individual entitlement to receive such
‘minimum core’ health services – and its opting instead for an inquiry into
the reasonableness of the challenged policy.35 A great number of
commentators have loudly lamented the Court's stance in this regard,
arguing that the rejection of the notion of enforceable entitlement inherent
to a minimum core approach betrayed the promise of the constitutional
right of access to health care services and bemoaning the conceptual
emptiness and lack of accountability inherent to the Court's reasonableness
approach.36
Besides these criticisms of the Constitutional Court’s approach to the
interpretation of the right to have access to health care services, the
Treatment Action Campaign decision would have a significant impact on the
policy environment pertaining to access to anti-retroviral medication in the
public health care sector. As it became clear during the course of the
litigation that the outcome of the matter was all but inevitable, there were
significant shifts in government policy. At least two provincial health
departments extended the availability of Nevirapine in hospitals under
their jurisdiction, in contravention of directives from the Minister of
Health, leading the Court to conclude that ‘the state's policy has evolved
and is no longer as rigid as it was when the proceedings commenced’.37
The Minister, meanwhile, remained vociferous in her opposition to
broadening access to Nevirapine, going as far as to declare on national
television that she would not comply with a court order to do so. Amidst
the public outcry that followed, however, this statement was soon
retracted.38 Indeed, by the time the order was handed down, the state
34
35
36
37
38
Para 125.
Paras 31-35, 39.
See, for instance, D Bilchitz ‘Towards a reasonable approach to the minimum core:
Laying the foundation for future socio-economic rights jurisprudence’ (2003) 19 South
African Journal on Human Rights 1; D Bilchitz Poverty and fundamental rights: The
justification and enforcement of socio-economic rights (2007) 144-145, 155-157, 159-162;
Brand (n 19 above) 36-37, 46, 49-50, 55; P de Vos ‘So much to do, so little done: The
right of access to anti-retroviral drugs post-Grootboom’ (2003) 7 Law, Democracy &
Development 83 89, 90; Liebenberg (2001) (n 19 above) 176, 179, 187; Liebenberg
(2010) (n 19 above) 173-179; C Mbazira Litigating socio-economic rights in South Africa: A
choice between corrective and distributive justice (2009) 64-72; McLean (n 19 above) 187189; Pieterse (n 5 above) 486-488; M Pieterse ‘Eating socio-economic rights: The
usefulness of rights talk in alleviating social hardship revisited’ (2007) 29 Human Rights
Quarterly 796 810-813.
Treatment Action Campaign (n 23 above) para 118. For discussion of the provinces’
reaction during the course of the litigation, see Davis (n 4 above) 308; Heywood (n 24
above) 295, 303-304; A Kapczynski & JM Berger ‘The story of the TAC case: The
potential and limits of socio-economic rights litigation in South Africa’ in DR Hurwitz
et al (eds) Human rights advocacy stories (2009) 43 63.
See Heywood (n 24 above) 308-309.
69
appeared to be taking it in its stride, claiming that the order affirmed its
own approach to extending the availability of the drug and that
compliance therewith would not be problematic.39
But this was not entirely the case. While it was true that the order
appeared to enable and strengthen compliance efforts in those provinces
which had the prior political will as well as the capacity to broaden access
to Nevirapine,40 this was not the case in provinces where either the
capacity or the political will was absent. At least two provinces failed to
comply with the order, while national government was also initially slow
in fulfilling its responsibilities in terms thereof. The TAC had to file a
complaint with the South African Human Rights Commission, as well as
launch contempt of court proceedings, in order to spur greater compliance
by these respondents.41
In this context, the Constitutional Court has endured much criticism
for failing to confirm the supervisory order handed down by the High
Court, in terms of which compliance with the mandatory aspects of the
order could be monitored by the Court itself. While explicitly confirming
that to exercise supervisory jurisdiction would fall within the remedial
powers of courts to order appropriate relief for infringements of socioeconomic rights, the Constitutional Court felt that issuing such an order
was unnecessary in the current circumstances, as it had ‘no reason to
believe’ that government would not respect and execute the mandatory
order.42 In the light of the government’s highly publicised objections to
ARV-treatment and its public conduct during the course of the litigation,
commentators felt that this was unduly deferent and even irresponsible of
the Court, as was borne out by the state's subsequent tardiness in
compliance.43 While the TAC had the capacity to insist on compliance
with some of the immediate aspects of the order, it has been unable to
consistently insist on compliance with its more programmatic aspects.
This, it has been argued, has at least partly stunted the overall impact of the
decision.44
39
40
41
42
43
44
Heywood (n 24 above) 278; Kapczynski & Berger (n 37 above) 68.
M Heywood ‘Contempt or compliance? The TAC case after the Constitutional Court
judgment’ (2003) 4 ESR Review 7 9; Kapczynski & Berger (n 37 above) 71.
See Heywood (n 24 above) 314-315; Heywood (n 40 above) 9-10; Kapczynski & Berger
(n 37 above) 70-71; M Swart ‘Left out in the cold? Crafting constitutional remedies for
the poorest of the poor’ (2005) 21 South African Journal on Human Rights 215 223-224.
Treatment Action Campaign (n 23 above) para 129.
See Bilchitz (2003) (n 36 above) 23-24, 26; Bilchitz (2007) (n 36 above) 162-166;
Heywood (n 24 above) 312; Heywood (n 40 above) 11; Kapczynski & Berger (n 37
above) 67; K Roach & G Budlender ‘Mandatory relief and supervisory jurisdiction:
When is it appropriate, just and equitable?’ (2005) 112 South African Law Journal 325
333-334; Swart (n 41 above) 228.
See J Berger ‘Litigating for social justice in post-apartheid South Africa: A focus on
health and education’ in V Gauri & DM Brinks (eds) Courting social justice: Judicial
enforcement of social and economic rights in the developing world (2008) 38 71-73;
Kapczynski & Berger (n 37 above) 73-74.
70
Chapter 3
Yet there is no denial that this impact has been significant. While it has
certainly not solved all the problems pertaining to public-sector access to
PMTCT services,45 the judgment led to a definite increase in access to
Nevirapine by pregnant, HIV-positive women.46 Perhaps more
significantly, it broke a political deadlock which had long restricted access
to ARV treatment for AIDS in the public health sector.47 The Court's
unequivocal rejection of the state's arguments against extending the
availability of Nevirapine dealt a major blow to AIDS-dissidence within
government and has been credited with sparking a policy shift within the
Department of Health, towards an altogether more rational and sciencebased approach to HIV.48
Indeed, government itself has admitted that the judgment has
informed its thinking in relation to its obligations pertaining to the
treatment of HIV and AIDS.49
Related to this, the legal victory lent significant momentum to the
TAC’s broader campaign for universal public sector access to ARV
treatment. In addition to serving as a rallying point for advocacy and
mobilisation around this issue, the judgment provided a legal and
conceptual framework around which the campaign for universal access
could be structured, as well as substantive standards against which policy
responses to demands for treatment could be measured.50 This bore fruit ‒
the state announced a National Treatment Plan for HIV/AIDS, which
included universal access to ARV treatment, approximately one year after
the judgment.
3.2.4
Minister of Health v New Clicks South Africa (Pty) Ltd 5151
An excellent example of the manner in which constitutional rights provide
an entry point for arguments about the rights of the poor into legal disputes
which, despite impacting significantly on their interests, do not directly
45
46
47
48
49
50
51
It remains the case that only a fraction of women who require PMTCT services do, in
fact, access them. Kapczynski & Berger (n 37 above) 47, 71. See further S Woolman et
al ‘Why state policies that undermine HIV lay counsellors constitute retrogressive
measures that violate the right of access to health care for pregnant women and
infants’ (2009) 25 South African Journal on Human Rights 102 104-106.
Forman (n 24 above) 719; Heywood (n 24 above) 279; JA Singh et al ‘Do human rights
matter to health?’ (2007) 370 The Lancet 521 524.
Forman (n 24 above) 719.
Forman (n 24 above) 719. See also Kapczynski & Berger (n 37 above) 70; Pieterse (n 1
above) 384.
M Heywood ‘Shaping, making and breaking the law in the campaign for a national
AIDS treatment plan’ in P Jones & K Stokke (eds) Democratizing development: The
politics of socio-economic rights in South Africa (2005) 181 206; Kapczynski & Berger (n 37
above) 76.
Berger (n 44 above) 83; Forman (n 24 above) 719; Geffen (n 24 above) 61-69; Heywood
(n 49 above) 184; Kapczynski & Berger (n 37 above) 74-76; Ngwena (n 21 above) 305306; Pieterse (n 1 above) 384.
2006 (2) SA 311 (CC).
71
involve them,52 the New Clicks litigation grew out of opposition in the
private health care sector to state attempts to rein in its virtually
unregulated activities. A brief background to this opposition follows.
Shortly after the coming into operation of the 1996 Constitution, the
state signalled its intentions to make medicines more affordable by means
of regulation, by passing the Medicines and Related Substances Control
Amendment Act 90 of 1997. The Act awarded significant scope to the
Minister of Health to regulate various aspects of the manufacturing,
wholesale and retail of pharmaceutical products, in order to make
medicines more accessible and affordable. At the time, the Act drew
opposition from the international pharmaceutical industry, for potentially
allowing the limitation of their intellectual property rights under
international trade law. Litigation was initiated, but ultimately abandoned
in the face of strong rights-based counterarguments advanced by both
government and the TAC.53
Years later, the Minister of Health promulgated regulations in terms of
one of the provisions of the Amendment Act,54 which prescribed a
maximum dispensing fee that pharmacies could add to the manufacturing
exit price of prescribed medicines, hence capping their retail profits.
Predictably, the local pharmaceutical retail sector was up in arms and, led
by the ‘New Clicks’ group of retail pharmacies, mounted a slew of
administrative-law and constitutional challenges against the regulations.
These were dismissed by the Cape High Court55 but then upheld by the
Supreme Court of Appeal,56 before finally being appealed to the
Constitutional Court.
At this point, the TAC entered the matter as amicus curiae. While it
expressed support for the capping of pharmaceutical profit margins in the
interest of making medicines more affordable, the TAC placed evidence
before the Court, which showed that the manner in which the regulations
arrived at the prescribed dispensing fee would likely have the unintended
consequence of driving rural and courier pharmacies, which served a
particularly vulnerable group of patients who had limited access to other
pharmacies, out of business. In advancing this argument, the TAC has
52
53
54
55
56
M Heywood ‘Debunking conglomo-talk: A case study of the amicus curiae as an
instrument for advocacy, investigation and mobilisation’ (2001) 5 Law, Democracy &
Development 133 147; Pieterse (n 1 above) 379.
On the issues raised and the outcome of this litigation (in the matter of Pharmaceutical
Manufacturers Association v President of the RSA TPD 4183/98), see Heywood (n 52
above) 133-162; Pieterse (n 1 above) 372 and authorities there cited.
Regulations Relating to a Transparent Pricing System for Medicines and Scheduled Substances
GN R553 GG 26304 (30 April 2004), promulgated pursuant to sec 22G of the
Medicines and Related Substances Control Amendment Act.
Judgment reported as New Clicks South Africa v Tshabalala-Msimang; Pharmaceutical
Society of South Africa v Tshabalala-Msimang 2005 (2) SA 530 (C).
Judgment reported as Pharmaceutical Society of South Africa v Tshabalala-Msimang; New
Clicks South Africa v Tshabalala-Msimang 2005 (3) SA 238 (SCA).
72
Chapter 3
rightly been credited for turning an essentially administrative-law matter
focused on the commercial interests of pharmacies into one about access
to medicines by vulnerable patients.57
The TAC’s arguments held sway in the Constitutional Court. In a
voluminous and complex judgment containing several differing opinions,
the majority of the Court found that, while price-control measures in the
pharmaceutical sector were both constitutionally legitimate and necessary,
and while the bulk of the regulations accordingly passed constitutional
muster, the dispensing fee prescribed by the regulations was unreasonable,
inappropriate and, accordingly, unconstitutional.58 For most of the Court,
this was mainly because the rigid and inflexible manner in which the
dispensing fee was determined failed to take account of the specific
circumstances of rural and courier pharmacies and of the patients that they
served. The result was that, much as the regulations aimed to make
medicines more affordable, they threatened to compromise access to
health care services by rendering medicines unavailable to patients served
by rural and courier pharmacies.59 The specific regulations containing the
dispensing fee were accordingly declared unconstitutional and invalid, and
were remitted to the relevant pricing committee for reconsideration in the
light of the judgment.60 A number of other regulations also required
limited amendments in order to be constitutional, and the Minister was
further ordered to republish the regulations after such amendments had
been affected.61
These findings of unconstitutionality aside, however, the Court was at
pains to point out that the regulations were aimed at fulfilling the state’s
constitutional obligation to progressively realise the right of access to
health care services and that, as such, they were generally constitutionally
permissible.62 As I have argued elsewhere, the judgment thus implied that,
as long as the state could modify the regulations so as to cure them of the
constitutional defects pointed out by the Court, such modified regulations
would withstand constitutional scrutiny.63 Accordingly, the general
feeling subsequent to the judgment was that, while the pharmacies had
won the battle around price setting, it was the state which had won the war.
57
58
59
60
61
62
63
See Pieterse (n 1 above) 379.
New Clicks (n 51 above) paras: 7 (per the Court); 404 (per Chaskalson CJ); 527 (per
Ngcobo J); 654-655, 666 (per Sachs J); 676 (per Moseneke J). A small number of
further regulations were set aside for various reasons, including that they were overly
vague, fell short of the standards set by the Promotion of Administrative Justice Act 3
of 2000 and were unreasonable.
New Clicks (n 51 above) paras: 19 (per the Court); 404 (per Chaskalson CJ); 526-527;
557-563 (per Ngcobo J); 654-655 (per Sachs J); 714, 772, 781 (per Moseneke J).
Para 22(f) (per the Court).
Para 22(i) (per the Court).
Paras: 1, 16 (per the Court); 32 (per Chaskalson CJ); 437, 514-517 (per Ngcobo J); 650651 (per Sachs J); 704-706 (per Moseneke J).
M Pieterse ‘The legitimizing/insulating effect of socio-economic rights’ (2007) 22
Canadian Journal of Law & Society 1 14.
73
Yet, the judgment seemingly had the effect of derailing the state's
efforts in this regard. It appeared at once to unnerve the Department of
Health and to energise private pharmacies in their opposition against any
form of regulation of their activities. It took more than a year for the
Department to announce a revised dispensing fee. Immediately upon this
announcement, a group of pharmacist associations instituted legal
proceedings, arguing once again that the fee was inappropriate and
unreasonable. Seemingly fearing repetition of the New Clicks saga, the
Department undertook not to implement the fee, pending further
negotiation with the industry.64 A (once again) revised fee was finally
announced in 2010, some 6 years after the initial publication of the
Regulations. Its introduction has led to a visible drop in the retail price for
most medicines.65
3.2.5
N v Government of the Republic of South Africa 6666
Given the limited reach of the order in Van Biljon, it did not make a
perceivable impact on policies pertaining to access to anti-retroviral
medication in prisons. Moreover, the kind of mandatory order handed
down in Van Biljon appeared to be out of line with the Constitutional
Court's subsequent decisions in Soobramoney and Treatment Action
Campaign, both of which suggested that the socio-economic rights in the
Bill of Rights were directives aimed at ensuring that state policies prioritise
equal access to health care services, rather than guarantees to be used by
individuals to obtain immediate access to specific forms of treatment for
themselves.67 But all of these decisions, together with a number of others,
indirectly coloured the broader policy environment pertaining to health
care delivery in prisons, in a manner that paved the way for litigation in
N v Government of the Republic of South Africa.
After Van Biljon, a number of High Court decisions referred to section
35(2)(e) of the Constitution in overturning refusals by prison authorities to
grant medical parole to terminally-ill prisoners, partly because the
Department of Correctional Services lacked the resources to provide the
palliative care that the prisoners required.68 The effect of these decisions,
when read with Van Biljon, was that a remedial framework had been
constructed, in terms of which prisoners who had been prescribed medical
treatment for terminal, or comparably serious, illnesses or conditions,
64
65
66
67
68
See Berger (n 44 above) 60, 79; A Hassim et al (eds) Health & Democracy (2007) 457.
DE McIntyre et al ‘Health care financing and expenditure: Post-1994 progress and
remaining challenges’ in HCJ van Rensburg (ed) Health and health care in South Africa
(2ed 2012) 433 458. For detail on the fee structure, see N Majoe 'Health and welfare' in
J Kane-Berman (ed) South Africa Survey 2009-2010 (2010) 467 467-68.
2006 (6) SA 543 (D) (No 1); 2006 (6) SA 568 (D) (No 2); 2006 (6) SA 575 (D) (No 3).
Berger (n 44 above) 81-82.
See Stanfield v Minister of Correctional Services 2004 (4) SA 43 (C); Du Plooy v Minister of
Correctional Services [2004] 3 All SA 613 (T). In the related context of bail applications,
see further S v Mpofana 1998 (1) SACR 40 (Tk); S v Vanqa 2000 (2) SACR 37 (Tk).
74
Chapter 3
could claim either to be provided with the prescribed treatment at state
expense, or could challenge the legitimacy of their continued detention.69
In the context of HIV/AIDS, this argument was raised before the
Constitutional Court in Mnguni v Minister of Correctional Services,70 where a
prisoner with full-blown AIDS, who was denied access to anti-retroviral
treatment due to resource scarcity, applied for direct access to the
Constitutional Court, to challenge the refusal of his request for medical
parole. While the application was dismissed on procedural grounds,71 it
illustrated that an affirmative remedial framework for section 35(2)(e) of
the Constitution was in place. Subsequently, the High Court has, on at
least one occasion, overturned a refusal of medical parole to a terminally
ill AIDS-patient who was not receiving ARV treatment.72
Meanwhile, in the aftermath of the Treatment Action Campaign
decision, a National Treatment Plan for HIV/AIDS, in terms of which
prisoners were entitled to receive anti-retroviral treatment, had been
proclaimed. However, implementation of the plan by the Department of
Correctional Services was lacking. The TAC and Aids Law Project
accordingly took legal action, on behalf of a group of prisoners at Durban's
Westville Prison who were unable to access treatment at the prison, despite
qualifying for it in terms of the Plan.
The Durban High Court held that the lack of access to anti-retroviral
medication at Westville Prison fell foul of the Department of Correctional
Services' obligations under sections 27 and 35(2)(e) of the Constitution,
read together with the provisions of the National Treatment Plan. The
Court found that the Department's implementation of the Plan was
unreasonable because it was inflexible, characterised by ‘unjustified and
unexplained delay’ and, in places, irrational.73 The Department was
accordingly ordered to provide the applicants, as well as all similarly
situated prisoners at Westville prison, with immediate access to the
required treatment at an accredited public health facility. The Court further
issued a structural interdict, in terms of which the Department had to lodge
an affidavit with the applicants' attorneys within a set timeframe, in which
69
70
71
72
73
Liebenberg (2010) (n 19 above) 266-267; Pieterse (n 7 above) 123-127.
2005 (12) BCLR 1187 (CC).
It held that the applicant could not establish that there were exceptional circumstances
that justified the Constitutional Court hearing the matter as court of first and final
instance. However, the Court ordered that the Limpopo Law Society had to be alerted
to the claim and had to render appropriate legal assistance, which could include
litigation in the correct forum, to the applicant, paras 6-7. For discussion of the
judgment, see Pieterse (n 7 above) 128; C van Wyk ‘The impact of HIV/AIDS on bail,
medical sentencing and medical parole in South Africa’ (2008) 23 SA Public Law 50 61.
Mazibuko v Minister of Correctional Services [2007] JOL 18957 (T), discussed by Van Wyk
(n 71 above) 61-62.
N (No 1) (n 66 above) para 30.
75
it had to set out the manner in which it would comply with the order. The
Court also retained jurisdiction over the matter.74
Not only did the N decision illustrate the power of the remedial
framework structured by those loosely related decisions on access to health
care in prisons that came before it,75 it also showed that, notwithstanding
the findings in Soobramoney and Treatment Action Campaign, it will
sometimes be appropriate for a Court to order the direct provision of
specific forms of medical treatment to individual persons.76
However, implementation of the order in N proved problematic. The
state obtained leave to appeal the judgment, upon which the applicants
applied to the Court for an order forcing the state to implement the original
order pending the appeal. This was granted, again including a structural
component.77 However, this order was not complied with and the interim
execution order was, in turn, appealed. The applicants again approached
the Court, which dismissed the state's application for leave to appeal the
interim execution order, noted that the state's non-compliance with this
order was in contempt of court and signified a ‘grave constitutional crisis’
and ‘serious threat’ to the separation of powers, and issued a further
deadline for implementation of the original order.78 This was complied
with and the appeal against the main judgment was not pursued further.
Subsequently, the Department engaged with the applicants on the broader
implementation of the National Treatment Plan in prisons.79
While the state’s initial non-compliance with N is indeed very
concerning, it has to be noted that the terms of the structural interdict and
the accompanying supervisory jurisdiction enabled the applicants to
maintain the momentum of their victory and to follow up on compliance
with the order. As such, the N saga illustrates the power of structural relief
in socio-economic rights cases.80
3.2.6
Law Society of South Africa v Minister for Transport 8181
The Law Society case is interesting because, even though a large part of the
judgment (and indeed, the only part of the claim that succeeded) relates
directly to access to health care services within the private and public
74
75
76
77
78
79
80
81
Para 35. For discussion, see Liebenberg (2010) (n 19 above) 263-264; L Muntingh &
C Mbazira ‘Prisoners’ right of access to anti-retroviral treatment: Case review’ (2006) 7
ESR Review 14.
Berger (n 44 above) 82-83.
N (No 2) (n 66 above).
N (No 3) (n 66 above) paras 29, 32-33, 45-46.
Liebenberg (2010) (n 19 above) 432-433. For further discussion of the implementation
saga, see Hassim et al (n 64 above) 298-299; A Hassim & J Berger ‘Case review:
Prisoners’ right of access to anti-retroviral treatment’ (2006) 7 ESR Review 18.
See Berger (n 44 above) 77-78, 83; Pieterse (n 1 above) 383.
2011 (2) BCLR 150 (CC).
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health sectors respectively, the matter arose in a different regulatory
context altogether – the reform of the South African third party
compensation system for victims of motor vehicle accidents, which has for
many years been litigious terrain.
Specifically, the case concerns opposition to amendments affected to
the Road Accidents Fund Act 56 of 1996 and regulations proclaimed in
terms thereof, according to which limits were introduced to the claims
available to victims of road accidents. In particular, the amendments
excluded victims' common law claims against wrongdoers for losses that
were not compensable under the Act and limited the amount of
compensation payable for loss of income or support, while the regulations
prescribed tariffs for health services to be provided to accident victims, by
public health facilities. The Law Society of South Africa, together with the
South African Association of Personal Injury Lawyers, QuadPara
Association of South Africa (an organisation promoting the interest of
quadriplegic and paraplegic persons) and the National Council for Persons
with Physical Disabilities mounted an array of constitutional challenges
against these provisions. Only one of these, based on the right of access to
health care services, succeeded.
The access to health care challenge pertained to one of the
regulations,82 which limited the financial liability of the Road Accidents
Fund in relation to medical treatment for injuries sustained in the course
of motor vehicle accidents, to an amount 'determined in accordance with
the Uniform Patient Fee Schedule for fees payable to public health
establishments by full-paying patients, prescribed under … the National
Health Act'. While this tariff would be sufficient to cover health care
services received in the public health sector, it would not afford private
sector care. This meant that survivors of motor vehicle accidents, who
were not themselves able to pay for private medical treatment, would have
to be treated for their injuries in the public sector.
The Constitutional Court held that this was constitutionally
problematic in relation to those persons who become quadriplegic or
paraplegic as a result of motor vehicle accidents. This was because the
evidence showed that the public health sector was not able to adequately
provide the life-long, specialised care and rehabilitation required by
quadriplegics and paraplegics. Because of this, quadriplegics and
paraplegics would be ‘constantly at risk in a state hospital as a result of the
chronic lack of resources, paucity of staff and inexperience in dealing with
spinal cord injuries’83 and hence faced a ‘material risk of untimely death
due to untreated complications’.84 The Court thus held that the prescribed
tariff unjustifiably infringed the right of access to health care services, in
82
83
84
Regulation 5(1) of 21 July 2008, issued under sec 17(4B)(a) of the Act.
Law Society (n 81 above) para 94. See also paras 91-98.
Para 94.
77
that it was unreasonable for failing to cater for the health needs of
quadriplegics and paraplegics. It was accordingly declared
unconstitutional.85
The Law Society judgment in effect creates an entitlement for
quadriplegic and paraplegic victims of motor vehicle accidents to receive
care in the private health sector, or at least to receive public health care that
is of a quality comparable to that in the private sector. As such, it is
arguably the strongest affirmation of an individual, health-related
entitlement to come from the socio-economic rights jurisprudence of the
Constitutional Court.
Over and above the costs associated with complying with the order, it
is perhaps still too early to gauge the effects of the judgment on the South
African health policy terrain. But, in a highly charged political
environment, where the state and the private health sector are currently at
loggerheads over plans to address the inequities inherent to the current
two-tier health system, by way of introducing National Health Insurance,
its impact may well be profound. At the very least, the judgment appears
to restrict government's regulatory scope. It indicates that it will likely be
unconstitutional for measures aimed at establishing equitable access to
health care services to scale back on the extent of existing access to private
health care, unless the public health sector is able to provide all required
services of comparable quality. This happens to coincide with the main
argument currently being advanced by interest groups within the private
health sector, against the introduction of National Health Insurance.86
3.2.7
Lee v Minister of Correctional Services 8787
While not itself directly invoking a health-related right against the state,
the Lee case foreshadows the potential indirect impact of such rights,
through their influence over the manner in which courts apply the
common law in accordance with the ‘spirit, purport and objects’ of the Bill
of Rights, on the operation of the health system.
Mr Lee sued the Department of Correctional Services for a significant
amount of damages, after he was infected with tuberculosis (TB) while in
prison. It transpired that health protection and infection control measures
in the prison where he was being detained were almost non-existent. The
SCA and, subsequently, the Constitutional Court, found that this was in
contravention of the constitutional and statutory obligations of the state, as
derived respectively from the right to receive adequate health services, as
part of the right to dignified conditions of detention in section 35(2)(e) of
85
86
87
Paras 100, 108.
See S van der Berg et al Financial implications of a National Health Insurance Plan for South
Africa: Study commissioned by the Hospital Association of South Africa (2010) 135.
2013 (2) SA 144 (CC).
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the Constitution, and from section 12(1) of the Correctional Services Act
111 of 1998 – which obliges the Department to provide prisoners with
health services that are adequate to enable them to lead healthy lives.88
The prison authorities’ failure to take appropriate measures to protect
inmates from TB infection was accordingly held to be wrongful. Both
courts also found that this was negligent, and that a claim for damages
ought to be recognised to vindicate prisoners’ rights in this regard.89
In relation to the legal requirement of causation, the SCA felt that it
could not be proven that Mr Lee would not have contracted TB even if
appropriate disease control measures had indeed been in place and that it
was therefore not certain that he was, in fact, infected as a result of the
Department's wrongful negligent conduct rather than simply through
circumstance. However, the majority of the Constitutional Court
overturned this finding, as it regarded the ‘probable factual causation’
occasioned by the Department’s negligent omission to have reasonable
infection control measures in place as sufficient to found causation.90 The
claim thus succeeded on appeal.
The Lee case points towards the routine violations of various aspects of
the right to health in a prisons context and raises the possibility of state
responsibility for other negative health consequences of constitutionally
unacceptable prison conditions. For instance, Annelize Nienaber raises
the possibility of the state being held liable, in light of the judgment, for
HIV transmission in prisons, where such transmission can be related to, for
instance, prison overcrowding, failure to provide condoms in prison and
failure to protect prisoners from sexual assault.91 But over and above the
prison context, the judgment raises, in very real terms, the possibility of
state liability for the individual consequences of health system failures. The
courts' recognition that such claims for damages are valid in principle and
their location of wrongfulness in the non-fulfilment of a constitutional
obligation in this context have potentially far-reaching consequences for
the Department of Health, not only in relation to health protection, but
also in relation to poor health outcomes associated with the standard of
care in the public health sector.
In this sense, then, the Lee judgment points to a thus far unexplored
avenue of individual relief for breaches of the constitutional embodiment
of the right to health, which may significantly enhance accountability of
the system for the consequences of its failures.
88
89
90
91
Minister of Correctional Services v Lee 2012 (3) SA 617 (SCA) paras 36, 38; Lee (CC) (n 87
above) para 59.
Lee (CC) (n 87 above) para 65; Lee (SCA) (n 88 above) paras 42, 44.
Lee (CC) (n 87 above) paras 42-71, overturning Lee (SCA) (n 88 above) paras 45-64.
A Nienaber ‘Liability for the wrongful transmission of communicable diseases in
South African prisons: What about HIV?’ (2013) 28 SA Public Law 163.
79
3.3 The impact of the health rights judgments on
individual and collective struggles for access to
health care services 9292
In this subsection, I reflect upon the extent to which reliance on healthrelated constitutional rights have impacted, first, on the lives of the
individual beneficiaries of the rights and, secondly, on the activities of the
organisations and movements that represent their collective concerns. In
doing so, I mimic the structure of Sandra Liebenberg’s assessment of the
transformative potential of socio-economic rights, to which I alluded in the
introductory section.
First, the jurisprudence discussed above appears to bear out
Liebenberg’s assertion that socio-economic rights litigation amplifies the
voice of rights-beneficiaries in struggles over their access to basic amenities
and empowers them, as well as the movements that represent them, to
engage the state, or other powerful entities, on equal footing. Thereby,
justiciable rights enable people to insist that due attention be paid to their
needs and to hold the state accountable for the way in which it carries out
its obligations to fulfil these needs.93 To the extent that these demands by
the poor are muted, sidelined or ignored by mainstream political processes,
socio-economic rights litigation thus has the potential to enhance state
accountability and participatory democracy.94
As illustrated by the New-Clicks case, justiciable socio-economic rights
also allow for the amplification of the voice of the poor in litigation that
does not directly involve them. On the face of it, New Clicks was a technical
dispute between Government and the pharmaceutical industry. However,
its outcome clearly had manifest implications for the ability of poor South
Africans to access affordable medicines. Because of the presence of a
justiciable right to have access to health services in the Constitution, the
TAC could interject in the matter and mandate consideration of the poor’s
interests in accessing affordable medicines, hence contributing to a
judgment that safeguarded those interests.95 Another example of this is the
92
93
94
95
This subsection is a substantially revised version of Pieterse (n 1 above) 379-386.
It appears, from various statements in Mazibuko v City of Johannesburg 2010 (4) SA 1
(CC), as well as from its recent housing jurisprudence, that the Constitutional Court
considers this accountability-enhancing feature of socio-economic rights litigation as
being its primary function. See Mazibuko (ibid) at paras 159-165; also B Ray
‘Proceduralisation's triumph and engagement's promise in socio-economic rights
litigation’ (2011) 27 South African Journal on Human Rights 107 107-108.
Liebenberg (n 5 above) 7-8, 20, 36. See also R Ballard ‘Social movements in postApartheid South Africa: An introduction’ in Jones & Stokke (eds) (n 49 above) 77 88;
D Davis ‘Socio-economic rights in South Africa: The record of the Constitutional
Court after ten years’ (2004) 5 ESR Review 3 7; Pieterse (n 7 above) 129; Ray (n 93
above) 114.
This was also the case in the settled PMA litigation. See n 53 above, also Heywood (n
52 above) 147.
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recent CIPLA Medpro (Pty) Ltd v Aventis Pharma, SA, where the TAC
interjected in a medicines patent dispute between pharmaceutical
manufacturers, to argue against the enforcement of a patent that was soon
to expire. While not giving effect to this argument, the SCA acknowledged
that the right to have access to health care services requires of courts to
have regard to the public interest in accessing affordable medicines, over
and above the competing interests of the litigating parties, in matters of this
nature.96
Over and above this indirect bolstering of their interests, however, Siri
Gloppen has argued that the participatory potential of socio-economic
rights depends largely on the willingness and ability of the poor to voice
their needs in court, and on the responsiveness of the judiciary to their
claims.97 In South Africa, the poor’s willingness and ability to use the legal
process themselves in attempting to vindicate their rights is negatively
impacted by lack of rights-awareness, lack of access to legal advice,
practical barriers to access to justice (such as time, distance and language),
distrust of the legal system, scepticism over the chances of succeeding with
rights-claims and the high costs of litigation.98
The effect of these structural barriers to justice is exacerbated by
procedural features of the legal system that limit access to courts. For
instance, there has been significant criticism of the Constitutional Court’s
reluctance to grant direct access to litigants in socio-economic rights
matters, due to the Court’s preference, for various reasons, for such matters
to reach it by way of referral or appeal from the High Courts. Since poor
litigants will often be deterred by the prospect of a lengthy and costly
process, involving multiple court hearings and appeals, this practice clearly
contributes to muting their voice.99
Once litigants manage to access a court, the manner in which it hears
and decides their claim may also stifle the participatory potential of socioeconomic rights. Stuart Wilson and Jackie Dugard have for instance
convincingly shown that in recent (albeit non-health-related) socioeconomic rights judgments, notably that of Mazibuko v City of Johannesburg,
the Constitutional Court has practically ignored evidence of the lived
experiences of claimants in deciding their matters, and has chosen instead
96
97
98
99
CIPLA Medpro (Pty) Ltd v Aventis Pharma, SA (2013) 4 SA 579 (SCA) para 46.
S Gloppen ‘Social rights litigation as transformation: South African perspectives’ in
Jones & Stokke (eds) (n 49 above) 153 158-160.
Gloppen (n 97 above) 158.
J Dugard ‘Court of first instance? Towards a pro-poor jurisdiction for the South
African Constitutional Court’ (2006) 22 South African Journal on Human Rights 261 272281; J Dugard & T Roux ‘The record of the South African Constitutional Court in
providing an institutional voice for the poor: 1995-2004’ in R Gargarella et al (eds)
Courts and social transformation in new democracies: An institutional voice for the poor? (2006)
107 111-113. This is illustrated by the Mnguni case (n 70 above), where the applicant
was denied direct access to the Constitutional Court, and was instead referred to a
provincial Law Society and not heard from again.
81
to focus on the features of the policies that they are challenging, as well as
on the intentions, objectives and hurdles faced by those who devise and
implement these policies.100 This calls to mind earlier criticism that the
Court’s focus on the reasonableness of measures aimed at giving
progressive effect to socio-economic rights removes the focus of the
litigation from the needs and experiences of the poor and thereby muffles
their voice,101 not least by effectively relegating them back to the very
democratic processes whose failure sparked their resort to the legal process
in the first place.102
As such, it is conceivable that the substantive features of the
Constitutional Court’s health rights jurisprudence will discourage poor
people from resorting to litigation in an effort to assert their voice. In this
respect, commentators point, first, to the onerous evidentiary burden
implied by the Constitutional Court's reasonableness approach, which
requires claimants to show the unreasonableness of a great array of
budgetary- and policy processes involving complex and specialist
information.103 Secondly, the message sent by, for instance, the Court’s
dismissal of the Soobramoney claim – where it found that individual claims
for access to medical treatment could not be upheld in the face of a legion
of competing claims by others – and its insistence in Treatment Action
Campaign that its finding did not mean that individuals could demand
immediate access to services, is that, even where this evidentiary burden is
met, claims for individual relief in socio-economic rights matters are
unlikely to succeed. Viewed together, it is tempting to conclude that it will
simply seldom be worthwhile for the poor to resort to litigation in an effort
to secure access to basic services.104
Flowing from this, the Court's averseness to the notion of individual,
directly claimable, relief in socio-economic rights matters obviously also
significantly restricts the extent to which reliance on health-related rights
in litigation can, in the short term, demonstrably alleviate the particular
needs of individual claimants and of others who are similarly situated. As
Gloppen has argued, socio-economic rights litigation will only be able to
do this if judges are both legally empowered (as South African judges are)
and willing (as they are not) to respond directly and affirmatively to social
rights claims and if, in addition, they display significant remedial flexibility
100 S Wilson & J Dugard ‘Taking poverty seriously: The South African Constitutional
Court and socio-economic rights’ (2011) 22 Stellenbosch Law Review 664 665-670. See
also Wilson & Dugard (n 20 above) 57-58.
101 On the sidelining of need in terms of the reasonableness approach see, for instance,
Bilchitz (2007) (n 30 above) 160; Brand (n 19 above) 36-37, 49, 55.
102 Wilson & Dugard (n 100 above) 665, 670; Wilson & Dugard (n 20 above) 57-58.
103 See S Liebenberg ‘The value of human dignity in interpreting socio-economic rights’
(2005) 21 South African Journal on Human Rights 1 22-23.
104 See also Dugard & Roux (n 99 above) 113, 118-119; Forman (n 24 above) 715;
Gloppen (n 97 above) 169; Heywood (n 24 above) 300; Liebenberg (2001) (n 19 above)
176; Pieterse (n 5 above) 490; Wilson & Dugard (n 20 above) 44.
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and creativity. Judicial remedies will further be of little significance if
compliance with their terms cannot be ensured.105
But, this notwithstanding, it would be wrong to assert that the
judgments that have upheld health-related rights thus far have not tangibly
impacted on individual lives. As alluded to above, the Treatment Action
Campaign decision may directly be credited for a significant, actual
increase in individual access to Nevirapine by pregnant, HIV-positive
women across the country. The same can be said, for instance, of the Van
Biljon and N judgments, in relation to access to anti-retroviral drugs by
individual prisoners. Moreover, by declaring unconstitutional
amendments to legislation that would deprive paraplegic and quadriplegic
motor accident survivors of private health services to which they had been
entitled under the previous iteration of the legislation, the Law Society
judgment affirms conventional wisdom that rights are capable of providing
strong, individual protection against the scaling back of existing legal
entitlements to particular goods or services.106
In addition, Liebenberg’s assertion that the impact of individual socioeconomic rights victories may extend beyond their immediate benefit for
successful litigants, to also influence social and political processes which
will then, as a result, produce both individual and more systemic socioeconomic gains over time,107 appears to be borne out by the health-rights
judgments discussed above. Specifically, Treatment Action Campaign is a
sterling example of this. Apart from its resulting affirmative individual
benefits, the political impact of the judgment was immense, especially
given the context in which the litigation was waged. The judgment’s
characterisation of the State’s PMTCT policy as ‘unreasonable’ and its
accompanying rejection, on the bases of science and rationality, of the
government’s dissidence-infused ‘concerns’ over the safety and efficacy of
Nevirapine, had the effect of reconfiguring the policy arena around HIV
and AIDS in South Africa, resulting in a policy shift towards treatmentbased solutions. The TAC’s political victory over the government further
significantly strengthened the movement in its broader political struggle for
universal access to ARV treatment in the public sector, with the result that
105 Gloppen (n 97 above) 161-163. On the need for more robust remedies in socioeconomic rights cases and related institutional issues, see further Liebenberg (n 5
above) 33-34; Roach & Budlender (n 43 above); Swart (n 41 above).
106 On the remedial potential of such 'negative' rights enforcement see, for instance, DM
Chirwa ‘The right to health in international law: Its implications for the obligations of
state and non-state actors in ensuring access to essential medicine' (2003) 19 South
African Journal on Human Rights 541 559, 564; De Vos (n 36 above) 88-89; Liebenberg
(2001) (n 19 above) 163, 178; Liebenberg (2010) (n 19 above) 214-218; Pieterse (n 5
above) 494-495. This is however not uncontroversial, especially when it comes to the
redistribution of resources – see ch 4 below as well as S Liebenberg 'Grootboom and the
seduction of the negative/positive duties dichotomy' (2011) 26 SA Public Law 37.
107 Liebenberg (n 5 above) 10, 30-31. See also Pieterse (2006) (n 19 above) 477.
83
it was able to pressure government into accelerating the formulation and
implementation of a universal roll-out plan.108
It is also illustrative to note the manner in which, in the prison context,
the Treatment Action Campaign judgment interacted with Van Biljon and
with a range of seemingly unrelated medical parole decisions, to structure
a remedial framework that facilitated and bolstered activism around access
to anti-retroviral medication in prisons, culminating in the legal victory in
N. Implementation problems aside, this victory had widespread positive
effects for HIV-positive, detained persons.109
Even when their full transformative impact is not always immediately
apparent, it is therefore clear that legal victories may through time
contribute to more wide-reaching social reforms. Judgments vindicating
different aspects of socio-economic rights interact and feed off each other
through time, hence assisting in more structural and wide-ranging
transformation through ‘non-reformist reforms’.110 While the broader
transformative impact of socio-economic rights litigation in this respect
will clearly be most significant where the litigation ties into sustained,
overarching social campaigns, it remains that non-aligned and more
restricted rights-victories may assist in the development of affirmative
remedial frameworks that may significantly bolster or enable such
campaigns.
As such, the above discussion also attests to the usefulness of rightsbased litigation as an ‘organizing point’ for continued activism around
broader reforms. The TAC’s significant impact on the health policy
environment, which shapes the poor’s access to medicine, has been
attributed not only to the popularity, urgency and profile of its cause, but
also to its ability to combine popular mobilisation with legal strategies.111
The movement has been able to raise the profile of the poor’s plight in
relation to access to anti-AIDS medications, both through mobilising
around existing litigation in order to gain widespread credibility and
support for its arguments, and through using its legal victories as a basis for
sustained activism and further mobilisation around broader reforms.
However, the fact that the success and broader transformative impact of
the public interest litigation initiated by the TAC have significantly
overshadowed that of cases brought by individual litigants in their own
interest, arguably illustrates that the transformative potential of socioeconomic rights litigation will be curtailed where such litigation does not
relate to an issue of extreme public importance and profile, and where it
108
109
110
111
N 48-50 above and accompanying text.
See Pieterse (n 7 above) 130-131; Pieterse (n 1 above) 385.
Liebenberg (n 5 above) 10.
Argued by Heywood (n 49 above) 207-208.
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fails to tie into a consistently pursued and multi-faceted campaign by a
well-resourced and adequately mobilised social movement.112
This said, it may nevertheless be argued that, regardless of their profile
and success, individual health-rights cases have raised the public profile of
the poor’s interests in obtaining access to health care. By casting the
interests of the poor in terms of rights-based entitlement rather than
‘welfare’ or ‘neediness’, the judgments have provided an important
counterweight to increasingly neo-liberal societal discourses over poverty.
Even the loss of the Soobramoney case had a positive effect in this regard,
by provoking public reflection over societal priorities in the context of
unnecessary illness, suffering and death as a result of poverty.113 Rightsbased litigation may therefore increase public support for social
movements concerned with poverty alleviation and enrich public
discourse around the manner in which society responds to the plight of the
poor.
3.4 The impact of rights-vindication on health system
reform
Over and above their impact on individual litigants, other rightsbeneficiaries and social movements, it is clear from the above discussion
that rights-based judgments also significantly influence the regulatory
environments into which they are released. However, this impact appears,
at best, to be unpredictable and not necessarily related to the outcome of
the constitutional challenges in question.114 In this subsection, I compare
and contrast the policy impact of the Treatment Action Campaign, New Clicks
and Law Society judgments. All three of these were in favour of health
system transformation and sought to advance meaningful access to health
care services within a transformed system, either by countering countertransformative or regressive tendencies within the Department of Health,
or by ensuring that reform efforts pay sufficient attention to the needs of
the ill and vulnerable. Moreover, as discussed above, all three judgments
have generally implied positive consequences for access to health services
by specific groups of vulnerable patients. Yet, it would seem that their
impact on the transformation of the health system has been mixed. Why
has this been the case?
112 Davis (n 4 above) 326.
113 See newspaper articles cited in Pieterse (n 1 above) 386.
114 For similar observations regarding the policy impact of rights-based judgments in other
jurisdictions see, for instance, CP Manfredi & A Maioni ‘“The last line of defence for
citizens”: Litigating private health insurance in Chaoulli v Quebec’ (2006) 44 Osgoode
Hall Law Journal 249 251; M Sunkin ‘Conceptual issues in researching the impact of
judicial review on government bureaucracies’ in M Hertogh & S Halliday (eds) Judicial
review and bureaucratic impact: International and interdisciplinary perspectives (2004) 43 52.
85
Clearly, the legal standards and principles that transpire from
judgments have the effect of reining in policy makers. This is true both in
relation to regulatory processes – in that a Court's interpretation of the
constitutional principles of legality or procedural fairness delineates the
manner in which future policies must be formulated – and to their
substantive content – in that substantive principles transpiring from
judgments, such as that price control regulations may not result in
medicines becoming unavailable, or that compensation paid to people who
become paraplegic in motor vehicle accidents must enable them to access
appropriate care in the private sector, limit the options that are available to
policy makers. Judgments may therefore have the effect of significantly
restricting regulatory possibilities, which could be problematic in a range
of conceivable instances.115 For this reason, courts often avoid articulating
substantive standards in their judgments, unless this is absolutely
necessary. Indeed, commentators have ascribed the widely lamented
paucity of substantive standards inherent to the Constitutional Court's
'reasonableness approach' to socio-economic rights adjudication116
precisely to this fear of straitjacketing the executive.117
This said, with the possible exceptions of N and Law Society, none of
the health rights judgments discussed above can really be accused of
having laid down overly exact substantive standards that, in and of
themselves, prohibit the Department of Health from pursuing the healthsystem-related objectives held forth in the National Health Act. On the
contrary, the two judgments that most directly guided the Department's
regulatory powers, Treatment Action Campaign and New Clicks, both took
care to preserve a significant margin of regulatory discretion for the
Department,118 whereas the Court in New Clicks, which is arguably the
judgment which has had the most debilitating bureaucratic impact, went
so far as to explicitly endorse the government's policy goal and method.119
The substantive content of the judgments thus does not adequately and
completely explain their impact on health system regulation.
Rather, part of the answer arguably lies within the reality that ‘policies
are iterative and dynamic as opposed to progressing in linear fashion from
115 See, for instance, J Berger & A Hassim ‘Regulating private power in health’ (2010) 11
ESR Review 6 who show, in relation to the North Gauteng High Court's judgment in
Hospital Association of SA Ltd v Minister of Health 2010 (1) BCLR 1047 (GNP), which
will be discussed in ch 5 below, that a finding of unconstitutionality, which arguably
flowed from an erroneous and unduly restrictive application of constitutional
principles, effectively prohibits the state from determining and publishing the annual
national health reference price list. Because the judgment was (perhaps unwisely) not
appealed, this regulatory avenue now appears to have been unduly foreclosed.
116 For examples of this criticism, see authorities cited in n 36 above.
117 Davis (n 4 above) 304-305.
118 See Treatment Action Campaign (n 23 above) para 135.4; New Clicks (n 51 above) paras
16, 18 (per the Court).
119 See passages in New Clicks referred to in n 62 above.
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conceptualisation to implementation and then outcomes’.120 In particular,
policy outcomes are said to be contingent both on the internal political
environment within which policies are conceptualised and implemented,
as well as the external political environment within which they are
received. Whether access-enhancing or pro-transformation judgments
ultimately have a positive effect on policy, may thus likewise be expected
to depend on whether both of these political environments are conducive
thereto.121
As to the internal political environment, successful policy
conceptualisation and implementation are said to depend both on the
presence of political will within a policy-formulating body and on its
capacity – understood as the necessary human skills and institutional
norms and processes – to conceive and implement the policy in
question.122 Where a judicial decision requires the formulation,
reformulation, adaption or jettisoning of a particular policy, ultimate
compliance therewith will similarly depend on both capacity and political
willingness.
In relation to political will, prior political or bureaucratic attitudes to
an anticipated court decision appear to be particularly significant in
predicting the policy-impact of the decision. Where such attitudes are
favourable, policy adjustment in accordance with the eventual decision
tends to be unproblematic, especially where the decision does not directly
undermine the overall political project of current or envisaged
regulation.123 Indeed, as the reaction of certain provincial governments to
the Treatment Action Campaign decision has shown, a judgment may have
the effect of removing political blockages and of enabling favourably
disposed political organs to implement its substantive tenets.124 Policy
may even be conducively adapted during the course of litigation, either in
anticipation of a decision or in order to soften its eventual impact.125 On
the other hand, and underscored by the retarded compliance of other
respondents in Treatment Action Campaign, prior political hostility to a
judicial decision can hinder, or ultimately deflate, its intended policy
impact.126
120 E Pieterse & M van Donk ‘Incomplete ruptures: The political economy of realising
socio-economic rights in South Africa’ (2002) 6 Law, Democracy & Development 193 196.
121 Pieterse & Van Donk (n 120 above) 197; GN Rosenberg The hollow hope: Can courts
bring about social change? (2ed 2008) 31.
122 Pieterse & Van Donk (n 120 above) 197, 207.
123 See BC Canon ‘Studying bureaucratic implementation of judicial policies in the
United States: Conceptual and methodological approaches’ in Hertogh & Halliday (n
114 above) 76 80.
124 Heywood (n 24 above) 303-304. Also argued, in a different context, by Rosenberg (n
121 above) 34.
125 Heywood (n 24 above). In a different context, this was also illustrated by the City of
Johannesburg's policy responses during the course of the (eventually unsuccessful)
litigation pertaining to the right of access to water in Mazibuko v City of Johannesburg (n
93 above). See specifically para 163 of the judgment.
126 Rosenberg (n 121 above) 420.
87
Concerning capacity, the ability of policymakers to understand what is
required of them and to adapt, formulate or replace policy accordingly, is
obviously a key factor. In internal political contexts where this capacity is
lacking, thin or uneven, as is the case with the South African Department
of Health,127 it is possible that judgments could overwhelm, unsettle or
derail policy processes rather than to merely inform their course. This is
evident from the bungling regulatory response to New Clicks.
Equally important to a policy maker's own attitudes towards a
judgment and its capacity to react to it in a desirable manner, is the external
political environments within which litigation is waged and in which
judgments are received.128 Specifically, the nature, political leaning, level
of organisation and clout of social movements and pressure groups that
operate within these external environments have a bearing both on the
manner in which a policy maker absorbs and adjusts to a particular
judgment, and in which it will exercise its policy-making power in future.
So, for instance, would a policy-making entity be more likely to comply
with a judgment against it if its compliance were to be monitored by a
vigilant and resourceful pressure group? It would also be more likely to
structure its future regulatory conduct in a manner that attempts to avoid
conflict with, and further litigation by, the pressure group.129
Where external pressure on a policy maker emanates from a
progressive social movement such as the TAC, the overall effects thereof
for the achievement of social justice will likely be constructive. However,
transformation-oriented policy making can be significantly restrained
where pressure groups, such as the organised groupings within the private
health sector, favour the continuation of the status quo.
The manner in which judgments impact on and get appropriated by
social movements and pressure groups themselves thus becomes
significant. It is well documented that the culmination of a legal process
can have the effect of either energising or deflating a social movement or
pressure group, or even of generating a counter-movement or pressure
group.130 This would obviously have an effect on the extent to which the
initial movement or pressure group is able to exert its influence on a policy
maker. Accordingly, whether or not a judgment ultimately advances
achievement of a desired political goal, seems to depend largely on the
manner in which it is received and utilised by the movements within the
127 On lack of regulatory and other capacity within the Department of Health see, for
instance, Eastern Cape Health Crisis Action Committee Memorandum to MEC Sicelo
Gqobana: About the crisis in Eastern Cape health (September 2013) 3 available at http://
www.echealthcrisis.org (accessed 6 May 2014).
128 Sunkin (n 114 above) 53, 67-68.
129 Sunkin (n 114 above) 48.
130 See, for instance, P Gabel ‘The phenomenology of rights-consciousness and the pact of
the withdrawn selves’ (1983-1984) 62 Texas Law Review 1563 1593-1597; Manfredi &
Maioni (n 114 above) 251; Rosenberg (n 121 above) 415-419, 425.
88
Chapter 3
surrounding political environment,131 especially in instances where the
policy maker lacks sufficient political will or capacity to independently
pursue the goal.
The contrast between the external political reception of the judgments
in Treatment Action Campaign and New Clicks presents a telling example.
Energised and empowered by its victory in the PMTCT case, the TAC
could exert pressure upon the Department of Health to implement some of
the mandatory aspects of the order. Indeed, as has been alluded to above,
the extent to which the order was ultimately implemented corresponded
largely to the extent to which the TAC had the capacity to monitor
compliance. But, more importantly, the TAC was able to use the political
clout gained by its victory in the limited context of PMTCT to exert greater
pressure on the government to yield to its broader demands of universal
access to ARV treatment.
In New Clicks, on the contrary, the TAC entered the fray as amicus curiae
and disengaged from it after the judgment. The private pharmacies, on the
other hand, were energised by the judgment – even though, on an overall
reading of it, they had little reason to be – and kept close watch over the
Department of Health's subsequent regulatory activities. This meant that,
even as the judgment upheld the pro-transformation arguments of the TAC
and explicitly affirmed the legitimacy of pharmaceutical price regulation,
the pressure that the Department of Health experienced as a result of the
judgment was against such regulation. Even as compliance with the letter
of the judgment could therefore have been expected to advance the
transformation of the health sector, its actual policy impact was to delay
such transformation.
This is why we have reason to be concerned about the potential impact
of the Law Society judgment, even as we support its findings in relation to
access to private health care services by paraplegics and quadriplegics.
Whereas the judgment mostly affirmed the state's position in the contested
political arena in which it was brought (specifically the ‘industry’
surrounding compensation for injuries sustained during motor vehicle
accidents), it is likely that it may have counter-transformative effects when
received in a different political arena, that of health policy. This would be
the case if the judgment were to be appropriated by and to have an
energising effect on the (already vocal and well-resourced) opponents to
National Health Insurance and to the concomitant reining in of the private
health sector.
In this respect, Law Society calls to mind the majority judgment of the
Canadian Supreme Court in Chaoulli v Attorney General, Quebec, which
found that it breached the rights to life and personal inviolability of citizens
131 Kapczynski & Berger (n 37 above) 78.
89
of Quebec to forbid them to purchase private health insurance in
circumstances where the public health care system was not able to provide
them with adequate care within a reasonable time.132 In Canada, where
the state has for years been defending the maintenance of a unitary,
national health system based on need-based universal access to care,
against proponents of a two-tier, private/public, resource-dependent
system such as that which currently exists in South Africa, the effect of
Chaoulli has reportedly been to strengthen the political position of
opponents to the unitary system, whilst putting the government on the
defensive.133 Given the extreme and constitutionally untenable
inequalities inherent to the current state of the South African health
system, it would be unfortunate if Law Society was to have a similar effect.
3.5 Conclusion
It is clear that the presence of constitutional rights to have access to health
care services has served both to promote and protect the individual health
interests of citizens within broader policy processes. Indeed, citizens, and
the social movements that represent their interests, have on several
occasions relied on these rights to demand that the health system provides
them with specific forms of medical care.
While these claims have not always succeeded, and while courts have
been loath to interpret the rights as awarding immediately claimable
entitlements to specific medicines, their vindication has, on more than one
occasion, resulted in an increase of access to specific health services by
poor and marginalised South Africans. In other instances, health rights
judgments have mandated that the health interests of citizens be taken into
account in formulating and implementing policies. This has meant, for
instance, that policies aimed at health-system reform could not have
detrimental effects on overall access to services and, in particular, had to
ensure that the health-related needs of specific, vulnerable groups of
patients have been sufficiently catered for.
The constitutional ensconcement of health-related rights has further
clearly had the effect of energising social movements in the field of health.
In particular, the TAC has consistently used the rights in furthering its
struggle for adequate treatment for HIV-positive, poor South Africans. As
a result of its efforts, the health system is today significantly more
responsive to their plight than it was a number of years ago.
132 Chaoulli v Attorney General, Quebec 254 DLR (4th) 2005 paras 4, 40, 43 (per Deschamps
J for the majority); 104-105, 122, 124, 158 (per McLachlin CJC & Major J, concurring
separately).
133 Manfredi & Maioni (n 114 above) 267, 271.
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Chapter 3
But, these positive features of health-related rights and litigation
notwithstanding, this chapter has also shown that judgments vindicating
the right of access to health care services may sometimes have the effect of
derailing, disrupting or retarding state efforts at health system
transformation, even as they protect the health-related interests of
vulnerable citizens and endorse the overall transformation project. This, it
has been argued, has not primarily been due to any substantive feature of
the judgments themselves, but rather to the manner in which they are
received and appropriated by the political bodies towards which they are
directed and by the movements and pressure groups within the external
political environment to which they pertain.
So, given that they are constitutionally obliged to pronounce on the
constitutionality of health-related policies, is there then anything that
courts can do to minimise the possibility that their judgments may have an
inhibiting effect on the transformation of the health system? While the
impact of judgments will remain unpredictable, it would seem from the
above discussion that it could sometimes be better contained through
explicit judicial awareness of, and, in appropriate circumstances, responses
to the internal and external political environments at which judgments are
targeted, or to which they may incidentally be relevant.
Awareness of internal political context could mean that courts may
have to take judicial notice of lack of regulatory capacity within a state
department or of evident hostility towards compliance with particular
judgments, as was evident in the Treatment Action Campaign case. In both
instances, such awareness may prescribe the laying down of more exact
substantive standards within a judgment (so that policy makers have more
clarity on what is expected of them and less scope for diversion)134 and of
a more prescriptive order than would otherwise have been the case (in
order to minimise the scope for non-compliance with, or undermining of
an order). Indeed, it has been suggested that awareness of a serious lack of
capacity or hostility against the outcome of a matter should lead a court to
decide to ensure compliance with its order by exercising supervisory
jurisdiction.135 Admittedly, this would be counter-intuitive for courts,
which prefer not to bind executives too closely to a particular policy
outcome and to preserve a wide margin of executive discretion, especially
in polycentric cases. Yet, it may be that it is precisely this intuition that
may restrain the progressive impact of court orders.136
Equally counter-intuitively, responding to the external political
environment of a decision may require of courts explicitly to acknowledge
134 See Bilchitz (2003) (n 36 above) 10; M Pieterse ‘Legislative and executive translation of
the right to have access to health care services’ (2010) 14 Law, Democracy & Development
1 19-20.
135 Heywood (n 40 above) 11; Roach & Budlender (n 43 above) 349-351.
136 As has been argued in relation to the Court’s decision not to impose supervisory
jurisdiction in Treatment Action Campaign. See n 42-44 above and accompanying text.
91
it in their judgments. Where a court is aware of the existence of a countertransformative pressure group associated with or interested in the outcome
of litigation, it should arguably explicitly indicate such awareness and, at
least, make clear which policy outcomes are not envisaged by the
judgment. Court orders which aim to facilitate the transformation of the
health system within a volatile external political environment, such as that
handed down in New Clicks, should arguably be cast in the imperative and
contain detailed guidelines on compliance, so as to minimise the extent to
which external pressure groups can exploit ambiguities in judgments to
resist transformation.
Overall, though, it is clear that the constitutional presence of health
rights has significantly altered the political landscape around healthrelated policy making and that this alteration, form the perspective of
patients (both individually and collectively) has been positive. However, as
health-system reform in South Africa reaches new levels of intensity,
courts will increasingly be called upon to balance competing rights to
health without derailing legitimate and necessary transformation efforts.
This chapter has shown that doing this will most likely require greater
judicial activism in polycentric matters and a more overtly political role for
the judiciary than has hitherto been the norm in South Africa. This will not
find universal favour, least of all, perhaps, from courts. However, by
awarding courts jurisdiction over politically charged matters such as the
realisation of socio-economic rights, in a constitutional dispensation that
unabashedly pursues a transformative political agenda; the veil of judicial
political neutrality has irrevocably been pierced.137 Continuing to hide
behind it may, accordingly, do more harm than good.
137 In relation to the Constitution’s explicit politicisation of rights-based adjudication see,
for instance, D Davis Democracy and deliberation: Transformation and the South African
legal order (1999) 14, 47; KE Klare ‘Legal culture and transformative constitutionalism’
(1998) 14 South African Journal on Human Rights 146 147, 162-164; D Moseneke ‘The
fourth Bram Fischer memorial lecture: Transformative adjudication’ (2002) 18 South
African Journal on Human Rights 309 314, 317-319; Pieterse (n 2 above) 398, 417.
CHAPTER
4
RIGHTS AND RESOURCES: THE
1
LIMITS OF JUSTICIABILITY?.
4.1 Introduction 1
‘A legal right exists, in reality, only when and if it has budgetary costs’.2
It all comes down to resources in the end. Health care delivery requires
skilled personnel, adequate facilities, appropriate drugs and equipment. In
short, it requires money. The availability of resources, their distribution
and the manner in which they are appropriated, directly determine the
extent and quality of access to health care services. Resources also lie at the
heart of the great majority of legal disputes pertaining to access to health
care.
Moreover, health care financing and resource distribution, in South
Africa as elsewhere, are intensely political. The amount of public and
private resources spent on health, and the distribution of those resources
within and across the public and private health sectors, reflect complex,
polycentric and fraught policy choices. Indeed, much of South Africa's
current health-system crisis and most of the debates around solving it –
through, mainly, the introduction of a National Health Insurance system
– revolve around the flow and distribution of resources. In particular,
much of the prevailing discourse appears to be informed by a growing
sense that the significant extent of health spending in South Africa is not
translating into the positive health outcomes it would appear to suggest.3
1
2
3
In places, this chapter reproduces parts of M Pieterse ‘Health care rights, resources and
rationing’ (2007) 124 South African Law Journal 514. It, however, extends significantly
beyond that article.
S Holmes & CR Sunstein The cost of rights: Why liberty depends on taxes (2000) 19.
See DE McIntyre et al ‘Health care financing and expenditure: Post-1994 progress and
remaining challenges’ in HCJ van Rensburg (ed) Health and health care in South Africa
(2ed 2012) 433 433; B Ruff et al ‘Reflections on health-care reforms in South Africa’
(2011) 32 Journal of Public Health Policy S184 S190 as well as sec 4.5 below.
93
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Chapter 4
The cost of health care, as well as the polycentricity, highly specialised
and politically loaded nature of health policy are typically advanced as
reasons against viewing health care as the object of a human right or, at
least, against regarding any right to receive health care as being legally
enforceable. As is the case with other socio-economic rights, courts are
traditionally regarded as being ill equipped to decide health disputes.
Moreover, as is the case with other socio-economic rights, health policy
matters accordingly tend to be viewed as being in the exclusive domain of
legislatures and policy makers, meaning that separation of powers-related
and counter-majoritarian tensions, inherent to the institution of judicial
review, are particularly sharply felt in relation to them.4 Specifically,
budgets and resource-allocation procedures tend to be viewed, within most
legal systems, as lying beyond the realms of justciability.5 Courts are thus
typically cautioned to exercise significant restraint when budgetary or
financial decisions of any nature come before them and to defer to the
wisdom of those primarily responsible for those decisions.6
Yet, socio-economic rights, including the right to have access to health
care services, are justiciable under the Constitution. Moreover, since the
Constitution determines that these rights should be realised progressively,
within the available resources of the state,7 budgets and other resourcerelated dimensions of social service delivery must feature in almost all
instances of socio-economic rights adjudication. This means that South
African courts have not only been empowered, but mandated, to
adjudicate upon issues that were traditionally thought to lie at the
boundaries of the separation of powers.8
This said, we can expect that courts will be extremely hesitant to
scrutinise budgetary and financial dimensions of socio-economic rights
cases, lest they be accused of overstepping institutional boundaries.
However, as will be elaborated below, some form of judicial scrutiny of the
financial and budgetary decisions that impact on the enjoyment of the right
to have access to health care services, however limited, would appear to be
both unavoidable and necessary. This means that the right to have access
to health care services, as well as the jurisprudence that gives effect to it,
4
5
6
7
8
See M Pieterse ‘Coming to terms with judicial enforcement of socio-economic rights’
(2004) 20 South African Journal on Human Rights 383 392-395 and authorities cited
there; K Syrett Law, Legitimacy and the rationing of health care: A contextual and
comparative perspective (2007) 130-132 as well as the discussion in ch 1 above at 1.4.
Pieterse (n 4 above) 389; Pieterse (n 1 above) 527-528; T Roux ‘Legitimating
transformation: Political resource allocation in the South African Constitutional
Court’ (2003) 10 Democratization 92 92.
See C Chetty ‘The right to health care services: Interpreting section 27 of the
Constitution’ (2002) 17 SA Public Law 453 458; DM Davis ‘The case against the
inclusion of socio-economic demands in a Bill of Rights except as directive principles’
(1992) 8 South African Journal on Human Rights 475 489; Pieterse (n 4 above) 393-394,
408 and authorities cited there.
Secs 26(2) and 27(2) of the Constitution.
P Lenta ‘Democracy, rights disagreements and judicial review’ (2004) 20 South African
Journal on Human Rights 1 3; Pieterse (n 1 above) 528; Syrett (n 4 above) 207.
95
may well have implications for health budgeting as well as for the manner
in which health resources are allocated, distributed and appropriated at
various levels.
This chapter pays closer attention to these implications. Section 4.2
engages with resource allocation and rationing issues at a discursive level
and shows how rights discourse brings the political factors which impact
upon such allocation and rationing into the public domain, hence
enhancing openness, transparency and accountability. Thereafter, section
4.3 considers the ways in which rights guide resource allocation and
distribution processes, focusing particularly on the normative implications
of certain provisions in the South African Constitution. In section 4.4, the
focus shifts to the courts. The section describes the institutional role that
the Constitutional Court appears to envisage for itself in socio-economic
rights matters which implicate budgets and resource allocation, and
evaluates the extent to which its growing jurisprudence on the positive
dimensions of constitutional rights has impacted budgetary and financial
policies and processes. Section 4.5 then applies the conclusions reached to
current health financing issues in South Africa, with a particular focus on
National Health Insurance. In conclusion, section 4.6 reflects upon the
extent to which constitutional rights have enhanced public deliberation
around resources for health care.
4.2 Rights discourse, resource allocation and the
unmasking of tragic choices
[F]iscal limitations are not simply facts of nature. They are at least in part
constructed by past and current political choices. The fiscal constraints cited
by all governments must be viewed through a lens that reflects corruption,
misallocation of funds, colonialism, tax policies that favour the wealthy, and a
host of other human-made conditions, historical and contemporary.9
[T]hat the court was ill-equipped to answer the question, misses the point;
everyone will remain ill-equipped to answer the question unless steps are
taken to bring it, and the procedure by which it is considered, into the public
domain.10
As is the case with other social goods and services, access to health care
services is shaped by a myriad of political choices and processes pertaining
to resource allocation. For instance, the degree of state interference in
societal resource distribution, taxation policies, the extent and nature of
social spending, the allocation of resources between competing social
9
10
LA Williams ‘Issues and challenges in addressing poverty and legal rights: A
comparative United States/South African analysis’ (2005) 21 South African Journal on
Human Rights 436 438.
A Parkin ‘Allocating health care resources in an imperfect world’ (1995) 58 The Modern
Law Review 867 876.
96
Chapter 4
needs, the balance between public and private sector social service
provision, budget processes at national, provincial and local levels, as well
as functional decisions on the appropriation of funds and other resources
within particular budgets all determine, to a greater or lesser extent,
whether resources are available for the provision of a particular health
service to a particular patient in a particular context.11
Accepting, moreover, that the societal demand for health care services
will almost always be greater than the amount of resources available to
satisfy it, the outcome of these political choices and processes ultimately
determine, in a very real way, who can access necessary medical care and
who cannot.12 As such, the processes and choices are not only politically
loaded, but also morally significant. They further tend to be informed by
competing, and sometimes contradictory, ideologies and conceptions of
justice, and are often subject to significant moral and political
contestation.13
The problem is that these processes and choices tend, in the normal
course of events, to be shielded from public scrutiny and deliberation.
Primary budgetary and resource-distribution decisions that impact on
health – such as, for instance, the amount of income tax to be levied in a
particular year, the amount of public resources to be invested in the health
sector and the size of a national health budget vis-à-vis the national budget
for, say, housing, or sport and recreation – are typically depicted as being
the outcome of expert and political decisions by duly elected
representatives which have been taken for the common good and which
do, as a result, not require further scrutiny. Constraints occasioned by
these decisions for functionaries and decision-makers further down a
resource allocation chain – such as the extent to which a limited provincial
health budget makes it necessary to choose which health services to offer
in a particular district or which individual patient, or pool of patients,
should be given access to a particular, limited health care resource, such as
kidney dialysis treatment – are in turn depicted as being ‘normal’, ‘natural’
and ‘inevitable’ consequences of self-evident resource scarcity.
11
12
13
For an exposition of the relevant contemporary processes and choices in South Africa,
see A Dhai & H Etheridge ‘Resource allocation’ in A Dhai & D McQuoid-Mason
(eds) Bioethics, human rights and health law: Principles and practice (2011) 143 144; N
Ferreira ‘Feasibility constraints and the South African Bill of Rights: Fulfilling the
Constitution’s promise in conditions of scarce resources’ (2012) 129 South African Law
Journal 274 292-293.
See Dhai & Etheridge (n 11 above) 143; E Elhauge ‘Allocating health care morally’
(1994) 82 California Law Review 1450 1459; LM Fleck Just caring: Health care rationing
and democratic deliberation (2009) 40; RD Lamm ‘Rationing health care: Inevitable and
desirable’ (1992) 140 University of Pennsylvania Law Review 1511 1512; S McLean & JK
Mason Legal and ethical aspects of healthcare (2003) 15-16; Syrett (n 4 above) 33.
See RJ Cook ‘Exploring fairness in health care reform’ (2004) 29 Journal for Juridical
Science 1 4-5; N Daniels Just health: Meeting health needs fairly (2008) 103, 109; Ferreira
(n 11 above) 275; McLean & Mason (n 12 above) 16; Pieterse (n 1 above) 514-515;
Syrett (n 4 above) 91.
97
Concomitantly, health rationing decisions – namely, decisions as to
which patients should be given access to particular forms of treatment
within prevailing resource constraints – are depicted as involving ‘tragic’
and ‘agonizing’ choices that are necessary because of the ‘inescapable
reality’ of (‘natural’ and self-evident) resource constraints. The according
‘inevitable’ and ultimately imperfect nature of such choices is then said to
require that the discretion and expertise of those who have been 'forced' to
make them, in the public interest, be respected.14
By depicting the resource constraints that necessitate health care
rationing as self-evident and inevitable, ‘tragic reality’ discourse isolates
individual rationing decisions from the broader context in which they are
taken, thereby ‘de-politicizing’ them. It denies that budgets and the
accompanying resource limitations that shape the context of rationing
decisions are in fact ideologically loaded political phenomena rather than
natural occurrences, and prevents deliberation over or questioning of the
political decisions that shape resource scarcity.15 It also serves to obscure
the moral, practical and subjective considerations which impact on the
political and functional decisions that shape access to care, meaning that
the often highly controversial and questionable principles and assumptions
that underlie such decisions are left un-probed.16 Finally, it reinforces
existing arguments that decisions of resource allocation, distribution and
appropriation are ill-suited for deliberation by entities other than those
taking the decisions and, in particular, that they are beyond the
institutional competence and capacity of courts.17 It is therefore
unsurprising that assertions of the expert and specialist nature of resource
allocation processes, and of the ‘tragic reality’ of rationing decisions, are
typically accompanied by an assertion of the separation of powers.18
14
15
16
17
18
See Fleck (n 12 above) 84; Pieterse (n 1 above) 515-518 and authorities cited there;
Syrett (n 4 above) 79. One of the most often-quoted examples of this line of reasoning
is the majority decision by the civil division of the British Court of Appeal in R v
Cambridge Health Authority, ex parte B, where the court held that it is impossible, in ‘the
real world’, to give all patients access to every form of treatment that they require, and
that health authorities must therefore make ‘difficult and agonizing’ choices as to how
best to allocate limited health budgets to the overall advantage. Because of this, it was
held, such decisions should not be second-guessed by courts. R v Cambridge Health
Authority, ex parte B [1995] 2 All ER 129 (CA) 137d-g.
Elhauge (n 12 above) 1458, 1495-1496; Ferreira (n 11 above) 275; LM Fleck ‘Just
health care rationing: A democratic decisionmaking approach’ (1992) 140 University of
Pennsylvania Law Review 1597 1599; Parkin (n 10 above) 867, 870, 878; Pieterse (n 1
above) 516; K Syrett ‘Deference or deliberation: Rethinking the judicial role in the
allocation of healthcare resources’ (2005) 24 Medicine & Law 309 314; Williams (n 9
above) 438.
See Fleck (n 15 above) 1616; Fleck (n 12 above) 82, 84; MA Hall ‘Rationing health
care at the bedside’ (1994) 69 New York University Law Review 693 715; D Orentlicher
‘Destructuring disability: Rationing of health care and unfair discrimination against
the sick’ (1996) 31 Harvard Civil Rights, Civil Liberties Law Review 49 51-52, 59, 61-62,
71; Parkin (n 10 above) 870, 877; Pieterse (n 1 above) 517.
See JA King ‘The justiciability of resource allocation’ (2007) 70 Modern Law Review 197
199; E Palmer ‘Resource allocation, welfare rights – Mapping the boundaries of
judicial control in public administrative law’ (2000) 20 Oxford Journal of Legal Studies 63
77-78; Pieterse (n 1 above) 518.
Ferreira (n 11 above) 275.
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Chapter 4
Given that the rationing of resources available for medical care often
involves ‘an overt sacrifice of identifiable persons’ lives or welfare’,19 legal
scholars in most societies are increasingly contending that both budgeting
and overarching resource distribution decisions generally, as well as the
specific health resource rationing decisions and processes occasioned by
them, should be based on transparent and consistent criteria, should be
capable of rational as well as principled justification and should be
subjected to objective scrutiny, so as to ensure that they resonate with
values of accountability, equity and fairness.20
These calls are lent significant weight where a society guarantees
access to health care services as an enforceable right.21 Since rights
represent shared societal commitments to the protection of interests
regarded as being of fundamental importance, they provide the substantive
principles and moral parameters to which all public processes that impact
on their enjoyment must adhere.22 This means that, in societies which
guarantee rights to receive health care, societal deliberation and
disagreement over the principled bases for health-related resource
allocation, distribution and rationing, find expression in public
deliberation over the meaning of the rights in question.23
By depicting claims to health care services as enforceable entitlements
and by insisting that access to such services be facilitated progressively
within available resources, the language of rights recasts every exclusion
from medical care due to resource scarcity and resulting rationing
processes as constituting a prima facie infringement of an enforceable right,
rather than as being the inevitable consequence of an unavoidable, tragic
choice. Since infringements of justiciable human rights may not be
tolerated unless they are capable of principled and cogent justification,24
relevant decision makers and political organs may thus be called upon to
justify the extent to which their decisions impact on individual or collective
enjoyment of health-related rights, according to human-rights principles.25
This duty of justification applies to all levels of decision-making and thus
extends beyond the outcome of individual decisions over access to
particular health services in the context of specific resource constraints, to
19
20
21
22
23
24
25
Hall (n 16 above) 719.
See MG Bloche ‘The invention of health law’ (2003) 91 California LR 249 301-302,
309, 321-322; Daniels (n 13 above) 103, 109, 117; Fleck (n 15 above) 1621; Fleck (n 12
above) 88-95; R James & D Longley ‘Judicial review and tragic choices: Ex parte B’
(1995) Public Law 367 373; D Mechanic ‘Professional judgment and the rationing of
medical care’ (1992) 140 University of Pennsylvania Law Review 1713 1746; Parkin (n 10
above) 868, 871-872, 875-877; Palmer (n 17 above) 78; Syrett (n 15 above) 310; Syrett
(n 4 above) 61-62, 238.
Syrett (n 15 above) 318; Syrett (n 4 above) 64.
Fleck (n 15 above) 184.
Daniels (n 13 above) 313-315.
See, for example, R Dworkin Taking rights seriously (1977) 198-200, 204, 268-269, R
West ‘Rights, capabilities and the good society’ (2001) 69 Fordham Law Review 1901
1917.
Cook (n 13 above) 11.
99
encompass also the substantive motivations, political decisions and other
structural factors that shape such constraints.
Institutionally, making social goods such as health care services the
objects of rights-based protection, extends the reach of mechanisms aimed
at ensuring accountability in public decision-making also to decisions and
processes that determine the availability and distribution of such goods.
Therefore, unlike in constitutional systems that do not view access to
health care services as the object of a right, courts in countries such as
South Africa have the mandate, as well as the required ‘public policy base’,
to test the outcomes of resource allocation and rationing decisions and
processes against articulated constitutional standards.26 According to
Keith Syrett:
Conceptualisation of disputes as to access to healthcare resources as raising
questions of rights thus provides a firmer foundation for judicial willingness
to engage in adjudication within this field, which is clearly the necessary first
step to assumption of a deliberative function by the courts. However, the
prospects for deliberation are significantly enhanced by the structure of
human rights instruments and the nature of rights adjudication.27
Courts will therefore increasingly be the fora in which the justness of health
care resource allocation is deliberated.28
As in the case of other socio-economic rights, the constitutional
entrenchment of justiciable rights to health care services thus demands a
rethink of conventional judicial approaches to the various political
processes and decisions that determine the distribution of resources within
society.29 The justiciability of health rights empowers individuals who
have been adversely affected by political decisions not to direct resources
towards the satisfaction of their health-related needs, to use the legal
process to challenge the validity of such decisions. Courts, in turn, must
decide whether challenged resource allocation and rationing decisions are
constitutionally justifiable, and can no longer shelter behind the 'tragic
reality' and discretionary nature of such decisions.
26
27
28
29
On the absence of such a ‘public policy base’ where health care is not viewed as a right,
see MA Hall & GF Anderson ‘Health insurers’ assessment of medical necessity’
(1992) 140 University of Pennsylvania Law Review 1637 1682; Palmer (n 17 above) 88; JA
Siliciano ‘Wealth, equity, and the unitary medical malpractice standard’ (1991) 77
Virginia Law Review 439 479.
Syrett (n 4 above) 234-235.
Cook (n 13 above) 11, 15, 23. See also South African Human Rights Commission
Report Public Inquiry: Access to Health Care Services (2008) 30.
See TJ Bollyky ‘R if C > P + B: A paradigm for judicial remedies of socio-economic
rights violations’ (2002) 18 South African Journal on Human Rights 161 164; Davis (n 6
above) 480, 484-485; S Liebenberg ‘South Africa’s evolving jurisprudence on socioeconomic rights: An effective tool in challenging poverty?’ (2002) 6 Law, Democracy &
Development 159; AJ Rycroft ‘The protection of socio-economic rights’ in H Corder
(ed) Essays on law and social practice in South Africa (1988) 267 268.
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Chapter 4
4.3 Rights as directives for resource allocation and
rationing
In most societies, one of the main obstacles to the development of a
coherent and morally justifiable approach to health-related resource
allocation and rationing is the lack of normative consensus over the values
that such processes and decisions must serve and the priorities that they
should reflect. In both the United States and the United Kingdom, for
instance, it has been argued that, in order to develop a coherent and
meaningful set of guiding principles to which individual rationing
decisions must adhere and against which their outcomes may be tested,
society would have to arrive at a shared political conception of the
‘common good’ that may guide health care policy and rationing processes,
by way of a Rawlsian process of public deliberation.30
In South Africa, it is arguable that the post-apartheid constitutional
negotiation and drafting processes represented an attempt at such public
deliberation and that a shared conception of the political ‘common good’
for post-apartheid South Africa accordingly emerges from the text of the
Constitution. The Constitution is often described as being ‘transformative’
in its orientation, in that it encapsulates a particular egalitarian and socialdemocratic political vision and requires of its interpretative community to
participate in the achievement of this vision.31 Since the constitutional
vision not only influences the content of South African law and policy but
also applies to both public and private conduct,32 it is to be expected that
the substantive values reflected in the constitutional text would guide and
constrain resource allocation and rationing decisions at various levels. The
‘culture of justification’ fostered by the structure of the South African Bill
of Rights – which, in section 36, determines that rights may be limited only
by way of a law of general application that is ‘reasonable and justifiable in
an open and democratic society based on human dignity, equality and
freedom’ – further means that all resource allocation decisions and
processes need to be justifiable with reference to these substantive values.
30
31
32
See RH Blank ‘Regulatory rationing: A solution to health care resource allocation’
(1992) 140 University of Pennsylvania Law Review 1573 1576; Bloche (n 20 above) 303307; Fleck (n 15 above) 1598, 1621; Fleck (n 12 above) 152-160, 163; Hall (n 16 above)
702-703, 744-745; KP Quinn ‘Viewing health care as a common good: Looking
beyond political liberalism’ (2000) 73 Southern California Law Review 277 289, 305, 324325; Syrett (n 4 above) 111-116. R Dworkin ‘Justice in the distribution of health care’
(1993) 38 McGill Law Journal 883 888-894, for example, argues that health consumers
in the Rawlsian original position would agree to prioritise the delivery of cost-effective,
primary health care services over other, more ‘wasteful’, health care expenditures.
See KE Klare ‘Legal culture and transformative constitutionalism’ (1998) 14 South
African Journal on Human Rights 146 153; D Moseneke ‘The fourth Bram Fischer
memorial lecture: Transformative adjudication’ (2002) 18 South African Journal on
Human Rights 309 314, 318-319; M Pieterse ‘What do we mean when we talk about
transformative constitutionalism?’ (2005) 20 SA Public Law 155.
See sec 8(1)-(2) of the Constitution.
101
This, importantly, enhances accountability and public deliberation over
matters of resources.33
The impact of rights as substantive directives for resource allocation
and appropriation policies and processes, in principle, extends right to the
upper tier of resource allocation and appropriation decisions. For instance,
the constitutional presence of justiciable socio-economic rights impacts on
budgeting and intergovernmental fiscal relations by, first, requiring that
relevant processes duly consider the state's socio-economic constitutional
obligations and enable compliance therewith, and, secondly, that resource
allocations aimed at satisfying such obligations be prioritised over other
forms of expenditure – on, for instance, defence, arts, or sports.34
Over and above the judicial process, accountability at this level in
South Africa is fostered, first, through section 214 of the Constitution,
which determines that budget allocations must take into account, inter
alia, the need to ensure effective basic service provision, developmental
needs and the legal obligations of provincial and local government, and,
secondly, through the South African Human Rights Commission's powers
to require financial arms of government to report on their endeavours in
pursuit of the progressive realisation of socio-economic rights, under
section 184(3) of the Constitution.35
More concretely, the normative standards contained within the
justiciable health-related rights in the Bill of Rights, themselves constitute
both a moral basis and a substantive benchmark for health-related resource
allocation and rationing policies and processes. The content that courts
award to these rights, in the course of adjudicating disputes involving
them, will therefore impact significantly on the relevant resource
prioritisation processes and practices.36 For instance, constitutional health
rights may be interpreted to require that resource-allocation decisions
prioritise the satisfaction of certain vital and urgent needs, or the needs of
particularly vulnerable sectors of society, over others.37
33
34
35
36
37
See Syrett (n 4 above) 222-223, 236-238, arguing that a South African style conception
of ‘law as justification’ would be useful to adopt in pursuing accountability for health
resource rationing in the UK.
See K Creamer ‘Finance and the realisation of socio-economic rights: Analysing the
Human Rights Commission's s 184(3) review of the financial authorities’ in Centre for
Human Rights Report on the realisation of socio-economic rights (2000) 13 13, 18, 21.
See C Barberton ‘Paper tigers? Resources for socio-economic rights’ (1999) 2 ESR
Review 6 8; Creamer (n 34 above) 14.
P Carstens & D Pearmain Foundational principles of South African medical law (2007) 118119; Daniels (n 13 above) 314-315; S Liebenberg Socio-economic rights: Adjudication
under a transformative constitution (2010) 142.
On these prioritising dimensions of socio-economic rights generally, see D Bilchitz
‘Towards a reasonable approach to the minimum core: Laying the foundations for
future socio-economic rights jurisprudence’ (2003) 19 South African Journal on Human
Rights 1 11-12; WA Landman & LD Henley ‘Rationing and children’s constitutional
health-care rights’ (2000) 19 South African Journal of Philosophy 41 42; S Liebenberg
‘The value of human dignity in interpreting socio-economic rights’ (2005) 21 South
African Journal on Human Rights 1 15, 18, 22; D Moellendorf ‘Reasoning about
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Chapter 4
To further illustrate this, it is useful to consider a number of possible
interpretations of the health-related rights in the South African
Constitution, such as those that prevail in international law – to which
courts must refer in interpreting the rights in the Bill of Rights, in terms of
s 39(1) of the Constitution38 – or those that have through the years been
mooted in the literature.
4.3.1
Possible normative directives embodies by health-related rights
in the South African Constitution
Section 27(1)(a) of the Constitution determines that ‘everyone has the right
to have access to health care services, including reproductive health care’.
The extent to which this right can be enforced at any given time is limited
by the proviso in section 27(2) that ‘the State must take reasonable
legislative and other measures, within its available resources, to achieve
the progressive realisation of [the right]’. Whereas the entitlement
conferred by section 27(1)(a) is admittedly broad and open-ended, the
provision may seemingly uncontroversially be interpreted to impose
certain priorities in relation to resource allocation and appropriation.
For instance, section 27(1)(a)'s determination that 'everyone' is entitled
to access health care services may be understood to indicate that resource
allocation and rationing decisions may not be unfairly discriminatory and
should adhere to the dictates of the right to equality, substantively
understood.39 This is not to say that policies which structure differential
access to particular health care services between individuals or classes of
persons will never be constitutionally justifiable,40 but does require such
policies to be grounded in justifiable medical criteria, to be demonstrably
37
38
39
40
resources: Soobramoney and the future of socio-economic rights claims’ (1998) 14 South
African Journal on Human Rights 326 332; C Scott & P Alston ‘Adjudicating
constitutional priorities in a transnational context: A comment on Soobramoney’s
legacy and Grootboom’s promise’ (2000) 16 South African Journal on Human Rights 206
244-245, 252.
The content and implications of the right to health in international law was discussed
in chapter 1 at 1.3.1.
(Art 12 of the Covenant) (2000) paras 18-19. See further P de Vos ‘Grootboom, the right of
access to housing and substantive equality as contextual fairness’ (2001) 17 South
African Journal on Human Rights 258 265-266; C Ngwena ‘Access to health care as a
fundamental right: The scope and limits of section 27 of the Constitution’ (2000) 25
Journal for Juridical Science 1 3, 7-9, 27.
See, for instance, arguments advanced by V Black et al ‘The constitutional justification
and the ethical arguments for granting enhanced HIV treatment for selected priority
groups in South Africa's antiretroviral treatment programme’ (2011) Tydskrif vir die
Suid-Afrikaanse Reg 496, in relation to diffferentiated early access to HAART therapy
by different ‘categories’ of HIV-positive persons.
103
unrelated to stereotypes, stigma and group-based discrimination,41 and to
have due regard for individual health needs, especially amongst members
of socially vulnerable groups. The notion of equality as encompassing ‘full
and equal enjoyment of all rights and freedoms’,42 further requires that
everyone has equally meaningful and beneficial access to relevant health
care services, rather than equally inadequate access.43
As to the extent of the entitlement of access to care, if the notion
‘health care services’ is interpreted to include primary, secondary as well
as tertiary health care services, an argument may further be made that,
much as policies which privilege access to expensive tertiary care for a few
at the cost of access to primary care for many others are unlikely to pass
constitutional muster,44 resource allocation or rationing processes may
also not simply sacrifice the availability of high-level, specialised and
expensive care in the interests of cost-effectiveness.45 When read with the
obligation of the state to ‘respect’ the rights in the Bill of Rights in section
7(2) of the Constitution, section 27(1)(a) may further be understood to
require that resource allocation and rationing decisions respect existing
access to health care services and that they may therefore not have the
effect of unjustifiably obstructing or diminishing such access – by, for
instance, directing resources away from the provision of services to which
patients already have access.46 Similarly, the provision's explicit mention
41
42
43
44
45
46
On how stigmatised notions of individual ‘worthiness’ of care may impact on resource
allocation and policy decisions and hence unfairly deny access to care see, for instance,
M Pieterse ‘'Impeding access? Stigma, individual responsibility and access to postHIV-exposure-prophylaxis (PEP) in South Africa’ (2011) 30 Medicine & Law 279 281282.
As per sec 9(2) of the Constitution.
This relates to philosophical arguments that the principle of equality should not
operate, in rationing disputes, to demand or allow for a situation of ‘equality of the
graveyard’. See, for instance, D Bilchitz ‘Is the Constitutional Court wasting away the
rights of the poor? Nokotyana v Ekurhuleni Metropolitan Municipality’ (2010) 127 South
African Law Journal 591 603-604.
See E Durojaye ‘Monitoring the right to health and sexual and reproductive health at
the national level: Some considerations for African governments’ (2009) 42
Comparative International Law Journal of South Africa 227 250.
Accordingly, Landman & Henley (n 37 above) 43-47 contend for the adoption of ‘nonabandonment’ of specialised care as a rationing principle, in relation to the provision
of health services to children.
See UNCESCR General Comment 14 (n 39 above) paras 33-34, 50; AR Chapman
‘Core obligations related to the right to health and their relevance for South Africa’ in
D Brand & S Russell (eds) Exploring the core content of socio-economic rights: South African
and international perspectives (2002) 35 46; DM Chirwa ‘The right to health in
international law: Its implications for the obligations of state and non-state actors in
ensuring access to essential medicine’ (2003) 19 South African Journal on Human Rights
541 559, 564; Liebenberg (n 29 above) 163, 178; K Pillay ‘South Africa’s commitment
to health rights in the spotlight: Do we meet the international standard?’ in Brand &
Russell (this note) 61 67. See, however, S Liebenberg ‘Grootboom and the seduction of
the negative/positive duties dichotomy’ (2011) 26 SA Public Law 37, who warns that a
judicial preference for vindicating negative, rather than positive, obligations may mean
that upholding the obligation to respect whilst adopting a more deferent approach in
relation to the obligations to protect, promote and fulfill may be countertransformative in that it is geared towards preserving the status quo and thus to
entrenching existing unequal access to socio-economic rights.
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of reproductive health care services may be read to indicate that resource
allocation processes should prioritise the facilitation of access to such
services.
Moreover, it is possible to interpret section 27(1)(a), in accordance
with international law, as imposing a 'minimum core obligation' on the
state, which would require of budgeting and rationing processes, for
instance, to prioritise access to minimum essential health services that are
necessary to ensure human survival, such as primary health care services,
immunisation against major infectious diseases and access to essential
drugs, as defined by the World Health Organization (WHO).47 Aligning
section 27(1)(a) with a minimum core understanding of the right to health
in international law could therefore infuse the provision with the valueladen rationing directives inherent in the WHO's definition of terms such
as 'primary health care' and 'essential drugs', while simultaneously leaving
scope for the further elaboration of these terms at local political or
functional levels.
From the above, it is clear that there are a variety of different ways in
which the courts may interpret section 27(1)(a), and that the provision's
guiding impact on resource allocation, distribution and appropriation
policies and processes will therefore, to a large extent, depend on which
aspects of the right courts choose to emphasise.48 The extent of this impact
will further turn on how such interpretation links to content given to the
determination in section 27(2) that the right of access to health care must
be realised progressively, within available resources.
Apart from limiting the state's obligation in terms of the right of access
to health care to what can be done within prevailing resource constraints,
and thereby carving down the ambit of the enforceable entitlement in
section 27(1)(a), the resource-limitation contained in section 27(2) appears
to also provide a constitutional basis for health rationing decisions, by
acknowledging that resource scarcity may sometimes justify the nonsatisfaction of particular health-related needs, particularly in the short
term. However, rather than to isolate rationing decisions from judicial
scrutiny, this acknowledgment indicates that rationing and resource
47
48
See, for example, UNCESCR General Comment 3: The Nature of State Parties’ Obligations
(Art 2, para 1 of the Covenant) (1990) para10; UNCESCR General Comment 14 (n 39
above) paras 43-44; WHO Declaration of Alma-Ata (1978) para VI. On the implications
of a ‘minimum core approach’ to sec 27(1)(a), see further Bilchitz (n 37 above) 11-18;
Bollyky (n 29 above) 184; Chapman (n 46 above) 35, 37, 54; Liebenberg (n 37 above)
15, 18, 22; M Pieterse ‘Resuscitating socio-economic rights: Constitutional
entitlements to health care services’ (2006) 22 South African Journal on Human Rights
473 479-484; Scott & Alston (n 37 above) 227, 250.
This fact is often used to justify judicial caution in this regard – see, for instance, R
Dixon ‘Creating dialogue about socio-economic rights: Strong-form versus weak-form
judicial review revisited’ (2007) 5 International Journal of Constitutional Law 391 401402.
105
allocations decisions may be probed for adherence to the moral
imperatives embodied by section 27(1)(a).49
If this is accepted, then the meaning that courts award to the concepts
in section 27(2) will also determine the extent of the state's constitutional
responsibilities when it comes to the distribution of health-related
resources. For instance, if the resource limitation in section 27(2) is
interpreted in accordance with the prevailing international law standard,
namely that states must realise socio-economic rights within the maximum
of their available resources, it may, for example, be understood to require
that the state harness and control private resources under its jurisdiction in
pursuit of the realisation of the right – by, for example, channelling
resources that are currently restricted to the private health sector towards
the public health system – or that the state must procure necessary
additional resources through, for instance, requesting international
assistance, or increasing domestic taxation.50
Much would further turn on the content awarded to the concept
‘resources’. First, whether the concept is given a wide or narrow meaning
will determine the levels at which resource allocation and rationing
processes can be scrutinised for adherence to the substantive dictates of
section 27(1)(a). If, for example, the concept is interpreted broadly, so as
to extend beyond individual budget line items, to encompass the totality of
resources available to the state, this would mean that all resource
allocation decisions – up to and including, for instance, the annual
determination of the national budget – can be subjected to such rightsbased scrutiny.51 Secondly, if the concept was to be interpreted to include
not only financial resources but also human, infrastructural, organisational
49
50
51
Dhai & Etheridge (n 11 above) 146. On the link between rationing and the notion of
‘access’ to care, see Carstens & Pearmain (n 36 above) 118-119.
On these and other implications of the international standard, which derives from the
wording of the resource limitation in art 2(1) of the ICESCR see, for example,
UNCESCR General Comment 3 (n 47 above) paras 11, 14; Principle 26 of the Limburg
Principles on the Implementation of the International Covenant on Economic, Social and
Cultural Rights UN Doc E/CN 4/1987/17/Annex (1987); MCR Craven The
International Covenant on Economic, Social, and Cultural Rights: A perspective on its
development (1995) 132-133, 137, 145; S Liebenberg ‘The International Covenant on
Economic, Social and Cultural Rights and its Implications for South Africa’ (1995) 11
South African Journal on Human Rights 359 366; RE Robertson ‘Measuring state
compliance with the obligation to devote the “maximum available resources” to
realizing economic, social and cultural rights’ (1994) 16 Human Rights Quarterly 693
699-700, 712. Authors arguing for a similar interpretation of the resource specification
in sec 27(2) of the Constitution have included D Bilchitz ‘Health’ in S Woolman et al
(eds) Constitutional law of South Africa (2ed, 2005) Ch 56A 45; Creamer (n 34 above) 21;
C Heyns & D Brand ‘Introduction to socio-economic rights in the South African
Constitution’ (1998) 2 Law, Democracy & Development 153 159-60; Scott & Alston (n 37
above) 253, 262-263, G van Bueren ‘Alleviating poverty through the Constitutional
Court’ (1999) 15 South African Journal on Human Rights 52 58-60.
For arguments in favour of such an interpretation see, for instance, Barberton (n 35
above) 7; Bilchitz (n 50 above) 43-44; P de Vos ‘Pious wishes or directly enforceable
human rights?: Social and economic rights in South Africa’s 1996 Constitution’ (1997)
13 South African Journal on Human Rights 67 98; Moellendorf (n 37 above) 330-332; Van
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and technological resources,52 a number of non-financial rationing
processes and policies – for instance, decisions on the geographical
distribution of health care facilities, professionals and high-tech equipment
– would also be brought within the provision's ambit.53
Furthermore, it is arguably also significant that the Constitution grants
a number of other health-related rights that do not contain a resourcerelated limitation, or a standard of progressive realisation, similar to that
in section 27(2). These include the right not to be refused emergency
medical treatment in section 27(3), the right of children to basic health-care
services in section 28(1)(c) and the right of detained persons to adequate
medical treatment at state expense in section 35(2)(e) of the Constitution.
It may be argued that the absence of a resource-limitation in these
provisions indicate that immediate provision of the health services that
they imply should enjoy priority over the progressive provision of other
services covered only by the generic right of access to care.54 Moreover, a
generous and purposive interpretation of the right to life in section 11 of the
Constitution could invite similar conclusions in relation to resource
distribution or rationing outcomes which threaten the survival of
patients.55
Clearly, then, the kind of content that courts award to health-related
provisions in the Constitution will have a significant guiding impact on
policies and processes that determine the amount of resources available
towards the realisation of these rights, as well as the manner in which such
resources are appropriated towards competing health needs. This guiding
role will therefore depend quite closely on the willingness of courts to
51
52
53
54
55
Bueren (n 50 above) 63. This is further consistent with the interpretation of the
resource limitation in art 2(1) of the ICESCR – see Craven (n 50 above) 137; Robertson
(n 50 above) 698.
As motivated by, for instance, Robertson (n 50 above) 704; Van Bueren (n 50 above)
61-62.
For further examples of how rationing of non-financial resources impact on enjoyment
of the right to have access to health care services in this context, see R Gaigher ‘The
political pathology of health care policy in South Africa’ (2000) 32 Acta Academica 44
49-51, 55-56; SAHRC (n 28 above) 25-26; 39.
For similar arguments in relation to sec 27(3) see Liebenberg (n 29 above) 163; Scott &
Alston (n 37 above) 251; F van Oosten ‘Financial resources and the patient’s right to
health care: Myth and reality’ (1999) 32 De Jure 1 13. In relation to sec 28(1)(c), see
P de Vos ‘The economic and social rights of children and South Africa’s transitional
Constitution’ (1995) 10 SA Public Law 233 255-256; Landman & Henley (n 37 above)
42-43; Scott & Alston (n 37 above) 230, 258-260; Van Bueren (n 50 above) 55-59; F
Viljoen ‘Children’s rights: A response from a South African perspective’ in Brand &
Russell (n 46 above) 201 203, 205-06. In relation to sec 35(2)(e), see E de Wet The
constitutional enforceability of economic and social rights: The meaning of the German
constitutional model for South Africa (1996) 110; JC Mubangizi ‘Public health, the South
African Bill of Rights and the socio-economic polemic’ (2002) Tydskrif vir die SuidAfrikaanse Reg 343 349.
See David O’Sullivan ‘The allocation of scarce resources and the right to life under the
European Convention on Human Rights’ (1998) Public Law 389 394-395; M Pieterse
‘A different shade of red: Socio-economic dimensions of the right to life in South
Africa’ (1999) 15 South African Journal on Human Rights 372 374-375, 379, 384-385;
Scott & Alston (n 37 above) 251-252, 255.
107
engage and elaborate the content of the constitutional rights and
obligations concerned.56 This means that much will turn on the level of
scrutiny to which courts are prepared to subject socio-economic laws and
policies in cases where breaches of socio-economic rights are alleged and,
in particular, on the extent to which they are prepared to engage with the
limits placed by resource scarcity on the extent to which socio-economic
rights can be enforced at any given time.57
4.3.2
Institutional obstacles to providing normative resource-related
directives through the courts
As alluded to previously, the most decisive obstacle faced by courts, in
articulating standards to which resource allocation and distribution
policies and processes must adhere and in scrutinising challenged laws,
policies and decisions against these substantive standards, is the operation
of the doctrine of separation of powers in relation to budgetary and
financial decision-making. Under most conceptions of the doctrine, such
decision-making is portrayed as the exclusive territory of the political
branches of state. Courts are thought to lack the majoritarian backing,
appreciation for the polycentric consequences of budgetary decisions and
the financial expertise that is required to participate in such decisions.
They are accordingly cautioned to exercise significant restraint when
budgetary or financial decisions come before them and to defer to the
wisdom of those primarily responsible for these decisions.58
When it comes to the rationing of resources for health care, matters are
further complicated by the fact that rationing decisions are by their nature
polycentric – in that every subtle variation of a rationing decision may have
a significant impact on the interests of a potentially vast number of
potential recipients of medical care59 ‒ the fact that the substantive
principles according to which rationing processes are directed and
scrutinised are bound to be the subject of significant public contestation60
and the fact that that they tend to involve a degree of clinical medical
judgment which, given courts’ obvious lack of relevant scientific
knowledge and training, is normally understood to require a significant
degree of judicial deference.61 Precisely because courts’ pronouncements
on the meaning of the relevant constitutional rights will have the effect of
56
57
58
59
60
61
See Chetty (n 6 above) 458; Davis (n 6 above) 489; Pieterse (n 4 above) 393-394, 408
Parkin (n 10 above) 874. I have discussed the difficulties relating to the involvement of
courts in polycentric matters elsewhere – see Pieterse (n 4 above) 392-395.
Dixon (n 48 above) 401-402.
See Hall (n 16 above) 715; Hall & Anderson (n 26 above) 1650, 1675; C Ngwena
‘Access to health care and the courts: A note on Minister of Health v Treatment Action
Campaign’ (2002) 17 SA Public Law 463 470; Orentlicher (n 16 above) 51-52, 59, 61-62,
71; Parkin (n 10 above) 870, 877; Scott & Alston (n 37 above) 243.
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substantively restricting the ways in which the state may allocate and
distribute resources between competing health needs, they are therefore
required to exercise significant caution in this regard.
However, since the extent to which socio-economic rights may be
enforced at any given time is circumscribed by the resources at the state's
disposal, as well as by the manner in which functionaries and health care
professionals dispose of such resources, the justiciability of socio-economic
rights means that some form of scrutiny of financial, budgetary and
rationing decisions, however limited, is both unavoidable and necessary.
Absolute deference to the financial and budgetary decisions of the political
branches, or to the rationing decisions of health administrators or medical
professionals, would have the effect of awarding them limitless discretion
over the manner in which resources are appropriated in order to satisfy
constitutional obligations. This would drain socio-economic rights of their
remedial potential, since it would mean that the state could justify every
instance of non-compliance with socio-economic rights by asserting
resource-scarcity or, more cynically, could shirk its constitutional
responsibilities by allocating minimal funds to the realisation of socioeconomic rights.62 Such boundless discretion would also significantly
complicate the meaningful scrutiny of rationing decisions, since it would
preclude courts from probing the 'fact' of resource scarcity underlying such
decisions, hence obscuring the bases and criteria for rationing decisions
and diminishing the accountability of rationing actors.63
The challenge, therefore, is to arrive at an appropriate balance between
judicial deference and vigilance that appreciates courts' real limitations
without overly restricting the important normative dimensions of the rights
that they are called upon to enforce. At least, courts should not simply
accept assertions of resource-scarcity by executive officials or rationing
actors, without enquiring into the accuracy thereof. Where resources are
woefully inadequate to meet constitutional obligations, where budgeting
and rationing processes fail to reflect constitutional priorities and where
resources are misappropriated or misspent, courts must say so and must
insist on remedial action.64 It must be remembered that courts' lack of
qualification to themselves engage in budgeting or financial policy-making
does not render them ill-equipped to scrutinise budgetary or financial
62
63
64
See Bilchitz (n 50 above) 44; Creamer (n 34 above) 23; De Vos (n 51 above) 97;
Ferreira (n 11 above) 293-294; S Liebenberg ‘The right to social assistance: The
implications of Grootboom for policy reform in South Africa’ (2001) 17 South African
Journal on Human Rights 232 255; Liebenberg (n 36 above) 195-197; Ngwena (n 39
above) 7; J Sarkin ‘Health’ (1997/8) 8 SA Human Rights Yearbook 97 103; Syrett (n 4
above) 243.
See A Govindjee & M Olivier ‘Finding the boundary - The role of courts in giving
effect to socio-economic rights in South Africa’ (2007) 21 Speculum Juris 167 176;
Moellendorf (n 37 above) 332.
Barbeton (n 35 above) 6-8; Ferreira (n 11 above) 293; Liebenberg (n 36 above) 197-198.
109
policies for adherence to constitutional directives.65 Their challenge is to
devise appropriate standards of review that grant a sufficient margin of
discretion to decision-makers, while demanding appropriate justification
for infringements of constitutional rights. Moreover, in instances where
such justification is not forthcoming, it must be remembered that the
budgetary and policy repercussions of judicial interventions cannot in and
of themselves prohibit courts from complying with their constitutional
obligation to award appropriate relief for infringements of the Bill of
Rights.66
4.4 Assessing the impact of South African human
rights jurisprudence on health budgeting and
financing
In the light of the above, South African courts in the early constitutional
era were understandably extremely cautious when having to negotiate
socio-economic policy terrain, in particular in contexts of resource
scarcity. Early indications were that socio-economic rights' perceived
resource intensity would significantly limit the extent to which courts
would be willing to enforce them.
Prior to the Constitutional Court's first socio-economic rights decision,
two high court judgments took resource availability into account in
deciding upon the extent of health-related rights. In Collins v Administrator,
Cape, the Cape High Court held that the standard of medical care to which
people are entitled in the context of medical negligence claims had to be
determined with reference to prevailing resource constraints. A baby
suffered severe and irreversible brain damage when her tracheostomy tube
became displaced at a time when only one of two allocated nurses, who
was unable to replace it correctly, was present in the high care ward where
she was being treated. In deciding whether the hospital was liable for
damages, the court decided that a hospital authority could not be expected
to render a standard of care that was palpably beyond its financial and
human resource capacity, and that the question of negligence had to be
determined with reference to whether or not it was reasonable for the
hospital to allocate its limited nursing staff in the way that it did.67 In the
65
66
67
See Ferreira (n 11 above) 293; Govindjee & Olivier (n 63 above) 177; Pieterse (n 4
above) 408-409 and authorities cited there; C Steinberg ‘Can reasonableness protect
the poor? A review of South Africa’s socio-economic rights jurisprudence’ (2006) 123
South African Law Journal 264 281; Syrett (n 4 above) 241-242.
On the factors to be taken into account in balancing competing institutional and
constitutional tensions in this context, see generally Bollyky (n 29 above) as well as
Govindjee & Olivier (n 63 above) 181-182.
Collins v Administrator, Cape 1995 (4) SA 73 (C) 81I-82D, 83F-G. For discussion of the
judgment in the context of the right to have access to health care services, see Van
Oosten (n 54 above) 8.
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circumstances, the hospital was found to have been negligent and,
accordingly, liable.
In Van Biljon v Minister of Correctional Services, the Cape High Court
ordered that, in terms of prisoners’ right to adequate medical treatment at
state expense under section 35(2)(e) of the Constitution, two HIV-positive
prisoners had to be provided with the anti-retroviral drug AZT, which had
been medically prescribed to them. The Court was not prepared to make a
similar finding in relation to two further applicants, who had not been
prescribed the drug, as it was not prepared to second-guess the medical
decision as to whether to prescribe the treatment.68 In deciding whether
the non-provision of the drug to the first two applicants fell foul of section
35(2)(e), the court found that the question of whether a particular form of
medical treatment could be regarded as 'adequate' in terms of the provision
had to be decided with reference to, amongst other factors, its cost in
relation to its effectiveness. Since there was no less expensive but
sufficiently effective treatment available at the time, and since the state
could not show that it could not afford to provide the two applicants with
the treatment, it was held to fall within the scope of the applicants’
entitlement.69
While generally lauded for the manner in which it vindicated the
applicants' right to receive treatment, the Van Biljon judgment was
nevertheless criticised for viewing the affordability of treatment as a factor
impacting on the scope of the right to medical care in prison, rather than
as placing a limit on its enjoyment, which would have required
justification in terms of section 36 of the Constitution if it was to pass
constitutional muster.70 Nevertheless, Van Biljon highlights important
considerations pertaining to the cost-effectiveness of particular forms of
treatment, which need to feature somewhere in judicial deliberations over
access to medical care.
The Constitutional Court's first socio-economic rights matter,
Soobramoney v Minister of Health (KwaZulu-Natal), presented it with a classic
health resource rationing ‘dilemma’. The crux of the matter was that the
hospital in question did not possess sufficient resources to provide kidney
dialysis to all who required it and thus felt compelled to devise
‘admissibility criteria’ which regulated access to the treatment.
The Court rejected Mr Soobramoney’s arguments that these criteria –
which determined that dialysis would be provided only to patients whose
conditions could be cured thereby, or who were clinically eligible for a
kidney transplant, thereby excluding Mr Soobramoney, whose condition
68
69
70
Van Biljon v Minister of Correctional Services 1997 (4) SA 441 (C) paras 33-37, 61.
Paras 49-50, 60.
See for instance F Mdumbe ‘Socio-economic rights: Van Biljon versus Soobramoney’
(1998) 13 SA Public Law 460 462-463; Van Oosten (n 54 above) 10.
111
was chronic and whose general state of health ruled out the possibility of a
transplant – violated his rights to life and not to be refused emergency
medical treatment, holding that neither of the alleged rights were
applicable to the matter. This was respectively because the Court was not
prepared to interpret the right to life in a manner that would require the
privileging of treatment for life-threatening diseases over the provision of
other forms of care and because Mr Soobramoney’s condition was chronic
and did not constitute a medical emergency.71 Instead, the Court held that
the matter had to be decided on the basis of the right of access to health
care services under section 27(1)(a) of the Constitution. The ambit of this
right, in turn, had to be understood with reference to the resource
specification in section 27(2) of the Constitution.72 The Court found that
the ‘admissibility criteria’ – which were devised jointly by hospital
administrators and doctors – were necessitated by severe resource
shortages at the hospital’s renal unit, which were in turn occasioned by
shortages in, first, the general hospital budget and, secondly, the budget of
the provincial health department.73
Reiterating the view expressed by the British Court of Appeal in R v
Cambridge Health Authority, ex Parte B that courts are ill equipped to secondguess the ‘difficult and agonising’ decisions taken by health care
professionals and administrative officials in such circumstances,74 the
Court stated:
The provincial administration which is responsible for health services in
KwaZulu-Natal has to make decisions about the funding that should be made
available for health care and show how such funds should be spent. These
choices involve difficult decisions to be taken at the political level in fixing the
health budget, and at the functional level in deciding upon the priorities to be
met. A court will be slow to interfere with rational decisions taken in good
faith by the political organs and medical authorities whose responsibility it is
to deal with such matters.75
Given that the admissibility criteria were rational, had been devised and
applied in good faith and aimed to maximise effective access to the
available treatment, and since the appellant did not suggest that the criteria
were unreasonable or were applied unfairly or irrationally, they were
found to pass constitutional muster.76
The Soobramoney decision has, through the years, attracted a wide
range of criticism. First, the Court appeared unwilling to engage
substantively with the meaning of the rights implicated in the matter.
71
72
73
74
75
76
Soobramoney v Minister of Health (KwaZulu-Natal) 1997 (4) SA 765 (CC) paras 11, 18-21.
Paras 22, 30.
Para 24.
Para 30; quoting R v Cambridge Health Authority (n 14 above) 137d-f.
Para 29.
Para 25. See also para 58.
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While it perhaps had good reason to exclude the rights to life and
emergency treatment from application in this case – since the claim was for
life-prolonging, rather than life-saving, treatment and since the appellant's
chronic condition could not be said to constitute a medical emergency77 ‒
its unwillingness to interpret these rights as requiring the state to prioritise
the provision of certain forms of medical treatment over others did betray
a distinct discomfort with the ‘prioritising dimensions’ of socio-economic
rights. This is unfortunate, as unwillingness to engage with the extent to
which the text of the Constitution appears to mandate heightened concern
for the protection of certain interests could significantly diminish the
extent to which the rights in the Constitution may themselves substantively
guide resource allocation and rationing processes.78
Disconcertingly, apart from acknowledging that the exclusion of the
appellant from access to treatment was indicative of the inequality that the
constitutional order aimed to eradicate79 and from a remark in a minority
judgment that the notion of ‘resources’ had to be understood as
encompassing also human and technological resources,80 the Court also
declined to award any meaningful substantive content to the right of access
to health care services, which was at the crux of the matter. Instead, it
focused only on the manner in which enjoyment of this right was restricted
by the lack of resources. As with the Cape High Court decision in Van
Biljon, the Constitutional Court seemed to view resource constraints as
inherently restricting the ambit of the right of access to care, rather than as
placing limits on the enjoyment of the right, which would require
constitutional justification.81
This failure to substantively interpret section 27(1)(a) of the
Constitution meant that the Court did not test the challenged admissibility
criteria, or the process by which they were applied in Mr Soobramoney's
case, against substantive constitutional standards.82 Instead, it assessed the
admissibility criteria for rationality and bona fides, by any account fairly
timid standards of review, which focus far more on process than on
substance. What is more, the Court appears to have assumed the
rationality and bona fides of the criteria, simply because the appellant did
not assert the contrary. Its limited scrutiny of the criteria was probably
understandable, given the limited information before it and since the
77
78
79
80
81
82
Paras 21, 57 as well as commentary by, for instance, Moellendorf (n 37 above) 327328; M Pieterse ‘Enforcing the right not to be refused emergency medical treatment:
Towards appropriate relief ’ (2007) 18 Stellenbosch Law Review 75 83.
Pieterse (n 1 above) 527; Scott & Alston (n 37 above) 219, 244-245, 252; S Wilson & J
Dugard ‘Constitutional jurisprudence: The first and second waves’ in M Langford et al
(eds) Socio-economic rights in South Africa: Symbols or substance? (2014) 35 38. See also,
more broadly, Parkin (n 10 above) 873-874; Syrett (n 15 above) 318-321.
Soobramoney (n 71 above) paras 8, 31.
Soobramoney (n 71 above) para 43.
Bilchitz (n 50 above) 9.
Liebenberg (n 36 above) 141. See also Sarkin (n 62 above) 101; Van Oosten (n 54
above) 17.
113
criteria were mostly based on clinical factors and were devised, in the
interests of enhancing meaningful access to care, by individuals who were
themselves powerless to alter the amount of resources available to satisfy
the competing claims before them.83 But the almost non-existent burden of
proof that the state had to satisfy in claiming that there were not sufficient
resources to provide Mr Soobramoney with the treatment he requested, is
problematic. This is because it provides almost no space for deliberation
over the substantive issues at stake when resource scarcity demands the
sacrifice of certain needs in favour of others.84 Furthermore, the Court's
resort to the review standards of rationality and bona fides, which imply a
level of functional deference typically associated with matters involving
clinical medical decisions,85 in evaluating the constitutionality of these
criteria may perhaps be accused of obscuring the non-clinical factors that
impacted on the decision-making process and thus of failing to insist on
sufficient accountability for everybody involved.
More fundamentally, the Court's scrutiny was limited only to the
parameters of the ‘tragic choice’ that had to be taken by staff at the
particular hospital, whereas the constitutional compliance of the legion of
political, budgetary, and administrative decisions that shaped the contours
of this choice was either assumed or left unquestioned. By depicting the
resource scarcity which necessitated the formulation of the admissibility
criteria as a natural, rather than a political fact, the Court insulated these
decisions from even the relatively timid level of scrutiny which it was
willing to employ in the circumstances.86 The Court's conflation of the
functional rationing decision with these preceding political rationing
decisions betrays an overly narrow understanding of the concept ‘available
resources’ in section 27(2) of the Constitution and allows for a simple
assertion of scarcity to trump any rights-based challenge against rationing
decisions.87
Further still, the Court's limited focus did not hinder it from referring,
in the abstract, to the overall scarcity of resources in South Africa and to
the many competing health-related and other claims for access to resources
83
84
85
86
87
See K Chetty ‘The public finance implications of recent socio-economic rights
judgments’ (2002) 6 Law, Democracy & Development 231 249; P Lenta ‘Judicial
deference and rights’ (2006) Tydskrif vir die Suid-Afrikaanse Reg 456 464-465; Liebenberg
(n 36 above) 140-141, 195; JC Mubangizi ‘The constitutional right of access to health
care services in South Africa: From renal dialysis to Nevirapine’ (2003) 24 Obiter 203
211-212.
On the appropriateness of rationality as review standard for clinical medical decisions
see, for instance, Hall (n 16 above) 715; Orentlicher (n 16 above) 51-52, 59, 61-62, 71;
Parkin (n 10 above) 870, 877.
See C Ngwena ‘Aids in Africa: Access to health care as a human right’ (2000) 15 SA
Public Law 1 15; Sarkin (n 62 above) 101-102; J Sarkin ‘A review of health and human
rights after five years of democracy in South Africa’ (2000) 19 Medicine & Law 287 293;
Van Oosten (n 54 above) 17.
Barberton (n 35 above) 7; Liebenberg (n 36 above) 192; Moellendorf (n 37 above) 331332; Scott & Alston (n 37 above) 239.
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that the state has to meet within limited budgets, in justifying its dismissal
of the claim.88 Craig Scott and Philip Alston warn against invoking and
endorsing such utilitarian justifications, arguing that such reasoning could
lead to a situation where
[t]he individual is quickly sacrificed to the amorphous general good on this
kind of reasoning which, if taken all the way, would preclude virtually any
adjudication of a claim to resources as enjoying constitutional priority over
other claims.89
The above shortcomings notwithstanding, the Soobramoney decision can be
credited for placing the hitherto exclusively political issue of healthresource distribution squarely within the public and legal domain and for
significantly enhancing public deliberation around the issue.90 As Keith
Syrett observed:
Albeit extremely tentatively, [Soobramoney] may be viewed as establishing a
framework within which scrutiny could be exercised on the basis of the
justifications and evidential support proffered by the decision-maker, thereby
clearing the path for the creation of a deliberative space within the courtroom,
and a potential judicial role as a catalyst for broader public and political
deliberation.91
The Constitutional Court’s next socio-economic rights decision,
Government of the RSA v Grootboom,92 is today best known for being the case
in which the Court first developed its ‘reasonableness’ approach to socioeconomic rights adjudication. Grootboom was a housing case, but the
reasonableness approach developed there was soon to be applied to the
right of access to health care services in Minister of Health v Treatment Action
Campaign (No 2),93 in which the Court famously found that the state's
policy of restricting the availability of the drug Nevirapine for purposes of
preventing mother-to-child-transmission of HIV to a limited number of
‘research and training’ sites in the public health sector, was
unconstitutional.
In both cases, the Court continued to shy away from interpreting the
socio-economic rights in the Constitution in a way that would require the
state to prioritise the allocation of resources towards the satisfaction of any
specific socio-economic need. In Grootboom, the Court refused to interpret
the right of access to housing as encompassing a minimum core obligation
88
89
90
91
92
93
Soobramoney (n 71 above) paras 28, 31.
Scott & Alston (n 37 above) 252-253. See also 241-244 as well as Liebenberg (n 36
above) 141.
On public reflection sparked by the judgment, see M Pieterse ‘Health, social
movements and rights-based litigation in South Africa’ (2008) 35 Journal of Law &
Society 364 386 as well as the newspaper reports cited there.
2001 (1) SA 46 (CC).
2002 (5) SA 721 (CC).
115
upon the state to provide rudimentary shelter to those who lack it,94 and
also declined to interpret section 28(1)(c) of the Constitution in a manner
that would prioritise the housing interests of children over the socioeconomic needs of the rest of the population.95 Then, in Treatment Action
Campaign, the Court emphatically rejected a minimum core interpretation
of section 27(1)(a) read with section 27(2) of the Constitution – which, due
to Nevirapine’s inclusion in the WHO’s list of ‘essential drugs’, would
have required the public sector availability of the drug as a matter of
immediate priority.96 These findings have been heavily criticised, not least
for minimising the potential of socio-economic rights to guide resource
allocation, appropriation and distribution policies and processes.97
It is clear, especially from Treatment Action Campaign, that the Court's
hesitance to engage in prioritising interpretation is primarily due to a fear
of overstepping institutional boundaries. In explaining its preference for its
reasonableness approach to socio-economic rights adjudication – which,
according to Grootboom, requires that policies aimed at the progressive
realisation of socio-economic rights must be balanced, coherent, flexible,
inclusive and transparent, must cater for emergency needs and may not
neglect the needs of the most vulnerable members of society98 ‒ over the
more interventionist minimum core approach, the Court indicated that it
was not prepared to ‘make the wide-ranging factual and political enquiries
necessary for determining what the minimum core standards … should be,
nor for deciding how public revenues should more effectively be spent’.99
To instead evaluate policy measures for reasonableness, the Court held,
was appropriate because ‘such determinations of reasonableness may in
fact have budgetary implications, but are not themselves directed at
rearranging budgets’.100 While the Court thus accepted that its socioeconomic rights judgments would often have budgetary consequences, it
was not prepared to either prescribe the temporal order in which socioeconomic needs had to be met, or to directly determine that specific
resources ought to have been allocated to a particular cause.101
94
95
96
97
Grootboom (n 92 above) paras 32-3.
Paras 71-78.
Treatment Action Campaign (n 93 above) paras 29, 35-9.
For some of this criticism, see Bilchitz (n 37 above); D Brand ‘The proceduralisation of
South African socio-economic rights jurisprudence, or “what are socio-economic
rights for?”’ in H Botha et al (eds) Rights and democracy in a transformative constitution
(2003) 33 36-37, 45-46, 49, 55; Liebenberg (n 29 above) 187; C Mbazira Litigating socioeconomic rights in South Africa: A choice between corrective and distributive justice (2009) 59;
Pieterse (n 47 above) 484-488; T Roux ‘Understanding Grootboom ‒ A response to Cass
R Sunstein’ (2002) 12 Constitutional Forum 41 at 46.
98 Grootboom (n 92 above) paras 42-46.
99 Treatment Action Campaign (n 93 above) para 37. See also Grootboom (n 92 above) para
41.
100 Treatment Action Campaign (n 93 above) para 38.
101 See Chetty (n 83 above) 236-238; Pieterse (n 4 above) 410; Roux (n 5 above) 97-98;
Syrett (n 4 above) 219. The Court's institutional self-conception corresponds to the
operation of the 'non-justiciability rule' in British public law, where discretionary
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But this does not mean that the Court's reasonableness approach is a
toothless one that allows the state simply to toll the bell of limited resources
in response to any claim that a socio-economic right had been infringed.
For all its faults, reasonableness certainly appears to be a far more robust
review standard than that applied in Soobramoney, perhaps signalling that
the Court is more comfortable with interrogating the effects of widely
applicable national policy (such as that under scrutiny in Grootboom), than
with second-guessing more constrained, micro-level rationing decisions
(such as that challenged in Soobramoney).
While the reasonableness inquiry in Grootboom and Treatment Action
Campaign steered clear of pronouncing on macro-economic issues and
apparently operated on an understanding of ‘available resources’ that was
limited to the national budget allocated to a specific sector,102 it
nevertheless insisted on accountability for resource allocation and
distribution. In order to be reasonable, the Court held, a policy or plan
must clearly allocate responsibilities between different spheres of
government and must ‘ensure that the appropriate financial and human
resources are available’ for its effective implementation,103 perhaps
signalling that policies will be found unreasonable where they are evidently
under-resourced.104 In keeping with the notion of progressive realisation,
the Court further held that reasonable policy had to balance short, medium
and long-term needs and had to ensure that financial obstacles to the
enjoyment of a right are lowered over time.105 In order to be reasonable,
policies must further plan and budget for the fulfilment of emergency and
urgent needs and need to ensure that they do not exclude the needs of
vulnerable members of society.106 While the Court remained vague as to
precisely how it would assess compliance with these obligations,107 they
clearly pose substantive requirements in relation to the budgeting and
costing of socio-economic policies and to expenditure in terms thereof.108
As to assertions of resource scarcity, the Treatment Action Campaign
decision makes it clear that these will only be entertained where they have
a clear factual basis. The Court rejected the government's claim that it
lacked the capacity – in other words, the human and operational resources
– to extend the availability of Nevirapine beyond research and training
sites, as the evidence clearly showed that such capacity indeed existed at
101 resource allocation is regarded as non-justiciable but decisions which impact on
resource distribution are permissible. See generally King (n 17 above) 197-199, 209218.
102 See Bilchitz (n 50 above) 10; Chetty (n 83 above) 236-238, 250.
103 Grootboom (n 92 above) para 39.
104 Ferreira (n 11 above) 278-279; Govindjee & Olivier (n 63 above) 176.
105 Grootboom (n 92 above) paras 43, 45.
106 Paras 43-44, 68.
107 Liebenberg (n 62 above) 255; Syrett (n 4 above) 226.
108 Bilchitz (n 50 above) 12; Chetty (n 83 above) 240-242; A Hassim ‘The cost of rights: Is
there a legal right to transparent and efficient budgeting?’ in J Berger & M Heywood
(eds) Section 27 Review April 2010 - December 2011 (2012) 45 49.
117
several sites.109 It also found that it was unnecessary to engage with
arguments pertaining to budget constraints, as it became clear during the
course of litigation that additional funds had been made available for the
purpose of extending the PMTCT programme.110 At the crux of the
Court's finding that the refusal to make Nevirapine available more broadly
was unreasonable, was the fact that to do so was demonstrably within the
resource capacity of the state.111
In non-health-related socio-economic rights cases decided subsequent
to Treatment Action Campaign, the Constitutional Court has gradually
become more assertive when faced with claims of resource scarcity in
defence of non-fulfilment of positive obligations. In Khosa and Mahlaule v
Minister of Social Development, the Court followed through on indications in
Grootboom that it would not tolerate policies which endorse social
exclusion even where remedying this would have significant budgetary
implications,112 when finding that the ambit of specific social security
legislation had to be extended to also make permanent residents eligible to
receive certain benefits, notwithstanding that this would require a notable
budget increase.113 The Court made this finding after careful consideration
of the budgetary implications of its remedy.114 It held that, resource
implications notwithstanding, criteria which limit eligibility for socioeconomic benefits may not be unfairly discriminatory and must be
reasonable. It further introduced a substantive element to the
reasonableness analysis in this respect, by determining that, in addition to
the availability of resources, the reasonableness of a policy which restricts
eligibility to social benefits must be assessed with reference to the
prohibition on unfair discrimination, as well as to the impact of exclusions
from eligibility on the enjoyment of other rights in the Bill of Rights, in
particular the rights to life and dignity.115
In Rail Commuters Action Group v Transnet t/a Metrorail, which involved
Transnet’s compliance with positive obligations flowing from the rights to
life, dignity and freedom and security of the person, in relation to the
physical safety of commuters on trains, the Constitutional Court found
that ‘a bald assertion of resource constraints’ will not be sufficient to
absolve an organ of state from its responsibilities in this regard, which had
to be carried out ‘reasonably’. It rejected Transnet’s assertion that it lacked
the resources to ensure adequate security on its passenger trains, holding
that, where an organ of state attempts to justify non-compliance with a
109 Treatment Action Campaign (n 93 above) para 66 ‒ see also Ferreira (n 11 above) 280;
110 Treatment Action Campaign (n 93 above) paras 116-117, 120.
111 Ibid para 80 ‒ see also Black et al (n 40 above) 498; Govindjee & Olivier (n 63 above)
179.
112 Grootboom (n 92 above) paras 43-44; see Chetty (n 83 above) 241-242.
113 Khosa v Minister of Social Development; Mahlaule v Minister of Social Development 2004 (6)
SA 505 (CC) para 62.
114 Para 62. See Govindjee & Olivier (n 63 above) 180; Liebenberg (n 36 above) 193.
115 Khosa (n 113 above) paras 44-45, 67. See Bilchitz (n 50 above) 10.
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constitutional obligation for reasons of resource scarcity, it must provide
the Court with details of the precise character of the constraints, within the
context of the overall resources available to it.116
The Constitutional Court then indirectly upheld the negative
obligation inherent to the right to have access to health care services in Law
Society of South Africa v Minister of Transport. It found that amendments to
the Road Accident Fund Act 56 of 1996, according to which reduced
medical care tariffs would be paid to survivors of motor accidents with the
effect that they would only be able to afford public sector health care,
violated section 27(1) of the Constitution in relation to paraplegic and
quadriplegic patients, who required specialised care of a quality that was
available only in the private health care sector.117 Having previously
indicated in a non-health-related context that it would insist on full
justification in terms of the limitation clause for breaches of the negative
obligations imposed by socio-economic rights,118 the Court found that the
reduction in quality of care brought about by the reduced tariff, which
would have potentially life-threatening consequences for quadriplegic and
paraplegic patients, could not be justified by the altogether negligible
financial saving that it brought about for the Fund.119
Finally, in City of Johannesburg Metropolitan Municipality v Blue
Moonlight Properties, the Constitutional Court forcefully indicated that the
ambit of its reasonableness analysis extended also to budgetary decisions
and processes.120 The Court rejected the City of Johannesburg’s assertion
that it could not be held responsible for providing emergency housing to
persons evicted from private property because it did not budget for this and
thus had no resources available, and because the Gauteng Provincial
government would not make additional resources available to it in order to
do this. The Court stated that its determination of reasonableness ‘cannot
be restricted by budgetary and other decisions that may well have resulted
from a mistaken understanding of constitutional or statutory obligations’,
and clarified that this meant that ‘it is not good enough for the City to state
that it has not budgeted for something, if it should indeed have planned
and budgeted for it in the fulfillment of its obligations’.121 The Court
further referred to and upheld the earlier rejection of the City's assertion of
116 Rail Commuters Action Group v Transnet Ltd t/a Metrorail 2005 (2) SA 359 (CC) para 88.
See Ferreira (n 11 above) 281; Hassim (n 108 above) 49; Liebenberg (n 36 above) 197.
117 Law Society of South Africa v Minister of Transport 2001 (1) SA 400 (CC) paras 91-99.
118 Jaftha v Schoeman; Van Rooyen v Stoltz 2005 (2) SA 140 (CC) ‒ for critical discussion see
119 Law Society (n 117 above) para 98.
120 Ferreira (n 11 above) 295.
121 City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd 2012
(2) SA 104 (CC) para 74. See also paras 68-69. For discussion, see Hassim (n 108
above) 49 and, in relation to the SCA’s earlier and similar decision on the case,
H Kruuse ‘“The art of the possible” in realising socio-economic rights: The SCA
decision in City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39
(Pty) Ltd'’ (2011) 128 South African Law Journal 620-632.
119
resource scarcity by the Supreme Court of Appeal (SCA) in this matter,
where the SCA noted that the City had, in fact, operated at a budget
surplus.122 The Court accordingly found that the City did have to provide
emergency housing to the persons in question.
It would thus appear that the Constitutional Court is interrogating the
manner in which the state manages its resources in the pursuit of fulfilment
of socio-economic rights with increasing boldness, as it becomes more
comfortable with its institutional role in socio-economic rights matters.
While clearly respecting the reality of resource scarcity and showing
significant deference to the political branches’ allocation and distribution
of resources, the Court is not afraid to insist on convincing factual evidence
of scarcity and to reject assertions of scarcity where such evidence is not
forthcoming or where resources are clearly available – such as when
budgets have been underspent.123 Its recent jurisprudence begins to
suggest that budgetary allocations, processes and policies may, in
appropriate circumstances, themselves be assessed for reasonableness.124
The jurisprudence further indicates that, while the Court remains sensitive
to the budgetary and related consequences of the remedies that it orders in
socio-economic rights cases, it will not shy away from making orders with
significant budgetary consequences in circumstances where this is
warranted by the gravity of the constitutional violation that it aims to
correct.125 It may therefore be concluded that the Court is indeed
becoming an important forum for public deliberation over the manner in
which resources are appropriated in pursuit of the progressive realisation
of socio-economic rights.126
4.5 Rights and contemporary health financing policy
debates
Having established that the judicial vindication of constitutionally
entrenched socio-economic rights does hold potentially significant
consequences for health-financing policies and processes, it is interesting
to consider the extent to which current health-financing debates are
impacted thereby.
It is generally accepted that the skewed distribution and inefficient use
of resources in the South African health system is largely to blame for the
fact that the country's health outcomes are poor, notwithstanding the fact
122 Blue Moonlight (n 121 above) paras 71, 75, 96. See Kruuse (n 121 above) 628.
123 Hassim (n 108 above) 49; Kruuse (n 121 above) 621, 624, 632, Liebenberg (n 36 above)
193-194, 197.
124 See Ferreira (n 11 above) 299-301.
125 Bollyky (n 29 above) 164-165, 175; Govindjee & Olivier (n 63 above) 181-182;
Liebenberg (n 36 above) 195, 197-198.
126 See also Syrett (n 4 above) 221-223.
120
Chapter 4
that it spends in excess of 8 per cent of GDP on health.127 Access to health
care in South Africa is funded primarily through the national health
budget, private contributions from medical schemes and patients
themselves as well as donor or non-profit financing.128 But approximately
half of all resources spent on health are spent in the private-health sector,
which serves only a fraction of patients. The private-health sector further
employs the majority of health care professionals, and contains a
disproportionate share of relevant technological resources.129
The South African private-health sector is an extremely wasteful one,
with severe over-servicing and unnecessary treatments with questionable
health outcomes being the order of the day.130 The cost of care in the
private sector is further exorbitant, meaning that increasingly fewer
patients can afford either medical insurance or out of pocket payments.
This relegates an increasing amount of patients to the public-health sector,
causing increased strain on the national health budget. The resulting
discrepancies in access to and quality of health care services in the private
and public sectors are legendary.131
In the public sector meanwhile, resources are frequently
misappropriated through corruption and budgetary and financial
mismanagement. Reports on health crises across provinces detail lack of
financial and budgetary management, bureaucratic inefficiency, nonpayment of staff salaries or medicine suppliers, tender irregularities, poor
maintenance of health facilities and equipment and various instances of
over and underspending, both by provincial departments of health and at
individual health care institutions.132
127 See Gaigher (n 53 above) 47; A Hassim et al Health & democracy (2007) 85; N Majoe
‘Health and welfare’ in J Kane-Berman (ed) South Africa Survey 2009-2010 (2010) 467
505; McIntyre et al (n 3 above) 233; South Africa National Department of Health
National Health Insurance in South Africa Policy Paper (hereinafter 'NDH Policy Paper')
(2011) 9.
128 Hassim et al (n 127 above) 85. For a detailed explanation of the budgetary process in
relation to health, see McIntyre et al (n 3 above) 447-453. For recent figures on budget
allocations and medical aid coverage, see further Majoe (n 127 above) 504, 508-509.
129 See S Benatar ‘The challenges of health disparities in South Africa’ (2013) 103 South
African Medical Journal 154; HCJ van Rensburg et al ‘Human resources for health and
the health professions in South Africa’ in Van Rensburg (ed) (n 3 above) 361 414-416.
130 See McIntyre et al (n 3 above) 458, 461.
131 NDH Policy Paper (n 127 above) 4-5, 9-11; Hassim (n 108 above) 51-52; HCJ van
Rensburg & MC Engelbrecht ‘Transformation of the South African health system:
Post-1994’ in Van Rensburg (ed) (n 3 above) 121 177-178.
132 See Eastern Cape Health Crisis Action Committee Memorandum to MEC Sicelo
Gqobana: About the crisis in Eastern Cape health (September 2013) 2-5 available at http://
www.echealthcrisis.org (accessed 6 May 2014); Section 27 & Treatment Action
Campaign Monitoring our health: An analysis of the breakdown of health care services in
selected Gauteng facilities (2013) at 16-29; South African Human Rights Commission
Report in the matter between Democratic Alliance, Mpumalanga and the Department of Health,
Mpumalanga File Ref MP/1213/1060 (December 2013) 31-33, 38-39. See further
Ferreira (n 11 above) 275, 296; Hassim (n 128 above) 50-51; McIntyre et al (n 3 above)
455-456; Ruff et al (n 3 above) S190.
121
Commentators and human-rights organisations are increasingly
challenging these instances of financial and budgetary mismanagement
with reference to standards laid down in constitutional health-rights
jurisprudence. For example, when the Free State Province’s health budget
ran short in late 2008, with the result that the provincial government placed
a moratorium on the enrolment of new patients on anti-retroviral
treatment, human-rights organisations indicated that they would be
prepared to litigate against the Department of Health if it did not urgently
make sufficient funds available to enable the lifting of the moratorium.
They argued that the lack of funds and resulting moratorium meant that
the implementation of government's anti-retroviral treatment programme
was falling short of the constitutional requirement of reasonableness. The
state responded by making additional funds available for anti-retroviral
treatment in the Free State, in early 2009.133 More recently, Section 27 – a
human rights advocacy and litigation organisation focusing on the
progressive realisation of socio-economic rights – has responded to
persistent reports of staff shortages and lack of essential medicines and
supplies in Gauteng public hospitals, by calling on the Department of
Health to adjust its budgeting principles and processes in accordance with
the health needs of patients in the province and the Department's
corresponding constitutional obligations.134
Another recent example relates to the implementation of the South
African National Strategic Plan for HIV 2007-2011. Adila Hassim of Section 27
has argued that the Plan fell short of the substantive requirements posed by
the socio-economic rights jurisprudence, in that it was inadequately costed
and budgeted for, with the result that its full implementation was not
possible.135 Hassim accordingly urged for proper costing and budgeting of
the next strategic plan, which would otherwise ‘fail a vital legal test’136 and
could be vulnerable to constitutional attack.
Clearly, the constitutional jurisprudence has provided civil society
with powerful tools to hold government accountable for its obligations in
the health sector, particularly in relation to the availability of resources in
the public health system. But the constitutional right of access to health
care services also clearly requires state intervention in the misdistribution
of overall health resources between the public and private sectors, as well
as in relation to the burgeoning costs of private sector care.137
In this regard, the government's proposed National Health Insurance
system presents, in the medium term, the most significant resource-related
policy process in the health field. Aiming to ensure universal access to a
133 See Aids Law Project Report on antiretroviral treatment in the Free State: November 2008 February 2009 (2009).
134 Section 27 Comment on the Gauteng health crisis Press Statement, 14 August 2012.
135 Hassim (n 108 above) 45-48.
136 Hassim (n 108 above) 53.
137 Hassim (n 108 above) 51-52.
122
Chapter 4
basic package of health care services in the public health system and,
thereby, to further principles of social solidarity, effectiveness and
appropriateness of care, equity, affordability and efficiency,138 this taxfunded scheme will likely remove state-subsidisation of private-health
insurance.139 The government regards the proposed system as affordable,
but only on the understanding that ‘the present system of fragmentation,
associated with the high cost, curative and hospi-centric approach and
excessive and unjustifiable charges, especially within the private health
sector is unsustainable’.140 Moreover, while the relevant policy documents
do not explicitly state this, it appears that some level of health service
rationing will be central to the proposed system's implementation.
The extent, if any, to which the Constitution constrains the extent to
which this major policy development may disrupt the vested interests of
private sector institutions is discussed in chapter 5 below. What is
important to highlight here is that National Health Insurance will
ultimately be judged as to whether it succeeds in making quality health
care services progressively accessible to all South Africans, within the legal
parameters set by the Constitutional Court's health rights jurisprudence,
and particularly by the ‘reasonableness test’. It is clear from the aforegoing
discussion that, in order to pass constitutional muster, the introduction of
National Health Insurance must be thoroughly costed and sufficiently
budgeted for.141 Moreover, any rationing inherent to the system must be
rational, bona fide, based upon medically justifiable criteria and may not
have an adverse or exclusionary impact on particular groups of persons.
The jurisprudence further requires that the policy will have to cater for a
range of health-related needs without excluding the needs of vulnerable
persons and that its implementation may not have the consequence of
unjustifiably abandoning particular categories of treatment or of
unjustifiably depriving people of necessary care to which they would have
had access under the previous health financing dispensation.
It is clear that patients who are denied treatment under a new health
financing system could challenge the constitutionality of the denial, which
would pass muster only if the policy framework in terms of which it takes
place is reasonable – and, in certain instances, justifiable – and where the
138 NDH Policy Paper (n 127 above) 16-18, 24. On the significance of these principles for
health financing in South Africa, see R Amollo ‘In pursuit of health equity in South
Africa; A critique of the proposed national health insurance’ (2009) 10 ESR Review 14
14-16; Van Rensburg & Engelbrecht (n 131 above) 134.
139 While not purporting to outlaw private medical insurance, the NDH Policy Paper aims
to enable sufficient access to public sector care so that ‘South Africans have a real
choice as to whether to continue medical scheme membership or simply draw on their
National Health Insurance entitlements’. NDH Policy Paper (n 127 above) 40.
140 As above.
141 On the current NHI costing process and steps towards increasing resources for NHI,
see MP Matsoso & R Fryatt ‘National Health Insurance: The first 18 months’ (2012/
13) South African Health Review 21 27-30. For further resource-related assessment of the
proposed NHI, see Benatar (n 129 above) 155; Ruff et al (n 3 above) S185, S188.
123
particular application of the policy to the individual case is, at the very
least, rational, bona fide and non-arbitrary. While courts will be loathe to
interfere with individual decisions on the appropriation of limited health
care resources between needy patients, blanket assertions of resource
scarcity alone will arguably be insufficient to justify a denial of care to
groups of patients.
4.6 Conclusion
Health law cannot finesse or do away with disagreements that neither our
society nor our politics have been able to resolve. However, when disputes
between parties arise, health law can and should make underlying empirical
and normative questions explicit. And, when courts must answer these
questions, they should do so candidly. Doing so would clear a path toward
substantive coherence and predictability, both within and across doctrinal
settings. It would enable actors in the health sphere to draw consistent
messages from the law, to conform their conduct accordingly, and to question
these messages cogently in both the legal and political arenas. It would
empower the public and enrich the democratic process by making health law’s
choices more visible.142
This chapter has reflected on the impact of justiciable health-related rights
on the manner in which South African courts engage with health-related
financing and rationing issues, decisions and processes. It has shown that
the constitutional presence of health-related rights has placed the
justiciability of disputes pertaining to the distribution of health related
resources beyond dispute. The Constitution therefore requires of the South
African judiciary to transcend, first, their hesitance to scrutinise the
conception and implementation of policies with budgetary and financial
dimensions and, secondly, their reliance on the discourse of ‘inevitable
tragedy’ that often obscures the political character of resource distribution
and rationing decisions.
A rights-based approach to health clearly enhances public
accountability for, public participation in and transparency of healthrelated resource distribution decisions and processes.143 It demystifies
resource distribution processes and decisions, demands that government
takes its socio-economic responsibilities seriously144 and requires that it
justifies decisions and policies that have the effect of hindering individual
access to care. Moreover, rights fulfil an important directive function, in
that they indicate the range of interests that need to be taken into account
when health-related finances are allocated, distributed, and applied. In this
regard, South African courts appear to be well placed to participate in the
establishment and elaboration of substantive principles to which resource
142 Bloche (n 20 above) 301-302.
143 Daniels (n 13 above) 328.
144 Barbeton (n 35 above) 8; Liebenberg (n 36 above) 197.
124
Chapter 4
distribution and rationing processes must adhere and to devise appropriate
standards of scrutiny that measure compliance with such principles.
In assessing the courts’ jurisprudence in this regard, the chapter
showed that, despite a somewhat lamentable caution on the part of the
Constitutional Court to award substantive content to health-related
constitutional rights – which minimises the substantive guidance that its
jurisprudence provides to policy makers – the Court is becoming
increasingly bold in insisting that the state provides adequate justification
where health-related rights go unrealised due to a lack of resources. It is
clear that, in South Africa, mere assertions of resource scarcity are not
sufficient to absolve the state of responsibility for the realisation of healthrelated rights. Furthermore, the Constitutional Court's jurisprudence, and
particularly its reasonableness approach, is increasingly providing
yardsticks by which the human-rights sector is measuring state compliance
with the financial dimensions of socio-economic rights.
But, perhaps most significantly, the constitutional inclusion of healthrelated rights has elevated the level of public deliberation over resource
distribution in the health sector. In particular, courts have become fora
where resource distribution and rationing decisions are openly deliberated
and weighed against the foundational principles of the constitutional
order. As public dissatisfaction with increased reports of misspent public
resources mounts,145 we may expect judicial engagement with the
resource-related dimensions of the progressive realisation of socioeconomic rights to increase.
145 See Ferreira (n 11 above) 275, 296-298, who argues that these reports provide
increased impetus for judicial scrutiny of financial processes and, in particular, of
government assertions of resource scarcity as defense against socio-economic rights
claims.
CHAPTER
5
RIGHTS, HORIZONTALITY AND
REGULATION: FACING THE
PUBLIC/PRIVATE DIVIDE
5.1 Introduction
The hard and unpalatable fact is that if the appellant were a wealthy man he
would be able to procure such treatment from private sources; he is not and
has to look to the State to provide him with the treatment. But the State's
resources are limited and the appellant does not meet the criteria for
admission …1
To say that the current state of the South African health system reflects
severe inequalities in the extent and quality of access to health care services
would be an understatement. The combined legacy of the structured racial
oppression of apartheid and a laissez faire government approach to the
development and operation of the private health sector2 has led to a
situation where a small minority of (wealthy or employed, insured and
predominantly white) citizens access private health care services of first
world quality, whereas the majority of the (mostly poor and black)
population are subjected to an over-burdened, under-staffed, underequipped and under-resourced public health system.3
In a society where the Constitution not only guarantees a package of
rights corresponding to the right to health in international law, but also
1
2
3
Soobramoney v Minister of Health (KwaZulu-Natal) 1998 (1) SA 765 (CC) para 31.
On the privatisation of health care in South Africa and its interplay with apartheid and
post-apartheid race politics, see HCJ van Rensburg ‘A history of health and health care
in South Africa: 1652-1994’ in HCJ van Rensburg (ed) Health and health care in South
Africa (2ed 2012) 61 100-112.
The bulk of South African health-care expenditure takes place in the private-health
sector, which serves less than one fifth of the population. For discussion of these
figures and related problems, see A Hassim et al Health & democracy (2007) 17, 25-26,
164-66; B Ruff et al ‘Reflections on health-care reforms in South Africa’ (2011) 32
Journal of Public Health Policy S184-S192, as well as discussions in ch 1 at 1.2 and ch 4 at
4.5. On the unequal provision of health services under apartheid, see further
C Ngwena ‘The historical development of the South African health-care system: From
privilege to egalitarianism’ (2004) 37 De Jure 290 299-301; South African Human
Rights Commission Report Public inquiry: Access to health care services (2008) 12-14.
125
126
Chapter 5
espouses a substantive notion of equality, these discrepancies in access to
health care services are simply untenable. Yet they remain, and are
sustained and reinforced by the operation of the health care market. While
the private sector continues to be enabled by the public health system –
which, for instance, retains responsibility for the training of all health care
professionals – it continues to increase the pressure on the public system,
by drawing the majority of health care workers, as well as the majority of
well-resourced patients, away from it.4 Meanwhile, partly because the
South African private health care market has been left virtually
unregulated, costs of care within the private sector continue to soar,5
further limiting access thereto and increasing the burden on the public
sector.
Clearly, the Constitution requires fundamental reform of the structure
of the health system, in order to ensure that the system enables equitable
access to health care services, on the basis of need rather than of ability to
pay.6 Unsurprisingly therefore, such reform has from the outset been a
policy priority of the democratic government. One of the central goals held
forth in the 1997 White Paper on the Transformation of the Health System of
South Africa was the reduction of discrepancies and inequities in health care
service delivery, through the integration of the private and public health
sectors into a unitary system that delivers equitable access to quality health
care.7 The subsequently enacted National Health Act 61 of 2003 clearly
reflects this commitment. Section 2(a) of the Act determines that its
objectives include ‘establishing a national health system which
encompasses public and private providers of health services; and provides
in an equitable manner the population of the Republic with the best
possible health services that resources can afford’. Several other provisions
4
5
6
7
See Hassim et al (n 3 above) 168-169; M Heywood ‘Debunking “Conglomo-talk”: A
case study of the amicus curiae as an instrument for advocacy, investigation and
mobilisation’ (2001) 5 Law, Democracy & Development 133 136-137; HCJ van Rensburg
& MC Engelbrecht ‘Transformation of the South African health system: Post-1994’ in
Van Rensburg (ed) (n 2 above) 121 179. Canadian health care experts resist the
creation of a dual health system precisely because of the tendency of better resourced
private systems to lure away human and financial resources from public systems. See,
for instance, the minority judgment in Chaoulli v Attorney General, Quebec 254 DLR
(4th) 577 (2005) para 274 as well as M Jackman ‘“The last line of defense for [which?]
citizens”: Accountability, equality and the right to health in Chaoulli’ (2006) 44 Osgoode
Hall Law Journal 349 359, 362, 364; A Petter ‘Wealthcare: The politics of the Charter
revisited’ in CM Flood et al (eds) Access to care, access to justice: The legal debate over private
health insurance in Canada (2005) 116 116-117.
For figures of private health sector growth and inflation post-1994, see Van Rensburg
& Engelbrecht (n 4 above) 177-178.
Hassim et al (n 3 above) 165, 170-172; Heywood (n 4 above) 137; Ngwena (n 3 above)
292; S Liebenberg Socio-economic rights: Adjudication under a transformative constitution
(2010) 145.
See White Paper on the Transformation of the Health System of South Africa (1997) 1.1.1,
1.1.2(a), 2.4, 3.10.4-3.10.5.
Rights, horizontality and regulation: Facing the public/private divide
127
of the Act and many regulations envisaged thereby are geared towards the
achievement of this goal.8
These policy commitments and statutory reforms notwithstanding, the
private health care sector essentially remains largely unregulated today
and the inequalities alluded to above have intensified over the last two
decades.9 As a result, the need to overcome the public/private sector
divide is, predictably, the main driver behind the current National Health
Insurance policy process, with the Department of Health's Policy Paper on
the issue describing the divide as being 'neither rational nor fair' and
committing itself to a 'complete overhaul' of the health system in order to
eventually ensure universal and equitable, needs-based access to quality
care.10
In international law, it is generally understood that the obligation to
protect the right to health requires of states to regulate domestic health
service delivery in a manner that enables equitable access to health care
services and ensures the availability, accessibility, acceptability and quality
of health care. In states where health care service delivery is wholly or
partly privatised, this may require close regulation of private sector
activities.11 In line with growing acceptance that the activities of private
entities engaged in essential service delivery have a significant impact on
the enjoyment of socio-economic rights such as the right to health,
international law further recommends that states elaborate the content of
8
9
10
11
See, for example, secs: 5 (obliging private establishments to provide emergency
medical care); 36-40 (requiring certificates of need to ensure equitable geographical
distribution of health services); 45(1) (enjoining the Minister to ‘prescribe mechanisms
to enable a co-ordinated relationship between private and public health establishments
in the delivery of health services’); 46 (requiring that private health establishments
maintain insurance cover); 47 (aimed at ensuring adherence to quality standards in the
public and private sectors); 90(1)(f), (m), (u), (v) (empowering the Minister to make
regulations pertaining to co-operation between private and public health service
providers, emergency medical treatment, processes and procedures pertaining to
health care pricing in order to enhance access to care and price control respectively).
For discussion of these and related provisions of the Act in this context, see van
Rensburg & Engelbrecht (n 4 above) 179-180.
Van Rensburg & Engelbrecht (n 4 above) 179.
South Africa National Department of Health National Health Insurance in South Africa
Policy Paper (hereinafter ‘NDH Policy Paper’) (2011) 5. See also 4, 6, 9, 16-18. For
discussion of the manner in which the proposed NHI scheme intends to accomplish
the narrowing of the private/public divide, see Van Rensburg & Engelbrecht (n 4
above) 180; DE McIntyre et al ‘Health care financing and expenditure: Post-1994
progress and remaining challenges’ in Van Rensburg (ed) (n 2 above) 433 478.
(Art 12 of the Covenant) (2000) para 35. See further UN Human Rights Council Business
and Human Rights: Mapping International Standards of Responsibility and Accountability for
Corporate Acts Report of the Special Representative of the Secretary General on the
Issue of Human Rights and Transnational Corporations and Other Business
Enterprises A/HRC/4/035 (2007) paras 10, 16. See further YA Vawda & BK Baker
‘Achieving social justice in the human rights/intellectual property debate: Realising
the goal of access to medicines’ (2013) 13 African Human Rights Law Journal 55 62.
128
Chapter 5
private socio-economic obligations and facilitate compliance therewith,
when regulating health care markets.12
This suggests that the state’s obligations in relation to the progressive
realisation of the right to health also has implications for a wide range of
individuals and corporations that are, in some way or another, present in
the private health system. These include the various corporate players –
such as private hospital companies and medical aid schemes – that
comprise the system, the health care professionals employed there and the
patients who make use of it. In considering these implications, this chapter
shows that rights are not advanced solely by being invoked against the
state, but also that the state can ‒ and, indeed, must – sometimes invoke
them against private entities in attempting to ensure their broader
enjoyment.13 Yet, the obligation to progressively realise health-related
rights rests primarily upon the state, and the state’s infringement of private
rights and interests in pursuit of this obligation will usually be capable of
justification only in limited circumstances.
The question of addressing the discrepancies in access to care between
the public and private health sectors will thus often require a balance of
seemingly competing rights. More often than not, this balance will be
articulated as being one between the professional interests of health care
professionals, as well as the interests of upper and middle class (and
insured) patients to access particular health care services, on the one hand,
and those of poor, public sector patients for greater access to the same
quality of health care services on the other. Given the significant financial
interests at stake in the business of private health care service delivery, as
well as the fact that the implicated private parties tend to be well resourced
and thus to have relatively unencumbered access to courts, it can be
expected that courts will often be called upon to strike this balance. Indeed,
private health system reform tends to be litigious terrain all around the
world.
This chapter considers the different ways in which constitutional
norms and human rights, especially the right of access to health care
services, impact on regulatory efforts at reforming the operation of the
private health system in South Africa. It will show that rights and
associated constitutional principles provide both the impetus and a
blueprint for regulation, but that they simultaneously restrict regulatory
possibilities. In particular, the chapter will focus on the extent to which
12
13
UNCESCR General Comment 14 (n 11 above) paras 35, 42. See further Liebenberg (n
6 above) 60, 329, 332; A McBeth ‘Privatising human rights: What happens to the
state's human rights duties when services are privatised?’ (2004) 5 Melbourne Journal of
International Law 133 137, 153-154; M Pieterse ‘Beyond the welfare state:
Globalisation of neo-liberal culture and the constitutional protection of social and
economic rights in South Africa’ (2003) 14 Stellenbosch Law Review 3 26; Vawda &
Brook (n 11 above) 63.
See N Daniels Just health care (1985) 114-115.
129
reforms, such as the mooted National Health Insurance system, must
respect existing rights of health care professionals relating to the practice of
their profession, as well as the rights of patients to the continued
availability and accessibility of quality care. Over and above the limitation
of private interests in the pursuit of an equitable health system, the chapter
will further pay some attention to the question of the elaboration and
enforcement of private obligations under health-related constitutional
rights.
5.2 Rights as impetus for private health sector
regulation
The state's obligation to protect the rights in the Bill of Rights, in terms of
section 7(2) of the Constitution, must be understood, in line with
international law, to require that citizens’ right of access to health care
services be protected against infringement in the course of private health
care service delivery.14 Moreover, the obligation to fulfil the right of access
to health care services clearly requires health system regulation aimed at
facilitating equitable access to quality care. Specifically, in terms of section
27(2) of the Constitution, the state must adopt ‘reasonable legislative and
other measures, within its available resources, to achieve the progressive
realisation’ of the right of everyone to have access to health care services.
Moreover, section 9(2) of the Constitution indicates that the right to
equality must be understood as mandating ‘full and equal enjoyment of all
rights and freedoms’, including the right of access to health care services,
and as allowing – if not requiring – legislative and other measures aimed at
achieving this goal. Health system reform and accompanying regulation
aimed at ensuring equal access to health care services are therefore pressing
constitutional obligations of the South African state.15
The regulation of the private health care sector in accordance with
these constitutional obligations presents the primary space for the
elaboration and enforcement of a network of private (‘horizontal’) socioeconomic obligations, in line with sections 8(2)-(3) of the Constitution,
which determine that rights are, in appropriate circumstances, binding on
private entities and that compliance with private constitutional obligations
should be facilitated primarily through legislation and secondarily through
14
15
DM Chirwa ‘The right to health in international law: Its implications for the
obligations of state and non-state actors in ensuring access to essential medicine’
(2003) 19 South African Journal on Human Rights 541 559; Liebenberg (n 4 above) 332333; S Liebenberg ‘The application of socio-economic rights to private law’ (2008)
Tydskrif vir die Suid-Afrikaanse Reg 464 471.
Heywood (n 4 above) 137; Pieterse (n 12 above) 26; M Pieterse ‘The legitimizing/
insulating effect of socio-economic rights’ (2007) 22 Canadian Journal of Law & Society 1
6-7.
130
Chapter 5
the application and development of the common law.16 This accords with
the growing realisation that it is necessary for powerful private entities in
the health care sector to be held accountable for the often significant
consequences of their actions for people's enjoyment of the right to have
access to health care services.17
Both through the imposition of private socio-economic obligations
and otherwise, measures aimed at facilitating equitable access to health
care services across the public/private health sector divide may have a
significant impact on private rights, legitimate expectations and interests.
It is therefore unsurprising that such measures are often the subjects of
rights-based attack. However, the fact that the state is constitutionally
obliged to adopt them, lends such measures a significant degree of
legitimacy and insulation from rights-based attack, notwithstanding their
impact. While a regulatory measure that limits any right in the Bill of
Rights will withstand constitutional scrutiny only if it satisfies the
standards of legality, reasonableness, justifiability and proportionality
contained in the general limitation clause in section 36 of the Constitution
(as will be elaborated below), the fact that a measure purports to comply
with a constitutional obligation does weigh heavily in the balancing
exercise inherent to the limitation inquiry. As such, the constitutional
entrenchment of the right to have access to health care services provides a
powerful counterweight to the hegemony of neo-liberal arguments against
market intervention and significantly assists in countering the potential of
civil and political rights challenges to thwart state attempts at social
transformation.18
This is largely borne out by the outcome of litigation in this field.
Following from Minister of Public Works v Kyalami Ridge Environmental
Association, where the Constitutional Court held, in a different context, that
the state's constitutional obligations in terms of socio-economic rights will
sometimes outweigh competing private interests and thereby justify certain
16
17
18
See D Bilchitz ‘Corporate law and the Constitution: Towards binding human rights
responsibilities for corporations’ (2008) 125 South African Law Journal 754 769-770;
Chirwa (n 14 above) 562-563; Liebenberg (n 14 above) 469, 471; Pieterse (n 15 above)
18. See further 5.4 below.
See DM Chirwa ‘Non-state actors’ responsibility for socio-economic rights: The
nature of their obligations under the South African Constitution’ (2002) 3 ESR Review
2 6; S Ellmann ‘A constitutional confluence: American “state action” law and the
application of South Africa's socio-economic rights guarantees to private actors’ in
P Andrews & S Ellmann (eds) The post-apartheid constitutions: Perspectives on South
Africa's basic law (2001) 444 449, 468; Liebenberg (n 14 above) 465-466; Liebenberg (n 6
above) 61; 331; Vawda & Brooks (n 11 above) 63.
I have argued this in greater detail in Pieterse (n 15 above) 2-4, 8-9, 18-20. See also
C Heyns ‘Extended medical training and the Constitution: Balancing civil and
political rights and socio-economic rights’ (1997) 30 De Jure 1 5, 14-17 (arguing that
the constitutional obligation to ensure access to health care services outweighs health
care professionals’ freedom of movement and economic activity rights in the context of
limited community service); Pieterse (n 12 above) 26.
131
limitations on individual rights,19 a number of prominent judgments
pertaining to regulation of the health sector have similarly emphasised the
significance of the state's constitutional obligation to make health care
services equitably accessible.
In Affordable Medicines Trust v Minister of Health,20 where the
Constitutional Court dismissed the majority of challenges against a
regulatory scheme that introduced limited restrictions on the ability of
health care professionals to dispense medicines, the Court emphasised that
all the parties to the matter accepted the constitutional legitimacy of the
purpose of the measures – which was to ensure good dispensing and
compounding practices in line with the obligation to provide access to safe
and effective medicines.21 Similarly, in Minister of Health v New Clicks South
Africa (Pty) Ltd,22 in which the Constitutional Court declared certain
features of regulations aimed at controlling medicine retail prices
unconstitutional, it was at pains to emphasise that the state's constitutional
obligation to make medicines affordable was a compelling one, which
would ordinarily serve to justify the limits placed by price control measures
on the economic activity rights of pharmacies.23 While both these
judgments found that certain features of the challenged regulatory schemes
were unconstitutional (as will be discussed in more detail below), they both
regarded the constitutional purpose of the schemes in question to be
significant, to the extent that such measures would not ordinarily be
unconstitutional merely because of the fact that they limit the commercial
interests of private health care practitioners or institutions.
An even better example of the legitimising and insulating effect of the
right of access to health care services in this context, was the legal battle
between the Pharmaceutical Manufacturers Association (PMA) and the
South African government, pertaining to certain provisions of the
Medicines and Related Substances Control Amendment Act 90 of 1997
which allowed, inter alia, for the parallel importation and generic
substitution of certain patented medicines, as well as for the limited
exhaustion of patents on medicines. The PMA claimed that the provisions
infringed the rights of its members to intellectual property under section 25
of the Constitution – read with the provisions of the WTO's TRIPS
agreement, which extends strong patent protection to pharmaceutical
19
20
21
22
23
2001 (3) SA 1151 (CC) paras 37-39, 51, 68, 103, 107. For discussion in this context, see
2006 (3) SA 247 (CC).
Paras 17-23, 54. See also Reitzer Pharmaceuticals v Registrar of Medicines 1998 (4) SA 660
(T) 684B-E, 691I-692A, where the High Court similarly emphasised the constitutional
legitimacy of measures pertaining to the registration of medicines, in dismissing a
challenge against the measures based on the right of a pharmaceutical company to
economic activity.
2006 (2) SA 311 (CC).
Paras 14, 16, 18 (per the entire Court); 314 (per Chaskalson CJ); 514, 517, 519 (per
Ngcobo J); 673, 706-707, 710, 734 (per Moseneke J). For further discussion in this
context, see Pieterse (n 15 above) 13-14.
132
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manufacturers24 ‒ as well as their rights to freedom of trade, occupation
and profession. In response, the government emphasised its constitutional
obligation to increase access to essential medicines by making them more
affordable. The Treatment Action Campaign (TAC) joined the litigation as
amicus curiae, leading evidence which showed that upholding the PMA’s
arguments would significantly impede the progressive realisation of the
right of access to health care services and accordingly arguing that the
Court should uphold the limitation on the PMA’s rights. The TAC also
mobilised outside the courtroom, drawing significant attention to the
matter in the local and international press. The PMA proceeded
unconditionally to withdraw its claims, and the matter was accordingly
halted. Medicine prices dropped significantly in the wake of the
litigation.25
It is therefore clear that the right of access to health care services not
only requires the state to adopt measures aimed at its progressive
realisation, but also lends such measures a significant degree of political
and legal clout. Moreover, where measures are challenged for infringing
on the rights of players in the private health care industry, the rights clothe
their purpose in constitutional legitimacy, thereby going a long way
towards justifying such infringements.
Nevertheless, the rights of private sector entities, as well as the right of
access to care itself, present significant boundaries for private sector
regulation, as will now be illustrated.
5.3 Rights as parameters for private health sector
regulation
At a risk of stating the obvious, a regulatory scheme is not constitutionally
compliant simply because it aims to give effect to a constitutional
obligation. On the contrary, both the rights in the Bill of Rights and the
24
25
The intricate and controversial issues relating to balancing these patent rights against
the right of access to medicines in the international trade context, on which a rich and
varied literature exists, fall beyond the scope of this book. In the African context, see in
this regard, for instance, TJ Bollyky ‘Balancing private rights and public obligations:
Constitutionally mandated compulsory licensing of HIV/AIDS related treatments in
South Africa’ (2002) 18 South African Journal on Human Rights 530-569; E Durojaye
‘Compulsory licensing and access to medicines in post-Doha era: What hope for
Africa?’ (2008) Netherlands International Law Review 33; C van Wyk ‘Access to
affordable HIV medicines in South Africa: Patents, parallel importation, generics and
medical schemes’ (2006) 39 De Jure 1; YA Vawda ‘Tripped-up on TRIPS: The story of
shrinking access to drugs in developing countries’ (2002) 13 Stellenbosch Law Review
352; Vawda & Brooks (n 11 above) 55-81; C Visser ‘“Affordable medicines” exceptions
to patent rights under the TRIPS agreement: Some pointers for South Africa?’ (2001)
34 The Comparative and International Law Journal of South Africa 377.
For discussion of the PMA litigation in this context, see Heywood (n 4 above) 139-156;
Pieterse (n 15 above) 12-13 and authorities there cited.
133
normative principles of the Constitution as a whole significantly restrict
regulatory discretion.
Since government first embarked on the journey of health system
reform, a handful of cases have been brought before the courts where
regulatory schemes or rules were challenged on the basis of being either
procedurally flawed or directly or indirectly infringing one or more rights
in the Bill of Rights. In most, certain features of the regulations in question
were declared unconstitutional, despite the court affirming the importance
of their purpose and approving of their overall intention. From the
judgments in these cases, a number of clear parameters and requirements
for health system regulation are emerging.
Before giving an overview of these parameters and requirements, it is
apposite to briefly summarise the contentions and findings in the most
prominent cases in question.
Affordable Medicines Trust involved a challenge to a licensing scheme
introduced under section 22 of the Medicines and Related Substances
Control Act 101 of 1965, in terms of which restrictions were placed on who
may dispense medicines and from what premises. The effect of the
regulations – which, according to the government, were aimed at
establishing ‘good dispensing practices’ in order to guarantee the safety
and efficacy of medicines – was to significantly limit the circumstances
under which health care practitioners, rather than pharmacies, could
dispense medicines. It was claimed that this infringed the right of health
care practitioners to freely choose their profession, in terms of section 22
of the Constitution, as well as their constitutional rights to dignity,
freedom of movement and property. Further, it was contended that this
exercise of regulatory power was not authorised by the empowering statute
and thus fell foul of the ultra vires doctrine. The Constitutional Court
unanimously dismissed the arguments pertaining to the rights in the Bill of
Rights,26 but upheld the ultra vires challenge in relation to certain of the
regulations. Specifically, the Court held that, to the extent that the
regulations were aimed at safeguarding and advancing the interests of
pharmacies in dispensing medicine, by denying dispensing licenses to
doctors in areas where pharmacies were operative, they fell outside the
scope of the empowering legislation and were hence ultra vires and
unconstitutional.27
The challenge in New Clicks grew out of regulations passed pursuant to
the 1997 Medicines and Related Substances Control Amendment Act, in
terms of which limits were placed on the profit margins that pharmacies
were allowed to add to dispensed medicines. A slew of administrative and
constitutional law challenges were mounted against the regulations, which
26
27
Affordable Medicines Trust (n 20 above) paras 100, 105.
Paras 115-19, 123.
134
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were clearly aimed at making medicines more affordable. While
emphasising the constitutional legitimacy and necessity of price-control
measures in the pharmaceutical sector and finding that the bulk of the
regulations passed constitutional muster, the majority of the
Constitutional Court found that the ‘single exit price’ prescribed by the
regulations was not appropriate, and fell to be set aside as being
unconstitutional.28 The members of the Court differed as to the reasons for
this finding, though for many it related specifically to the failure of the
regulations to pay attention to the specific needs and circumstances of rural
and courier pharmacies, as will be discussed in more detail below. A small
number of further regulations were set aside for various reasons, including
that they were overly vague, fell short of the standards set by the
Promotion of Administrative Justice Act 3 of 2000 (PAJA) and were
unreasonable.
Finally, in Hospital Association of SA Ltd v Minister of Health (HASA),29
the Gauteng North High Court found that regulations pertaining to the
compilation and publication of a reference price list for health services,
passed pursuant to sections 90(1)(u) and (v) of the National Health Act and
aimed at establishing non-mandatory guidelines for the cost of medical
services that could be used by medical schemes to determine the extent of
their benefits, were invalid. This was because the regulations were found
to be procedurally flawed, mostly because of severe deficiencies in the
consultation process.30 In addition, the Court was of the opinion that the
guidelines were set at a level that was irrationally and unreasonably low,
which rendered them unfair, inappropriate and hence unlawful.31
In all three of the above cases, the courts emphasised that, first of all,
all regulations passed in the constitutional state had to conform to the rule
of law and the principle of legality.32 This appears to be both a general
requirement and to be specifically relevant where regulations impact on
the exercise of individual rights, as section 36 of the Constitution posits
adherence to the legality principle as threshold for the constitutional
limitation of rights. In New Clicks, Sachs J stated that the constitutional
principle of legality required, in this context,
28
29
30
31
32
New Clicks (n 22 above) paras 7 (per the Court), 404 (per Chaskalson CJ), 527 (per
Ngcobo J), 654-655, 666 (per Sachs J), 676 (per Moseneke J).
Hospital Association of South Africa Ltd v Minister of Health; ER24 EMS (Proprietary)
Limited v Minister of Health; South African Private Practitioners Forum v Director-General of
Health 2010 (1) BCLR 1047 (GNP).
Para 27, 161.
Paras 118-120, 161. The HASA judgment has attracted criticism for undervaluing the
extent to which the right to have access to health care services requires the government
to lower medicine prices through mechanisms such as these. See J Berger & A Hassim
‘Regulating private power in health’ (2010) 11 ESR Review 6.
Affordable Medicines Trust (n 20 above) para 49; New Clicks (n 22 above) paras 32, 236,
313 (per Chaskalson CJ); 612-613, 632 (per Sachs J); 716 (per Moseneke J); HASA (n
26 above) para 39. See also Kyalami Ridge (n 19 above) paras 51, 54, 114.
135
compliance not only with the empowering statute, but with general
constraints on the exercise of public power flowing from the nature of our
constitutional democracy, in particular the requirement that government be
open, responsive and accountable.33
Requirements hence flowing from the principle of legality and enforced in
the cases included that regulations had to fall within the confines of the
empowering statute (and were accordingly ultra vires and invalid where
they did not),34 had to be clear and precise (and could accordingly be void
for vagueness)35 and had to be passed by means of open and transparent
processes (including meaningful consultation).36
In situations where health sector regulations constitute administrative
action, they further have to adhere to the provisions of the PAJA.37 In New
Clicks, the Court disagreed over whether the PAJA was applicable,
although the majority assumed that it was.38 To the extent that the PAJA
was applicable, Chaskalson CJ summarised its impact on health sector
regulation to be that it requires of regulations to be lawful, procedurally fair
and reasonable, and for regulators to provide reasons for their decisions.39
Further principles of administrative justice that were applied, in various
guises, to the regulations challenged in the different cases included that
regulations had to be rationally connected to a legitimate government
purpose and that regulators had to have applied their minds to all relevant
factors and circumstances, including the impact of their regulations on
affected parties and on the enjoyment of rights in the Bill of Rights.40
Importantly, in both New Clicks and HASA, much of the decision
turned on whether the challenged price control measures were reasonable,
either in terms of the PAJA or as an independent requirement, which was
held to be relevant to determining whether they were appropriate as
required by the empowering legislation.41 This is particularly significant
because, as discussed in earlier chapters, reasonableness has become the
general yardstick by which the Constitutional Court determines whether
policies aimed at giving effect to the right of access to health care services
pass constitutional muster. To reiterate, the Court held in Grootboom that,
in order to be reasonable, both the content and implementation of
measures adopted to advance enjoyment of socio-economic rights had to
be balanced, coherent, flexible, comprehensive and inclusive. Measures
33
34
35
36
37
38
39
40
41
New Clicks (n 22 above) para 632.
See Affordable Medicines Trust (n 20 above) paras 50, 115-119; New Clicks (n 22 above)
paras 6 (per the Court), 415 (per Chaskalson CJ).
See New Clicks (n 22 above) paras 277, 415 (per Chaskalson CJ).
See New Clicks (n 22 above) para 541 (per Ngcobo J), 734 (per Moseneke J); HASA (n
29 above) para 27.
New Clicks (n 22 above) paras 95-96 (per Chaskalson CJ); HASA (n 29 above) para 40.
For a summary of the various judges’ positions on the applicability of PAJA to the
case, see New Clicks (n 22 above) para13.
Para 143 (per Chaskalson CJ).
Paras 541 (Per Ngcobo J), 675 (per Moseneke J).
Paras 188 (per Chaskalson CJ), 666 (per Sachs J); HASA (n 29 above) paras 118-120.
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further had to be capable of facilitating the progressive realisation of the
right, had to cater specifically for emergency situations and had to pay
specific attention to the plight of the most vulnerable and desperate sectors
of the population.42 In Treatment Action Campaign, the Court added that
reasonableness also required of such measures to be transparent.43
Only Sachs J in New Clicks explicitly subjected the challenged
regulations to a Grootboom-type reasonableness analysis. He found that the
price control regulations had to be reasonable also in terms of section 27(2)
of the Constitution, because they were explicitly aimed at the progressive
realisation of the right to have access to health care services. As such, their
reasonableness in terms of section 27(2) coincided with their
appropriateness in terms of the empowering statute.44 As will be discussed
in more detail below, judge Sachs found the regulations to be
unreasonable, mainly because they impacted negatively on the position of
vulnerable members of society, in failing to consider the circumstances of
rural and courier pharmacies.45 While none of the other judges in New
Clicks explicitly considered the reasonableness of the measures in terms of
section 27(2), their findings of unreasonableness or inappropriateness of
the dispensing fee also related to the impact of the fee on rural and courier
pharmacies and, accordingly, on access to medicines by the vulnerable
patients that these pharmacies serve.46 Similarly, the finding in HASA that
the challenged reference price list was unreasonable turned, at least in part,
on its perceived impact on the rights of affected health care professionals
and their patients.47
Whether directly or indirectly, it would therefore seem that the
reasonableness test developed in socio-economic rights judgments does
present parameters for health sector regulation, at least insofar as such
regulation impacts on access to health care by vulnerable sectors of society.
While it has been criticised for operating in a conceptual vacuum and not
linking adequately to the (as yet underdeveloped) content of the right to
have access to health care services,48 the reasonableness standard is clearly
of some use when it comes to evaluating health care policies for
42
43
44
45
46
47
48
Government of the RSA v Grootboom 2001 (1) SA 46 (CC) paras 39-44.
Minister of Health v Treatment Action Campaign (No 2) 2002 (5) SA 721 (CC) paras 33,
36, 67-68, 123.
New Clicks (n 22 above) paras 634-637, 647, 650-651, 653, 666.
Paras 653-655.
Paras 19 (per the Court); 404 (per Chaskalson CJ); 559, 563 (per Ngcobo J); 714 (per
Moseneke J).
HASA (n 29 above) paras 118-119.
See, for example, D Brand ‘The proceduralisation of South African socio-economic
rights jurisprudence, or “what are socio-economic rights for?”’ in H Botha et al Rights
and democracy in a transformative constitution (2003) 33 37, 53-54; S Liebenberg ‘Needs,
rights and transformation: Adjudicating social rights’ (2006) 17 Stellenbosch Law Review
5 31-33; M Pieterse ‘Resuscitating socio-economic rights: Constitutional entitlements
to health care services’ (2006) 22 South African Journal on Human Rights 473 487.
137
constitutional compliance and to identifying and correcting flaws in laws
and policies aimed at realising the right of access to health care services.49
The reasonableness of measures is also in issue where measures are
found to limit rights of either private health care professionals or
institutions, or of patients. Section 36(1) of the Constitution determines
that limitations on rights in the Bill of Rights will pass muster only where,
in addition to adhering to the principle of legality, they are ‘reasonable and
justifiable in an open and democratic society based on human dignity,
equality and freedom’. Section 36 proceeds to prescribe that the
reasonableness and justifiability of a law or policy which limits a right in
the Bill of Rights is assessed by way of a proportionality exercise, which
takes account of 'the nature of the right; the importance of the purpose of
the limitation; the nature and extent of the limitation; the relation between
the limitation and its purpose; and less restrictive means to achieve the
purpose'. In addition to being reasonable, any restriction on a fundamental
right must therefore also be proportionate to the interests served by a
particular measure.
It is clear that concerns pertaining to the impact of health sector reform
measures on the economic activity rights of health professionals and
institutions on the one hand, and on the rights of patients to have access to
health care services on the other, are relevant to their constitutional
compliance. The following subsections will thus consider the parameters
set by, first, health practitioners' freedom of occupational choice and,
secondly, patients' right of access to health care services.
5.3.1
Health care practitioners’ freedom of occupational choice
Many measures aimed at facilitating equitable access to health care
services impact on corporate profit interests in the private health care
sector, as well as on the lives and businesses of individual health care
professionals. Because the former corporate interests do not enjoy
independent constitutional protection, they tend, in litigation, to be
conflated with the latter, private interests. It has through the years been
argued that various measures, ranging from compulsory community
service to restrictions on the geographical distribution of health care
services – such as the unproclaimed ‘certificate of need’ provisions in the
National Health Act – limit a range of health care professionals’
constitutional rights, including rights to equality, freedom of movement,
49
M Pieterse ‘Legislative and executive translation of the right to have access to health
care services’ (2010) 14 Law, Democracy & Development 1 19, also chapter 2 above at 2.3.
For an example of a scholarly attempt to evaluate a particular health policy aimed at
facilitating equitable access to health care services by way of the reasonableness test as
applied in socio-economic rights cases, see N Coetzer ‘The National Health
Amendment Bill 2008 and governmental policy reform: How far is too far?’ (2009) 13
Law, Democracy & Development 40.
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freedom of conscience, belief and opinion, and, most pertinently, freedom
of occupational choice.50
Section 22 of the Constitution, which grants everyone the right ‘to
choose their trade, occupation or profession freely’, however allows for a
degree of state interference with the exercise of professional liberties, in
addition determining that ‘the practice of a trade, occupation or profession
may be regulated by law’. In Affordable Medicines Trust, where the challenge
to the regulations limiting the circumstances in which health care
professionals could dispense medicines centred on section 22, the
Constitutional Court explained that this meant that not all restrictions on
the practice of a profession required justification in terms of section 36 of
the Constitution. Instead, this would only be necessary where a measure
limited the choice of profession or the ability to practice it. Regulatory
measures which did not go as far as to do this, would comply with section
22 if they were rationally connected to a legitimate government purpose.
Courts would thus not have to inquire into the proportionality of a
regulatory restriction on economic activity in relation to the goal advanced
thereby, unless the restriction amounted to a limitation of the choice or
ability to practice a particular profession, or additionally infringed another
right in the Bill of Rights.51 Since the measures in the present case were
aimed at ensuring the safety and efficacy of dispensed medicines and
impacted merely on the extent of health care professionals’ marginal
economic activities, rather than on their ability or choice to practice
medicine, the section 22 challenge was accordingly dismissed.
It would therefore seem that measures which relate rationally to the
compelling governmental purpose of ensuring equitable access to health
care services will fall foul of section 22 of the Constitution only in
circumstances where their impact is so severe as to significantly hinder the
choice to enter or remain in the health or pharmaceutical professions. It
may however be argued that this question of impact needs to be assessed
in the context of the problems facing health care professionals in the South
African health system generally, where the poor working conditions in the
public health sector are often cited as a reason for health care professionals
only being willing to practice in the private sector, or even for abandoning
the profession or opting to practice it outside of South Africa.52
50
51
52
In relation to compulsory community service, see Heyns (n 18 above) 5-14; HCJ van
Rensburg et al ‘Human resources for health and the health professions in South Africa’
in Van Rensburg (ed) (n 2 above) 361 372-373. In relation to certificates of need, see
A Dhai & H Etheridge ‘Resource allocation’ in A Dhai & D McQuoid-Mason (eds)
Bioethics, human rights and health law: Principles and practice (2011) 143 147; Pieterse (n
15 above) 16-17.
Affordable Medicines Trust (n 20 above) paras 62-72, 92-94. See also New Clicks (n 22
above) para 661 (Per Sachs J).
See Van Rensburg et al (n 50 above) 417-421; South African Human Rights
Commission Report in the matter between Democratic Alliance, Mpumalanga and the
Department of Health, Mpumalanga File Ref MP/1213/1060 (December 2013).
139
Over and above section 22, it is apparent from both the New Clicks and
HASA judgments that the impact of regulatory measures on the economic
viability of health care institutions and on the professional lives of health
care professionals is nevertheless relevant to the question of whether
measures are reasonable in terms of section 27(2) of the Constitution – or,
in the context of the more restrictive inquiries in both cases, whether they
are appropriate in accordance with the legislative provisions to which they
aim to give effect. In both cases, the courts accepted the argument that the
challenged regulations would likely have the effect of driving certain health
care professionals out of business. Moreover, in both cases this was
determinative of the finding that the regulations were unconstitutional,
either because they were therefore thought to be unreasonable or
inappropriate, or because it was felt that they failed to achieve their
purpose as a result of this effect.53
However, New Clicks makes it clear that, when it comes to the
reasonableness or appropriateness of regulatory measures, the focus of the
inquiry is not so much on the economic or professional interests of health
care institutions or professionals themselves – as would be the case in a s
22 challenge – but rather on the extent to which their economic and
professional interests coincide with the purpose of the measures in
question, namely to improve access to health care services.54 In this
respect, the actual substantive standard underlying the inquiry appears to
be patients' right of access to care, to which this discussion now turns.
5.3.2
Patients’ right of access to health care services
Because almost all health sector reform measures ostensibly aim to achieve
more equitable access to health care services, it is unsurprising that their
constitutionality will often turn on whether they in fact have this effect.
Indeed, the extent to which measures that limit rights in the Bill of Rights
in pursuit of a worthy objective actually achieve that objective is one of the
factors that must be considered in the course of a section 36 limitation
analysis. The case law to date appears to suggest that measures which,
whether through their impact on patients and health care professionals or
otherwise, have the effect of actually diminishing access to care, will be
unlikely to pass constitutional muster.
This is particularly well illustrated by the outcome of New Clicks. For
most of the judges writing in that case, the pharmaceutical price control
measures in question were constitutionally offensive because they failed to
take account of the circumstances of rural and courier pharmacies, who
would feel their impact the hardest. Since both rural and courier
53
54
See New Clicks (n 22 above) paras 520, 526-527 (per Ngcobo J); HASA (n 29 above)
paras 118-119.
New Clicks (n 22 above).
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pharmacies primarily served communities whose access to medicines was
particularly perilous, the Court held that their economic viability had to be
taken into account when devising the price control measures. By failing to
do so, the drafters of the measures risked driving rural and courier
pharmacies out of business, hence reducing the availability of medicines to
vulnerable sectors of society, even as they aimed to make medicines more
affordable. While none of the judgments in New Clicks explicitly depicted
this counterproductive effect of the regulations as a violation of the right to
have access to health care services, it led most of them to conclude that this
rendered the regulations unreasonable and hence inappropriate.55 As
Moseneke J stated: ‘Implicit in the requirement of affordable medicines is
a pricing regime that does not render medicines out of the reach of most
users and thereby frustrate access to quality health care’.56
It is thus clear that, in order to pass constitutional muster, measures
aiming to increase equitable access to medicines must, at least, not have
the effect of diminishing such access. This accords with the obligation to
respect the right of access to health care services, both in terms of
international law and under section 7(2) read with section 27(1)(a) of the
Constitution, which is understood to require that states refrain from
actions which have the effect of disrupting, impeding or hindering existing
access to health care services.57 Moreover, it corresponds with the
international law principle that deliberatively retrogressive measures –
namely, measures which have the effect of halting or reversing the
progressive realisation of a particular socio-economic right – are generally
not permissible, unless they can be justified by their positive effect on the
overall realisation of the totality of socio-economic rights.58
That this, so-called ‘negative’, obligation inherent to the right to have
access to health care services can have a far-reaching impact on the reform
of the health system is apparent from the recent judgment of the
Constitutional Court in Law Society of South Africa v Minister of Transport.59
Amidst a range of unsuccessful constitutional challenges against different
amendments to the Road Accidents Funds Act 56 of 1996, the Court
55
56
57
58
59
New Clicks (n 22 above) paras 19 (per the Court); 404 (per Chaskalson CJ); 526-527,
557-563 (per Ngcobo J); 654-655 (per Sachs J); 714, 772, 781 (per Moseneke J). See
also HASA (n 29 above) para 118, where the Court remarked that the challenged
measures were unreasonable because they might have the effect of driving health care
professionals out of the health care sector, hence compromising the right of access to
health care services.
See UNCESCR General Comment 14 (n 10 above) para 34; S Liebenberg ‘The
interpretation of socio-economic rights’ in S Woolman et al (eds) Constitutional law of
South Africa (2 ed, OS 2003) ch 33 17-19.
See UNCECR General Comment 14 (n 10 above) para 32; Principle 72 of the Limburg
Principles on the Implementation of the International Covenant on Economic, Social and
Cultural Rights UN Doc E/CN 4/1987/17/Annex (1987); Guideline 14(e) of the
Maastricht Guidelines on Violations of Economic, Social and Cultural Rights reprinted in
(1998) 20 Human Rights Quarterly 690.
2011 (1) SA 400 (CC).
141
upheld a challenge against a regulation which limited the financial liability
of the Road Accidents Fund in relation to medical treatment for injuries
sustained in the course of motor vehicle accidents, to an amount
‘determined in accordance with the Uniform Patient Fee Schedule for fees
payable to public health establishments by full-paying patients, prescribed
under … the National Health Act’.60 Since this tariff would only be
sufficient to cover health care services received in the public health sector,
it meant that survivors of motor vehicle accidents who were not themselves
able to pay for medical treatment in the private health sector, would have
to be treated for their injuries in the public sector.
While this would not ordinarily pose a problem, the Court held that it
was constitutionally problematic in relation to those persons who become
quadriplegic or paraplegic as a result of motor vehicle accidents. This was
because the evidence before the Court showed that the public health sector
was not able to adequately provide the life-long, specialised care and
rehabilitation required by quadriplegics and paraplegics, who would be
‘constantly at risk in a state hospital as a result of the chronic lack of
resources, paucity of staff and inexperience in dealing with spinal cord
injuries’.61 Indeed, some expert witnesses concluded that the quality of
state hospital care for quadriplegics and paraplegics was so inadequate as
to place them at ‘material risk of untimely death due to untreated
complications’.62 The prescribed tariff was accordingly held to be
unreasonable for failing to cater for the needs of quadriplegics and
paraplegics. It therefore infringed the right to have access to health care
services and was declared unconstitutional.63
The consequences of the Law Society judgment for the future of health
sector regulation in South Africa are profound. The judgment shows that
it will not be constitutional for measures aimed at establishing universal,
equitable access to health care services to scale back the extent of people's
existing access to health care services in the private health care sector,
unless it is certain that the public health service is able to cater for their
specific health needs by providing required services of adequate quality.
Again reflecting the conventional understanding of the obligation to
respect the right of access to health care services, the Law Society judgment
in this respect also calls to mind the judgment of the majority of the
Canadian Supreme Court in the matter of Chaoulli v Attorney General,
Quebec that it breached the rights to life and personal inviolability of
citizens of Quebec to forbid them to purchase private health insurance, in
60
61
62
63
Regulation 5(1) of 21 July 2008, issued by the Minister of Transport in terms of sec
17(4B)(a) of the Road Accidents Funds Act 56 of 1996.
Law Society (n 59 above) para 94. See also paras 91-98.
Para 94.
Paras 100, 108.
142
Chapter 5
circumstances where the public health care system was not able to provide
them with adequate care within a reasonable time.64
But the restraining effects of the obligation to respect the right of
(existing) access to health care services are not unproblematic. This is
because current patterns of access to care reflect financial and policy
choices which, either in their intention or their effect, advance the health
care interests of wealthy and middle-class patients at the expense of those
of the poor. Insisting that existing levels of access to care may not be scaled
back may thus serve to entrench the inequalities inherent to these current
patterns of access.65 Indeed, the Chaoulli majority judgment has been
severely criticised in Canada, for privileging the civil and political
entitlements of upper and middle class Canadians to timely private sector
care above the equality-interests of poor Canadians to receive care based
on need rather than their ability to pay.66 In South Africa, where current
patterns of unequal access to health care services overlaps acutely with
historical racial and economic disadvantage, overzealous enforcement of
the obligation to respect access to health care services, if interpreted to
include privileged South Africans' current levels of access to private sector
care, has the potential of significantly hindering efforts to reduce the gap
between private and public sector care through measures such as the
introduction of a National Health Insurance system.
Yet, the Law Society judgment highlights that the limited accessibility
and affordability of private health care services presents only one side of
the constitutionally untenable state of the dual South African health
system – the other side being the severe and persistent problems regarding
the availability and quality of health services in the public sector, with
some studies going as far to suggest that even poor South Africans prefer
to pay out of pocket for exorbitantly expensive private sector care, rather
than to subject themselves to the inefficiencies of the public health care
system.67 Indeed, Law Society appears to warn that regulatory efforts to
bridge the gap between the private and public health care sectors may be
unconstitutional if they do not result in all patients being able to access care
64
65
66
67
Chaoulli (n 4 above) paras 4, 40, 43 (per Deschamps J for the majority); 104-105, 122,
124, 158 (per McLachlin CJC & Major J, concurring separately).
See S Liebenberg ‘Grootboom and the seduction of the negative/positive duties
dichotomy’ (2011) 26 SA Public Law 37 39, 44, 46, 56, 58.
See the minority judgment in Chaoulli (n 4 above) paras 174, 274 (per Binnie & Lebel
JJ) as well as, for example, JM Gilmour ‘Fallout from Chaoulli: Is it time to find cover?’
(2006) 44 Osgoode Hall Law Journal 327 338-341; Jackman (n 4 above) 359-362; B Porter
‘A right to health care in Canada: Only if you can pay for it’ (2005) 6 ESR Review 8.
See S van der Berg et al Financial implications of a National Health Insurance Plan for South
Africa: Study commissioned by the Hospital Association of South Africa (2010) 23-25. For
judicial notice on the extent of the inadequacies of public sector health care, see also
S v Tembani 2007 (1) SACR 355 (SCA) paras 27-29.
143
of an appropriate quality, that accords with a range of implicated
constitutional rights.68
While Sachs J’s warnings in New Clicks that the obligations flowing
from the right to have access to health care services and the accompanying
reasonableness standard should not be used to retard transformation of the
health system, and that ‘the maintenance of “business as usual” is not a
constitutional principle’,69 must be taken seriously, it would therefore
appear that, in order to withstand constitutional scrutiny, a reduction in
the scope and extent of access to private health care services in South
Africa will have to be accompanied by a concomitant increase in the
availability and quality of public sector care, at least to a point where
scaling back the quality of care to which upper and middle-class South
Africans currently have access does not amount to a relegation to
inadequate care.70 This appears to have been acknowledged by the
architects of National Health Insurance, with strengthening of the public
health sector being envisaged as an essential prerequisite for the
implementation of the system.71
5.4 Beyond regulation: Towards enforcing human
rights obligations in the private health sector 7272
Despite longstanding reluctance in liberal legal cultures to hold private
entities responsible for compliance with human rights standards, especially
when it comes to socio-economic rights, it is increasingly recognised that
the extent to which private entities are involved in basic service delivery,
the nature and scope of the power that they exercise in this respect and the
impact of their actions on the enjoyment of citizens’ socio-economic rights
warrant holding them accountable to at least certain aspects of relevant
human rights standards.73
68
69
70
71
72
73
See also Premier, Province of KwaZulu-Natal v Solly [2011] JOL 27017 (SCA) para 33,
where the SCA remarked that it is not acceptable for public sector patients to be
treated with less respect for their rights to dignity and privacy than is the norm in the
private health sector.
This is not to say that the standard of care available to all in the public sector need in
all respects correspond to that previously available to a few in the private sector, but
does imply insisting on compliance with a constitutionally derived standard of
adequacy or appropriateness of care. See P Wayburne Developing a constitutional
paradigm for national health insurance in South Africa (2014) (unpublished PhD thesis
University of the Witwatersrand, on file with author) ch 3 and 4. See also arguments of
Van der Berg et al (n 67 above) 135.
See MP Matsoso & R Fryatt ‘National Health Insurance: The first 18 months’ (2012/
2013) South African Health Review 21 24-26; McIntyre et al (n 10 above) 477.
In this section, I elaborate on arguments advanced in M Pieterse ‘Indirect horizontal
application of the right to have access to health care services’ (2007) 23 South African
Journal on Human Rights 157.
Liebenberg (n 14 above) 464-465; Liebenberg (n 6 above) 331; Pieterse (n 72 above)
157-159; M Pieterse ‘Enforcing the right not be refused emergency medical treatment:
Towards appropriate relief ’ (2007) 18 Stellenbosch Law Review 75 78-79.
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Chapter 5
In South Africa, horizontal (private) application of constitutional
rights is regulated primarily by subsecs 8(2)-(3) of the Constitution, which
determine:
(2) A provision of the Bill of Rights binds a natural or juristic person if, and
to the extent that, it is applicable, taking into account the nature of the
right and the nature of any duty imposed by the right.
(3) When applying a provision of the Bill of Rights to a natural or juristic
person in terms of subsection (2), a court –
(a) in order to give effect to a right in the Bill, must apply, or if necessary
develop, the common law to the extent that legislation does not give
effect to that rights; and
(b) may develop rules of the common law to limit the right, provided that the
limitation is in accordance with section 36(1).
These somewhat vague provisions make it clear that not every right, and
not all obligations imposed by a particular right, are capable of horizontal
application. A further factor that is clearly relevant to the question of
whether a particular private individual or entity should be bound by a
specific constitutional requirement, is the nature or identity of that
individual or entity and the role that it fulfils in socio-economic rightsprovision. In this respect, it has been argued that factors such as the nature
and extent of the power exercised by the individual or entity, the degree to
which this power emulates state powers, the impact of the power on the
enjoyment of socio-economic rights and the nature and special
characteristics of the relationship between the individual or entity and any
specific rights-holders should be taken into account, when ascertaining
whether and to what extent the individual or entity should be bound by
specific human rights standards.74
Based on these factors, several commentators have argued through the
years that international pharmaceutical companies should bear
responsibility for the significant impact of their actions on the enjoyment
of the right of access to essential medicines.75 Similarly, since they are in
the business of rendering access to health care services and medicines
respectively, and since their power in this respect is similar in nature and
effect to that of state health care institutions, there have been increasing
calls to require private hospitals and pharmacies to comply with some of
the health-related obligations in the Bill of Rights.76 Finally, due to the
significance of their work for the enjoyment of the right of access to health
care services, the extent of public investment in their careers and the
74
75
76
See Bilchitz (n 16 above) 775-777, 779; Chirwa (n 17 above) 4, 6; Ellmann (n 17 above)
444, 446, 462-467; Liebenberg (n 14 above) 467, 469; Pieterse (n 72 above) 161-162;
M Pieterse ‘Relational socio-economic rights’ (2009) 25 South African Journal on Human
Rights 198 200.
See Elmann (n 17 above) 468; Liebenberg (n 14 above) 469.
See McBeth (n 12 above) 135-137; Pieterse (n 72 above) 169; Pieterse (n 74 above) 202,
208.
145
special legal and social nature of their relationship with patients, it has also
been contended that some human rights obligations should be enforceable
against individual, private health care practitioners.77
But which socio-economic obligations should be horizontally
applicable in this manner? Section 27(2) of the Constitution clearly limits
the obligation to adopt reasonable legislative and other measures in pursuit
of the progressive realisation of the right to have access to health care
services to the state, leaving some to believe that the constitutional drafters
did not intend for section 27(1)(a) to have any horizontal effect.78
However, it has convincingly been shown that section 27(2) is not
exhaustive of the obligations imposed by the right of access to health care
services and thus also does not altogether preclude its horizontal
application.79
This said, not much clarity on the nature and extent of the horizontal
dimensions of section 27(1) has thus far emerged from the jurisprudence of
the Constitutional Court. This is, at least partly, because the Court's
'reasonableness' approach to socio-economic rights adjudication focuses
almost exclusively on the content of measures taken by the state in terms
of section 27(2) and thus leaves little scope for the deliberation of the
different levels of obligation engendered by section 27(1)(a) of the
Constitution.80 Thus far, the only allusion to the possible application of
section 27(1)(a) against private health care service providers has been a
passing remark in a separate concurring judgment in Soobramoney v
Minister of Health (KwaZulu-Natal), where Madala J alluded to the
important role played by the private health care sector in rendering
complex medical treatment beyond the resource capacity of the state,
stated that he regarded allegations that the appellant was not informed of
his options to access private sector care as 'a serious indictment for the
private sector' and concluded that ‘the private sector is not before us and
we cannot condemn it without hearing it’.81
Almost all commentators agree that private entities should be bound
at least by the obligation to respect the right of access to health care
services, meaning that they are legally prohibited from disrupting,
77
78
79
80
81
See Pieterse (n 72 above) 169-170; Pieterse (n 15 above) 14.
See P Carstens & A Kok ‘An assessment of the use of disclaimers by South African
hospitals in view of constitutional demands, foreign law and medico-legal
considerations’ (2003) 18 SA Public Law 430 437, 440; I Currie & J de Waal The Bill of
Rights handbook (5ed 2005) 53; DL Pearmain ‘Contracting for socio-economic rights: A
contradiction in terms?’ (2006) 69 Tydskrif vir Hedendaagse Romein-Hollandse Reg 287
293.
See Ellmann (n 17 above) 461; Liebenberg (n 14 above) 468; JC Mubangizi ‘Public
health, the South African Bill of Rights and the socio-economic polemic’ (2002)
Tydskrif vir die Suid-Afrikaanse Reg 343 345; Pieterse (n 72 above) 163.
See Chirwa (n 17 above) 5; Pieterse (n 72 above) 164.
Soobramoney (n 1 above) para 48. Chaskalson P, writing from the majority, declined to
remark on the private sector’s attitude in this regard, para 35.
146
Chapter 5
denying, impairing or obstructing existing access to health care services
without constitutionally acceptable justification.82 Moreover, there
appears to be consensus that the equality threshold underlying the notion
of 'everyone' being entitled to access to health care services should be
horizontally enforceable, in accordance with the prohibition on unfair
discrimination by private entities under section 9(4) of the Constitution.
This means that it would be unlawful for a private entity to withhold
medical treatment where this refusal is arbitrary or amounts to unfair
discrimination.83 Then, if, as some of the judgments in New Clicks imply,
the notion of 'access' to health care services is understood to encompass the
international law standards of accessibility, affordability, acceptability and
quality of health care,84 private health service providers may well be
obliged to maintain, or refrain from interfering with, the acceptability,
accessibility, availability and quality of health care services.85 In
particular, private health care facilities or practitioners may be regarded as
constitutionally obliged to render health care services of appropriate
quality.86
There is further consensus that the right not to be refused emergency
medical treatment in section 27(3) of the Constitution does apply
horizontally.87 This has been confirmed by the legislature, with section 5
of the National Health Act determining that no private or public health
care provider may refuse to render emergency medical treatment when this
is required. However, as alluded to in chapter 2 above, the content, scope
and means of enforcement of this obligation remains unclear. In
Soobramoney, the Constitutional Court held forth a vague and fairly
restrictive interpretation of the obligations imposed by section 27(3) of the
Constitution,88 which does not assist private hospitals and health care
practitioners in ascertaining the scope of their positive obligations in terms
of this provision.89 Furthermore, regulations aimed at elaborating the
82
83
84
85
86
87
88
89
See Chirwa (n 14 above) 564; Chirwa (n 17 above) 5-6; Liebenberg (n 57 above) 58;
McBeth (n 12 above) 146; Pieterse (n 12 above) 26; Pieterse (n 72 above) 165.
Chirwa (n 14 above) 564-655; Chirwa (n 17 above) 4; Pieterse (n 72 above) 165-166.
See further item 3 of the Schedule to the Promotion of Equality and Prevention of
Unfair Discrimination Act 4 of 2000, which contains an illustrative list of unfair
practices in the health sector.
For elaboration on these standards in international law, see UNCESCR General
Comment 14 (n 10 above) para 12. See New Clicks (n 22 above) para 706 (per Moseneke
J).
Chirwa (n 14 above) 565; McBeth (n 12 above) 149; Pieterse (n 72 above) 166-167.
See Carstens & Kok (n 78 above) 442; McBeth (n 12 above) 151; Pieterse (n 72 above)
P Carstens & D Pearmain Foundational principles of South African medical law (2007) 160161; Chirwa (n 17 above) 5; Currie & De Waal (n 78 above) 53; Ellmann (n 17 above)
460; Pieterse (n 72 above) 167-168; Pieterse (n73 above) 80.
Soobramoney (n 1 above) paras 17-21, 35-36. For a summary of relevant criticism, see
Pieterse (n 73 above) 83-85 and authorities cited there.
147
content of the obligation in terms of the National Health Act have not yet
been proclaimed.90
As to the question of how to enforce private socio-economic
obligations, section 8(3) of the Constitution clearly indicates a preference
for their indirect elaboration through regulation in terms of legislation, in
which case all the considerations in the previous subsections of this chapter
are relevant. Absent such regulation, section 8(3) proceeds to indicate that
the preferred manner to vindicate rights privately would be by way of
developing and/or limiting the rules of the common law, which would
conceivably also generate more effective remedies for private rightsinfringements.91 Further relevant in this respect is section 39(2) of the
Constitution, which determines that courts must promote the spirit,
purport, and objects of the Bill of Rights in every matter where they
develop the common law or interpret legislation.
It is therefore clear that, in instances where citizens' rights to have
equitable access to health care services are not adequately protected
against private invasion through existing health sector regulation, they are
entitled to look to the courts for protection and redress.92 Courts, which
are given broad and flexible remedial powers by section 38 of the
Constitution, are well-equipped to fulfil a protective role in this regard by
way of developing the common law, with which they have much
experience. There further exists a substantial body of common law rules
pertaining to various aspects of the doctor patient relationship, which may
incrementally be applied or developed to give effect to patients'
constitutional rights and to private health care providers' corresponding
obligations. For example, I have argued elsewhere for the development of
common law rules pertaining to the circumstances under which health care
practitioners are obliged to treat particular patients, in emergency and nonemergency situations respectively, in order to give effect to the
constitutional rights of access to medical treatment and non-refusal of
emergency care.93
Lamentably, however, in the one case where South African courts
have been called upon to develop the common law in order to give effect
to section 27(1)(a) of the Constitution in the private sphere, the Supreme
Court of Appeal (SCA) declined to do so. In Afrox Health Care v Strydom,
90
91
92
93
On the urgent need for legislative clarification of the scope of the obligation under sec
27(3), see specifically Carstens & Pearmain (n 87 above) 160, 162; Pieterse (n 49
above) 13-15. Private health care providers have taken to self-define the scope of their
obligation in this regard, in rather restrictive terms. See, for example, Hospital
Association of South Africa Private Hospital Review 2008: Examination of Factors
Impacting on Private Hospitals (2008) 67, 69-70.
See Currie & De Waal (n 78 above) 53-54; Pearmain (n 78 above) 289-290; Pieterse (n
72 above) 162.
Carstens & Kok (n 78 above) 441; Liebenberg (n 14 above) 472; Liebenberg (n 6 above)
334; Pieterse (n 74 above) 208.
See Pieterse (n 72 above) 171-174; Pieterse (n 73 above) 86-89.
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Chapter 5
the SCA overturned a judgment of the Pretoria High Court, which found
that a standard-form contractual clause, in terms of which a private
hospital was exempted from delictual liability for rendering negligent care,
was contra bonis mores and unenforceable. The High Court found that,
since private hospitals were providing a basic service that was the object of
a constitutional right, they had to do so within constitutional parameters,
and that patients accordingly had a legitimate expectation that private
health services would be rendered with due skill and care.94 The applicant,
who did not read the hospital admission contract he was signing and was
not alerted to existence of the clause, was held to have acted in accordance
with this legitimate expectation. Since the clause infringed this expectation
– and, by implication, the quality dimensions inherent to the right of access
to health care services – it was held to be invalid and unenforceable.
On appeal, however, the SCA, left open the question of whether
private hospitals were in any manner bound by section 27(1)(a) of the
Constitution95 and instead inquired into whether the clause was against
public policy – which, it claimed, had to be understood in light of
constitutional values including those associated with section 27(1)(a), but
also in light of the 'constitutional value' of freedom of contract.96 Holding
that the clause neither consisted an absolute barrier to receiving care, nor
mandated or encouraged the rendering of negligent or substandard care,97
and finding that the patient could not establish that there was inequality in
bargaining power between himself and the hospital,98 the SCA concluded
that the clause was not against public policy. It accordingly upheld the
appeal.
The SCA's Afrox judgment has been widely criticised for its
'particularly formalistic and impoverished' interpretation of the right to
have access to health care services, which fails to appreciate that the notion
of access to care entails more than mere physical access to health care
establishments.99 The Court has rightly been accused of overlooking that
the contract in question was for the provision of the object of a
constitutional right, of denying the obvious and significant inequalities in
bargaining power that exist between private hospitals and their prospective
patients and of privileging the commercial value of pacta sunt servanda over
the constitutional values associated with the protection of the right of
access to health care services.100 In doing so, the SCA has effectively
precluded patients from availing themselves of their only meaningful
94
95
96
97
98
99
100
Strydom v Afrox Healthcare [2001] 4 All SA 618 (T) 626b-h, 627f-g.
Afrox Healthcare v Strydom 2002 (6) SA 21 (SCA) para 15.
Paras 17-18; 22.
Paras 19; 21.
Para 12.
Liebenberg (n 6 above) 363. See also Carstens & Pearmain (n 87 above) 467-468.
See, for example, D Brand ‘Disclaimers in hospital admission contracts and
constitutional health rights’ (2002) 3 ESR Review 17; Carstens & Kok (n 78 above) 444;
Carstens & Pearmain (n 87 above) 467; RM Jansen & BS Smith ‘Hospital disclaimers:
Afrox Health Care v Strydom’ (2003) 28 Journal for Juridical Science 210 217-218; H Lerm
149
remedy for infringement of the quality dimensions of their right of access
to health care services in the private health sector, where exclusion clauses
such as that signed by the applicant have become the norm.101
Overall, it is clear that the Constitution allows for the legislative and
judicial elaboration of a network of private obligations flowing from socioeconomic rights. Where these obligations are established by way of
legislation or regulations, their constitutional underpinning will often
justify any infringement occasioned by them on the exercise of affected
private parties' commercial or civil liberties, provided that such
infringement adheres to certain basic constitutional guidelines, is not
disproportionate to the interests advanced and has the actual effect of
enhancing equitable access to health care services. Absent legislation or
regulation, private obligations may nevertheless be established,
embroidered and enforced by courts called upon to vindicate the right to
access to health care services within private relationships.
In this respect, however, it would seem that the South African
judiciary's ingrained deference to the legislature, its unwillingness to
interfere in the operation of markets and its preference for the preservation
of the current state of common law may significantly retard transformation
of the unequal power relations and associated diminished access to care
that pervade much of private health service delivery.102
5.5 Conclusion
This chapter has shown that the rights in the Bill of Rights, particularly the
right of access to health care services, have an important role to play in the
reconfiguration of the inequities inherent in the dual South African health
system. The constitutional status of the state's obligation to ensure
equitable access to health services, together with the fact that the Bill of
Rights allows for the limitation of private economic interests and for the
elaboration and enforcement of horizontal human rights obligations,
provide powerful backing for legislative and regulatory efforts aimed at
reducing the prevailing gap in access to quality health care services.
Much as the Constitution also sets the parameters and limits of health
sector regulation, it ensures that the extent and quality of citizens' access to
health care services is a central consideration when courts decide on
adherence to such limits and parameters.103 Importantly, it appears that
courts have subjected the commercial and other interests of private health
100 ‘Exclusionary clauses in medical contracts revisited’ (2011) 74 Tydskrif vir Hedendaagse
Romein-Hollandse Reg 47 61-64; Liebenberg (n 14 above) 476; Pieterse (n 74 above) 208209.
101 Liebenberg (n 6 above) 364; Pieterse (n 72 above) 176-177.
102 See further Liebenberg (n 6 above) 334-335.
103 Pieterse (n 15 above) 20.
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Chapter 5
care practitioners and corporate establishments to patients’ right of access
to care, in that, save in instances where regulations are so stringent as to
negate the choice or ability to practice health care, the restriction of
commercial profits or activities of health care service providers will be
constitutionally problematic only where it leads to an unjustifiable
diminution in access to health care. Whereas the politics of health sector
regulation often polarise the powerful forces of the state and the private
health care industry, the constitutional right of access to health care
services therefore ensures that the voice of citizens enters the arena and
becomes determinative of the admissibility of particular attempts at
regulation.104
Furthermore, the chapter has shown that measures aimed at bridging
the gap between the public and private health systems cannot be entirely
one-sided. Where the effect of such measures is to relegate patients who
previously accessed private sector care to the public health sector, this will
be constitutionally compliant only where the quality of comparable care in
the public sector is sufficient. The reining in of the excesses of the private
health system must therefore be accompanied with, if not preceded by, the
structural improvement of the public system.
Finally, to the extent that private entities remain implicated in the
delivery of health care services in South Africa, constitutional rights both
require and provide the basis for the elaboration of a network of private
rights and obligations, which must ensure that relevant constitutional
rights are duly respected, protected, promoted and fulfilled. Courts and the
democratic branches are equally tasked with ensuring that this becomes a
reality.
104 See Hassim et al (n 3 above) 183; Heywood (n 4 above) 147; Pieterse (n 15 above) 1213; M Pieterse ‘Health, social movements and rights-based litigation in South Africa’
(2008) 35 Journal of Law & Society 364 379.
CHAPTER
6
RIGHTS AS RESTRAINTS?:
BALANCING INDIVIDUAL
LIBERTIES AND PUBLIC HEALTH
6.1 Introduction
On the foreground were questions framed as involving the extent to which the
community is entitled to protect itself at the expense of the rights of the
individual. This collective/individual tension becomes acute in the
management of diseases where the source of contagion and mode of
transmission involve human behaviour.1
Sometimes, rights are in conflict. State measures purporting to protect and
advance certain rights may, in particular contexts, infringe upon others,
requiring reconciliation between the objectives served by the different sets
of rights. This is not only the case in the regulatory context (as was
illustrated in chapter 5), but also in other instances where communal rights
can only be protected through a measure of individual sacrifice.
It is therefore important for a study into the impact of rights on the
health system to acknowledge that rights embody tensions within
themselves, which can complicate the system’s ability to respond to
external health threats. More often than not, focusing only on treatmentrelated rights when studying the health system obscures the fact that the
operation of the system impacts also on a myriad of other rights, which
must be respected in advancing the system’s overall aims. This chapter
thus focuses on the constraining effect of rights on the ability of the system
to achieve these aims, in the specific context of disease prevention and the
protection of environmental health.
Given their crucial public importance and their frequently coercive
nature, public health measures, that aim to curb the spread of infectious
1
E Cameron ‘Legal and human rights responses to the HIV/AIDS epidemic’ (2006) 17
Stellenbosch Law Review 37 51.
151
152
Chapter 6
diseases,2 present a textbook example of such tensions between individual
liberties and broader societal objectives. The trade-offs perceived as being
inherent to these tensions are considered to be particularly sensitive, since
they appear to involve either the sacrifice of fundamental individual
interests or the compromise of public health and safety. They also often
occur in the context of acute stigma, fuelled by an environment of fear,
uncertainty, or even outright public hysteria.3
Yet, to regard human rights and public health as being in binary
opposition and to depict their reconciliation in times of health-threatening
epidemics as requiring either of them to yield to the other is overly
simplistic.4 Similarly, it is erroneous to view the public health/human
rights trade-off as simply boiling down to a choice between upholding
individual or communal interests. Disease has individual (behavioural) as
well as societal (health-system-related and other structural) determinants.
To over-emphasise either of these inevitably distorts the picture.5 On the
one hand, persons whose rights and freedoms are curtailed under a
particular public health measure also derive significant individual benefit
from enhanced population health flowing from a well-functioning health
protection system. On the other, there is immense collective benefit
associated with the protection of the fundamental rights of all individuals
within a society.6
Moreover, public health and human rights can be polarised only if our
understanding of human rights is restricted to civil and political rights.
Where a society also acknowledges and protects socio-economic rights,
public health protection itself contributes to the fulfilment of important
2
3
4
5
6
Whereas the notion of public health refers broadly to a range of collective measures
aimed at securing, advancing and protecting population health, the focus of this
chapter is on the subset of public health measures aimed at protecting the public
against the spread of dangerous infectious diseases. On the meaning of public health
and the various measures that fall under it see, for example, R Bowser & LO Gostin
‘Managed care and the health of a nation’ (1998-1999) 72 Southern California Law
Review 1209 1217-1218; LO Gostin et al ‘The law and the public’s health: A study of
infectious disease law in the United States' (1999) 99 Columbia Law Review 59 67;
S Nadasen Public health law in South Africa: An introduction (2000) 15-16.
See EB Abbott ‘Law, federalism, the Constitution and control of pandemic flu’ (2008)
9 Asian-Pacific Law & Policy Journal 185 200; Cameron (n 1 above) 51; E Cameron &
E Swanson ‘Public health and human rights – the AIDS crisis in South Africa’ (1992)
8 South African Journal on Human Rights 200 232; A McHarg ‘Reconciling human rights
and the public interest: Conceptual problems and doctrinal uncertainty in the
jurisprudence of the European Court of Human Rights’ (1999) 62 The Modern Law
Review 671 678-679; M Pieterse & A Hassim ‘Placing human rights at the centre of
public health: A critique of Minister of Health, Western Cape v Goliath’ (2009) 126 South
African Law Journal 231 231.
L London ‘Confinement in the management of drug-resistant TB: The unsavoury
prospect of balancing individual human rights and the public good’ (2008) 1 South
African Journal of Bioethics & Law 11 11-12.
See M Pieterse ‘The interdependence of rights to health and autonomy in South
Africa’ (2008) 125 South African Law Journal 553 556, 565.
JF Childress & RG Bernheim ‘Beyond the liberal and communitarian impasse: A
framework and vision for public health’ (2003) 55 Florida Law Review 1191 1194-1195;
McHarg (n 3 above) 677.
Rights as restraints?: Balancing individual liberties and public health
153
human rights obligations. For instance, the United Nations Committee on
Economic Social and Cultural Rights has indicated that it understands the
right to health in article 12 of the International Covenant on Economic,
Social and Cultural Rights as entailing, inter alia, an obligation to establish
and maintain a responsive public health system that effectively combats
the spread of infectious epidemic and endemic diseases.7 Several regional
human rights treaties also explicitly guarantee a right to disease prevention
as part of the right to health,8 whereas others acknowledge that public
health measures may legitimately limit individual liberty.9 These
provisions recast the public health/individual rights impasse as a conflict
between competing rights, rather than between rights and an extraneous,
hostile government purpose.
While the fact that public health measures serve an important human
rights purpose does not completely insulate them from human rights-based
attack, it does mean that public health objectives cannot simply be
dismissed outright in every instance where they impact detrimentally on
the exercise of individual liberties.10 Where public health objectives and
individual liberties clash, it would neither be correct to assert that
individual interests must simply yield to the common good – as is
sometimes advanced by public health proponents – nor be entirely
appropriate to assume that the collective goal is plainly trumped by
individual liberties in a Dworkinian sense – as could be argued in contexts
where the legitimacy of civil and political rights, but not of socio-economic
rights, is assumed.11
Given that tensions between public health and individual liberties are
essentially tensions between competing rights, it may seem fitting to resort
to a fairly straightforward balancing or proportionality exercise when
having to reconcile individual liberties with the public health objectives
that appear to demand their limitation.12 But, as Denise Meyerson warns,
7
8
9
10
11
12
UNCESCR General Comment No 14 The Right to the Highest Attainable Standard of
Health (Art 12 of the Covenant) (2000) para 16, pertaining specifically to art 12(2)(c) of
the ICESCR, which determines that steps taken towards the progressive realisation of
the right to health must include ‘[t]he prevention, treatment and control of epidemic,
endemic, occupational and other diseases’.
See art 16 of the African Charter on Human and Peoples’ Rights; art 11 of the
European Social Charter; arts 10-11 of the Additional Protocol to the American
Convention on Human Rights in the Area of Economic, Social and Cultural Rights.
See art 5(1)(e) of the European Convention on Human Rights.
See Bowser & Gostin (n 2 above) 1223; London (n 4 above) 12. On the manner in
which socio-economic rights bolster the legitimacy of laws and policies aimed at their
progressive realisation where such laws and policies also impact detrimentally on the
exercise of civil or commercial rights, see M Pieterse ‘The legitimizing/insulating
effect of socio-economic rights’ (2007) 22 Canadian Journal of Law & Society 1 2, 8, 18.
Pieterse & Hassim (n 3 above) 232. On the application of the Dworkinian ‘rights as
trumps’ model in this context, see McHarg (n 3 above) 673-674; D Meyerson ‘Why
courts should not balance rights against the public interest’ (2007) 31 Melbourne
University Law Review 873 878, 881-884, 902.
On balancing as the appropriate paradigm where competing rights are at stake, see
McHarg (n 3 above) 673-674; Meyerson (n 11 above) 879, 886.
154
Chapter 6
the premise that both the individual right and the collective purpose behind
its limitation carries equal moral weight would more often than not result
in jeopardising the individual right. This is simply because a public health
measure would inevitably appear to serve the interests of a greater number
of persons and thus to outweigh individual concerns. In order to protect
vulnerable individuals and to afford due weight to fundamental individual
rights, Meyerson accordingly argues that the balancing scales should at the
outset be tilted towards upholding the fundamental interests that are
infringed, rather than those that are advanced, by the measures in
question.13
An approach to balancing that would allow limitation of individual
liberties only in exceptional circumstances, notwithstanding the human
rights-legitimacy of the limiting measure, would appear particularly
necessary in the context of public health. This is, first, because public
health measures are steeped in an authoritarian and coercive tradition and
are often invoked by governments as a knee-jerk reaction to epidemics, in
times of widespread panic, and under significant public pressure to be seen
to be ‘doing something’ to curb the (often exaggerated) threat of disease14
– think, for instance, of the often far-reaching and disproportionate state
responses to the worldwide H1N1 ‘swine flu’ epidemic in 2010. They
accordingly tend to be overzealous and to impact harshly on the rights of
a particularly vulnerable subset of society – in this case, those who are ill
or in danger of falling ill.15 Secondly, public health policies tend, either in
their conception or their implementation, to disproportionately target
members of stigmatised and marginalised groups and also themselves
contribute to stigmatising the ill,16 hence giving rise to additional human
rights violations.17 Accordingly, such measures tend to be counterproductive, in that their effect is to drive people away from the health
system, for fear of the adverse physical and social consequences that might
13
14
15
16
17
Meyerson (n 11 above) 878, 882-884, 889, 902. See also Childress & Bernheim (n 6
above) 1202.
See M Pieterse ‘Disentangling illness, crime and morality: Towards a rights-based
approach to HIV prevention in Africa’ (2011) 11 African Human Rights Law Journal 57
L Gostin & JM Mann ‘Towards the development of a human rights impact assessment
for the formulation and evaluation of public health policies’ (1994) 1 Health & Human
Rights 58 74; M Kirby ‘The never-ending paradoxes of HIV/AIDS and human rights’
(2004) 4 African Human Rights Law Journal 163 167; London (n 4 above) 12; Meyerson
(n 11 above) 886; Pieterse & Hassim (n 3 above) 231; D Puzio ‘An overview of public
health in the new millenium: Individual liberty v public safety’ (2003-2004) 18 Journal
of Law & Health 173 186, 189-190.
On disease-related stigma and its interaction with patterns of social marginalisation
and vulnerability see, for instance, S Burris ‘Disease stigma in US public health law’
(2002) 30 Journal of Law, Medicine & Ethics 179; PM Eba Stigma[ta]: AIDS Review 2007
(2008) 23-52; M Pieterse ‘Impeding access? Stigma, individual responsibility and
access to post-HIV-exposure-prophylaxis (PEP) in South Africa’ (2011) 30 Medicine &
Law 279 281; Pieterse (n 14 above) 59-62 and authorities cited there.
For example, the public response to the 2003 SARS epidemic evoked stigmatisation of
and discrimination against persons of Asian descent in afflicted Western nations. See
Childress & Bernheim (n 6 above) 1205 and authorities cited there.
155
flow from being labelled as a ‘public health threat’. This logically has a
negative impact on public health, thereby undermining not only individual
liberties, but also the collective socio-economic rights that the measures
were designed to advance.18
Indeed, it has convincingly been shown that respect for and protection
of individual rights enhances public health, by reducing stigma, by
increasing public trust and voluntary participation in public health
programmes and by directing affected individuals towards, rather than
away from, the health system, in order to obtain appropriate care.19 This
has especially been borne out by worldwide experiences relating to HIV
and AIDS, where the scale of the pandemic, the unprecedented stigma
associated with the disease, as well as its unique biological and social
characteristics, have highlighted the limitations and shortcomings of
'traditional' approaches to public health. While conventional, coercive
public health measures (such as isolation and disease notification
measures), as well as more punitive responses (such as criminalising HIVtransmission), have proved simply to be ineffective, impractical and
counterproductive in curbing the epidemic,20 human rights-based
approaches (such as information campaigns, anti-discrimination
protection and treatment-based incentives for testing) have had significant
positive consequences, not only for individuals living with the disease, but
also for public health.21
In summary, therefore, public health objectives may not be trumped
outright by individual liberties and may, due to themselves being based in
the obligation to protect the right to health and related socio-economic
rights, legitimately limit such liberties. However, it is nevertheless
imperative, also for the sake of the public health, that measures aimed at
its protection respect individual rights as far as is possible. To ensure this,
it is necessary to approach the exercise of balancing public health
objectives against individual rights from a starting point that favours
upholding individual rights. As will be shown below in the South African
context, a structured limitations analysis (such as that required by the
majority of contemporary human rights systems) allows for (and indeed
requires) such an approach.
18
19
20
21
Burris (n 16 above) 182; Cameron (n 1 above) 53; Cameron & Swanson (n 3 above)
232; Gostin & Mann (n 15 above) 63, 75; Gostin et al (n 2 above) 92-93; LO Gostin &
Z Lazzarini Human rights and public health in the Aids pandemic (1997) 51, 103.
Cameron (n 1 above) 54-55; Cameron & Swanson (n 3 above) 202; Childress &
Bernheim (n 6 above) 1197, 1207; Gostin & Mann (n 15 above) 75, 77; Gostin &
Lazzarini (n 18 above) 43, 47; London (n 4 above) 12; Pieterse & Hassim (n 3 above)
232; Pieterse (n 14 above) 68.
See, for instance, Cameron & Swanson (n 3 above) 204, 207; Eba (n 16 above) 34-38;
Z Lazzarini et al ‘Evaluating the impact of criminal laws on HIV risk behavior’ (2002)
30 Journal of Law, Medicine & Ethics 239 247; Pieterse (n 14 above) 64-66 and authorities
cited there.
See Cameron (n 1 above) 52-55; Cameron & Swanson (n 3 above) 212-213; Kirby (n 15
above) 167-168.
156
Chapter 6
In section 6.2 below, I exposit and elaborate on a human rights impact
assessment developed by American public health scholars to measure the
appropriateness of state responses to public health threats. This assessment
assists in identifying and understanding the various considerations that
come into play when balancing public health objectives against individual
rights and that should accordingly inform a limitations analysis. Section
6.3 then shifts the focus to the South African health system. It briefly
characterises the historical role of public health law within the health
system, before illustrating how the introduction of a constitutionally
ensconced Bill of Rights has disrupted the public health paradigm. Within
the new, constitutional paradigm, the section then sets out the different
civil and political rights, as well as socio-economic rights, that are
implicated by coercive public health measures. Subsequently, it
contemplates the manner in which the general limitations clause in section
36 of the South African Constitution facilitates the balancing of competing
rights and interests in this context. In section 6.4, I conduct a human rights
analysis of the current South African government responses to a
burgeoning MDR and XDR-tuberculosis (XDR-TB) epidemic, in order to
show how the principles enunciated in earlier sections should play out in
practice. Thereafter, the section provides a critique of the South African
High Court decision in Minister of Health, Western Cape v Goliath,22 arguing
that the human rights analysis employed there in relation to the
involuntary isolation of XDR-TB patients was severely defective. In
conclusion, section 6.5 advances that, given the level of individual sacrifice
often required for effective public health in times of epidemics, it is
necessary for public health measures to uphold the individual rights of
affected citizens as far as is possible.
6.2 Assessing the human rights impact of public
health policies
In the mid-1990s, well-known American public health scholars Lawrence
Gostin and Jonathan Mann advocated for the application of a multi-step
‘human rights impact assessment’ to public health laws and policies in the
United States.23 Their analysis, which elaborated on the UN Economic
and Social Council's Siracusa Principles on the Limitation and Derogation
Provisions in the International Covenant on Civil and Political Rights, aimed to
traverse the gap between conventional public health thinking and human
rights scholarship and activism, and to illustrate that human rights
compliance could enhance the effectiveness of public health policies.24
Their proposed approach to incorporating human rights concerns in the
design and evaluation of public health policies has since been emulated
22
23
24
2009 (2) SA 248 (C).
Gostin & Mann (n 15 above). See also Gostin & Lazzarini (n 18 above) 58-67.
See Gostin & Mann (n 15 above) 59-60.
157
closely by many scholarly models for balancing public health objectives
against the burdens they impose on individual liberties,25 also in the South
African constitutional context.26
For Gostin and Mann, the first step in reconciling the objectives served
by a particular public health measure with respect for individual rights
should be to develop a clear and precise understanding of the public health
purpose sought to be achieved by the measure in question. This would
require an appreciation of the real nature of the public health threat that is
to be targeted, which in turn depends on the availability of accurate and
comprehensive epidemiological data.27 Clearly articulating the purpose of
potentially invasive public health measures, Gostin and Mann argued,
would not only ensure that the measures are well-targeted, but would also
‘facilitate public understanding and debate around legitimate health
purposes’ and would unmask ‘prejudice, stereotypical attitudes, or
irrational fear’ that may underlie a particular legal measure.28
Once the purpose of a public health measure has been clarified, its
effectiveness should be assessed, again with reference to available
epidemiological data. Policies that either fail to achieve – or, at least, to
significantly advance – their stated purpose, or that are, in fact, inimical to
that purpose, should accordingly not lightly be pursued.29 For instance,
many countries abandoned initial policies aimed at isolating persons who
tested HIV positive as a means of preventing the spread of HIV, as these
were not only impractical and ineffective, but also directly subverted their
own purpose by discouraging HIV testing.30
To pass muster, public health policies should further be well-targeted.
This means that they must neither be over-inclusive – such as where
quarantine or isolation measures target all persons likely to suffer from a
particular disease rather than only those who would be at risk of spreading
it – nor so under-inclusive as to defeat their purpose – as would be the case
where only a minority sub-group of those likely to spread a disease are
targeted for quarantine or isolation. Policies should further be regarded
with suspicion where they target, or impact disproportionately on,
members of vulnerable, stigmatised or minority groups.31
25
26
27
28
29
30
31
See, for example, Childress & Bernheim (n 6 above) 1202-1203; R Coker et al
‘Detention and the evolving threat of tuberculosis: Evidence, ethics, and law’ (2007) 35
Journal of Law, Medicine & Ethics 609 613. For an earlier application of the Siracusa
principles in the same context, see Cameron & Swanson (n 3 above) 202-203.
See, for instance, London (n 4 above) 13; Pieterse & Hassim (n 3 above) 232-233.
Gostin & Mann (n 15 above) 61; Gostin & Lazzarini (n 18 above) 57; Coker et al (n 25
above) 612-613.
Gostin & Mann (n 15 above) 61-62. See also Gostin & Lazzarini (n 18 above) 59-60;
Childress & Bernheim (n 6 above) 1202; Coker et al (n 25 above) 614.
Cameron & Swanson (n 3 above) 212-213.
Gostin & Mann (n 15 above) 63-69. See also Gostin & Lazzarini (n 18 above) 62-63;
Gostin et al (n 2 above) 121; Childress & Bernheim (n 6 above) 1204; Coker et al (n 25
above) 613.
158
Chapter 6
Once the goal, effectiveness, reach and coverage of a coercive public
health policy has been established, the focus should turn to the human
rights burden it imposes. This involves ‘identifying all potential
infringements on human rights [allowed for or required by the policy] and
evaluating those likely to occur’.32 For Gostin and Mann, this requires
ascertaining the nature of each right infringed, the degree of each
infringement – usually corresponding to the invasiveness of the public
health intervention – the frequency and scope of the infringement as well
as its duration.33 As will be further elaborated below, the civil and political
rights typically impacted by public health policy are the rights to freedom
and security of the person, bodily integrity, freedom of movement, equality
and privacy. Socio-economic rights that tend to be implicated in this
context include the right to health, rights pertaining to conditions of
detention and rights to basic necessities such as food, water and social
security.
In then weighing the extent of the human rights burden imposed by a
measure against the importance of its purpose, the crucial question to be
asked is whether the measure represented the least invasive manner in
which the purpose could be achieved. Where options with a less restrictive
impact on human rights clearly and practicably present themselves, a
challenged policy is unlikely to survive scrutiny.34 This was also the crux
of the finding of the European Court of Human Rights in the well-known
matter of Enhorn v Sweden, in which the Court declared unlawful the
isolation of an HIV-positive patient, who was considered to be at risk of
spreading the disease, given that less restrictive means to achieve the
purpose of the measure were not considered.35
Accordingly, on Gostin and Mann's model, implementation of a
public health policy should proceed only where the purpose of the policy
has been clearly articulated; where the policy is realistically able to achieve
its goal, is well-targeted and non-discriminatory; where the human rights
burden it imposes is justified by the importance and urgency of the public
health purpose at stake and where this purpose cannot be achieved through
less restrictive means. Finally, Gostin and Mann advise that
implementation of the measure should proceed only in relation to persons
and circumstances where there is a real, probable and significant risk of the
public health threat materialising, and that implementation processes
should be fixed, fair, transparent and duly respectful of the interests of
impacted individuals.36
32
33
34
35
36
Gostin & Mann (n 15 above) 71.
Gostin & Mann (n 15 above) 74-75. See also Siracusa Principle 11; Cameron &
Swanson (n 3 above) 202-203; Childress & Bernheim (n 6 above) 1203; Gostin &
Lazzarini (n 18 above) 65-66; Gostin et al (n 2 above) 123-124.
(2005) 41 EHRR 633 paras 44, 55.
Gostin & Mann (n 15 above) 75-77. See also Enhorn v Sweden (n 35 above) paras 36-37,
44; Gostin & Lazzarini (n 18 above) 66-67; Gostin et al (n 2 above) 121-123.
159
6.3 Public health and the South African Bill of Rights
The prevailing legal culture under apartheid was an authoritarian one, and
the public health law of the era was no exception. Laws passed by the
sovereign parliament awarded extensive coercive powers to public health
authorities, which could not be checked for adherence to human rights
standards. Resulting public health policies were often potentially severely
restrictive, discriminatory and disproportionate to their goals. For
example, the state’s response to the dawning Aids crisis in the mid-1980s
was to pass measures allowing for the compulsory notification of HIV
status and the potential isolation – or, in the case of non-citizens,
deportation – of Aids-sufferers. While never implemented – due to their
impracticality, given the face and the scale of the epidemic – these
measures were symptomatic of the totalitarianism of the era and of the
government's general disregard for human rights.37
A completely different legal culture was ushered in with the
democratic dispensation. The interim Constitution, for the first time in
South African history, contained a Bill of Rights, which required an
entirely different approach to law. As Etienne Mureinik contended at the
time:
If the new Constitution is a bridge away from a culture of authority, it is clear
what it must be a bridge to. It must lead to a culture of justification - a culture
in which every exercise of power is expected to be justified; in which the
leadership given by government rests on the cogency of the case offered in
defence of its decisions, not the fear inspired by the force at its command. The
new order must be a community built on persuasion, not coercion.38
The 'culture of justification' of which Mureinik spoke was also to pervade
public health law, where it had the effect of elevating the rule of law and
adherence to the proportionality principle in the formulation and
implementation of public health policies.39
As to substantive requirements for public health policies, the 1996
Constitution contains a range of civil and political rights alongside equally
justiciable socio-economic rights, several of which inform the individual/
collective balancing exercise in relation to public health.
37
38
39
See, specifically in relation to the response to HIV, Cameron & Swanson (n 3 above)
201; E Cameron ‘Human rights, racism and Aids: The new discrimination’ (1993) 9
South African Journal on Human Rights 22 22-23; Cameron (n 1 above) 49-50; C Ngwena
‘Responses to Aids and constitutionalism in South Africa’ (2003) 24 Obiter 299 300,
302-303.
E Mureinik ‘A bridge to where? Introducing the interim Bill of Rights’ (1994) 10 South
African Journal on Human Rights 31 32.
See London (n 4 above) 13-14; Ngwena (n 37 above) 300-301, 305, 312; Pieterse (n 14
above) 67.
160
Chapter 6
On the one hand, the international law obligation to ensure ‘the
prevention, treatment and control of epidemic, endemic, occupational and
other diseases’ through establishing and maintaining a responsive public
health system,40 finds constitutional expression in a range of provisions in
the Bill of Rights. Prime amongst these is section 24(a) of the Constitution,
which determines that ‘everyone has the right to an environment that is not
harmful to their health or well-being’. While there has been little judicial
or legislative contemplation of the nature and scope of the section 24 right
and of the manner in which it interacts with the other rights in the Bill of
Rights,41 the adoption and implementation of public health measures are
clearly required by the state's obligation to protect the right.42 The
Constitutional Court has recently indicated, in the related context of
section 35(2)(e) of the Constitution, that non-compliance with this
obligation to provide protection against infectious diseases should, in
appropriate circumstances, lead to the state being held liable for damages
in delict.43
Access to effective health promotion and protection services is then
further required by, for instance, the right of access to health care services
in section 27(1)(a) and the right to dignified conditions of detention,
including adequate health care, in section 35(2)(e). The preamble of the
National Health Act 61 of 2003, which forms the legal backbone of the
South African health system and the legislative source of current public
health powers, therefore unsurprisingly lists these rights, alongside section
24(a), as constituting its constitutional foundation and the basis for its
objectives.
At the other end of the scale, the civil right that is most pertinently
implicated by coercive public health policies is that to individual
autonomy, different elements of which are entrenched in section 12 of the
1996 Constitution. Section 12 determines (in relevant part):
(1) Everyone has the right to freedom and security of the person, which
includes the right –
(a) not to be deprived of freedom arbitrarily or without just cause …
(2) Everyone has the right to bodily and psychological integrity, which
includes the right –
(a) to make decisions concerning reproduction;
40
41
42
43
ICESCR art 12(2)(c), as interpreted by UNCESCR General Comment 14 (n 7 above)
para 16.
For a discussion, see L Feris ‘Constitutional environmental rights: An under-utilised
resource’ (2008) 24 South African Journal on Human Rights 29 30, 35.
London (n 4 above) 12-13. Section 7(2) of the Constitution determines that ‘the state
must respect, protect, promote and fulfill the rights in the Bill of Rights’.
Lee v Minister of Correctional Services 2013 (2) SA 144 (CC) paras 59-60, 65. See also the
judgment of the SCA in this matter, reported as Minister of Correctional Services v Lee
2012 (3) SA 617 (SCA) paras 36, 38, 42, 55, 59. The facts and finding of Lee are
discussed in chapter 3 above at 3.2.7.
161
(b) to security in and control over their body; and
(c) not to be subjected to medical or scientific experiments without their
informed consent.
Public health policies tend to impact on two aspects of section 12. First,
measures such as isolation or quarantine, which involve a physical
restriction of liberty, are clearly in conflict with the section 12(1)(a) right
not to be deprived of freedom arbitrarily or without just cause. According
to the Constitutional Court in De Lange v Smuts NO, deprivations of
physical liberty will offend section 12(1)(a) unless they are both
substantively just and procedurally fair.44 To be regarded as substantively
just, law or policy which restricts physical liberty must be rationally
connected to a constitutionally acceptable legal objective – in this case,
protecting the public health. Moreover, it may restrict liberty only to the
extent necessary to achieve the objective and only where there are no less
restrictive means available to do so.45 Where the deprivation of liberty
amounts to detention, the conditions of detention will also impact on the
substantive justice thereof.46 While the degree of procedural justice
required in cases of non-punitive detention – such as isolation for purposes
of public health – would vary depending on the nature, purpose, duration,
locality and circumstances of detention, the Constitutional Court seems at
least to require that such detention must be pursuant to procedures that are
legally prescribed, fair and that allow for some degree of judicial oversight
in appropriate circumstances.47 Any form of public health isolation or
quarantine which falls short of the standards enunciated here will be found
to limit section 12 of the Constitution. This does not necessarily mean that
they would be unconstitutional, but instead triggers an inquiry into
whether they are constitutionally justifiable in terms of the general
limitations clause, as will be elaborated below.
Secondly, where public health measures involve medical treatment,
they implicate the right to ‘security in and control over the body’, which
forms part of the broader right to bodily and psychological integrity in
section 12(2) of the Constitution and is often construed to encompass the
doctrine of informed consent.48 Adherence to the tenets of informed
consent is crucial for public health programmes, since voluntary
44
45
46
47
48
1998 (3) SA 785 (CC) paras 17-23.
Paras 30, 40-41, 101, 134, 176. See also M Bishop & S Woolman ‘Freedom and
security of the person’ in S Woolman et al (eds) Constitutional law of South Africa (2 ed
2006) ch 40 41; I Currie & J de Waal The Bill of Rights handbook (5ed 2005) 296-298;
J de Waal ‘Revitalising the Freedom Right? De Lange v Smuts NO 1998 (3) SA 785
(CC)’ (1999) 15 South African Journal on Human Rights 217 223-224; Pieterse & Hassim
(n 3 above) 236-238.
Pieterse & Hassim (n 3 above) 239-240. See also notes 53-55 below and accompanying
text.
De Waal (n 45 above) 221, 226. See also De Lange (n 44 above) paras 57, 91, 101, 134,
143, 179; Bishop & Woolman (n 45 above) 22, 36-37, 42-44; Currie & De Waal (n 45
above) 301; Pieterse & Hassim (n 3 above) 239-240.
Gostin & Mann (n 15 above) 74; Pieterse (n 5 above) 558-560 and authorities cited
there.
162
Chapter 6
compliance and adequate dissemination of information are key to their
success.49 The doctrine's constitutional ensconcement further means that
legal provisions which authorise medical treatment without informed
consent in the interests of the public health – such as, for example,
provisions which authorise mandatory immunisation50 – will be held to
limit the right to bodily integrity and will thus be impermissible in the
absence of constitutionally acceptable justification.
Apart from the right to freedom and security of the person, coercive
public health measures frequently impact the right to freedom of
movement – such as where patients are physically restricted in the course
of isolation or quarantine measures – as well as the right to privacy – as in
the case of publicly notifiable diseases, or where physicians are authorised
to breach doctor-patient confidentiality and warn patients’ contacts that
they are at risk of contracting a particular disease.51 Because they
inevitably target particular segments of the population, sometimes wrongly
rely on generalisations and stereotypes and often have the (albeit mostly
unintended) effect of exacerbating illness-related stigma, public health
measures also frequently require justification for the extent to which they
infringe upon the rights to dignity and equality.52
A number of socio-economic rights are also impacted by public health
measures. First, where isolation or quarantine measures involve the
detention of patients or their contacts in health facilities or the like, rights
which prescribe minimum conditions of detention are implicated. Section
35(2)(e) of the Constitution, which determines that
everyone who is detained, including every sentenced prisoner, has the right to
conditions of detention that are consistent with human dignity, including at
least exercise and the provision, at state expense, of adequate
accommodation, nutrition, reading material and medical treatment
has been held to apply also to instances of non-criminal detention, such as
49
50
51
52
Gostin & Mann (n 15 above) 72; WE Parmet ‘Informed consent and public health: Are
they compatible when it comes to vaccines?’ (2005) 8 Journal of Health Care Law &
Policy 71 73, 98-101, 107.
In South Africa, sec 7 of the National Health Act 61 of 2003 requires that a patient’s
informed consent be obtained before a health service is provided, but allows for
treatment without informed consent in certain exceptional circumstances, which
include instances where treatment has been authorised by law or court order (sec
7(1)(c)) or where failure to treat would pose a significant risk to public health (s 7(1)(d).
Section 9 of the Act further prescribes procedures to be followed in instances where a
person is admitted to a health establishment without her informed consent.
On infringements of the right to privacy by way of public health measures, see Puzio (n
15 above) 183, 185; S Roehrs ‘Privacy, HIV/AIDS and public health interventions’
(2009) 126 SALJ 360 as well as the facts and decision of the Constitutional Court in
Mistry v Interim National Medical and Dental Council 1998 (4) SA 1127 (CC), which will
be discussed below.
See Burris (n 16 above) 186; Gostin & Mann (n 15 above) 64, 66-67; Pieterse (n 14
above) 59-62 and authorities there cited.
163
detention for public health purposes.53 Commentators agree that, since
public health detention is not punitive, the conditions set out in section
35(2)(e) constitute the bare minimum to which patients under isolation or
quarantine should be entitled.54 Where public health detention fails to
meet these minimum standards, this therefore not only impacts on the
legitimacy of detention under section 12 of the Constitution, but may also
amount to an independent breach of section 35(2)(e).
The extent of the protection awarded by section 35(2)(e) overlaps with
that which people enjoy under other socio-economic rights. For instance,
section 35(2)(e)’s determination that detention creates an entitlement to
adequate nutrition at state expense complements the right to have access
to adequate food in section 27(1)(b) of the Constitution, and underlines the
importance of ensuring that isolation or quarantine measures do not lead
to infringements of rights to have access to the basic necessities of life.55
Given that section 35(2)(e) presents the minimum entitlements inherent to
public health detention and does not exclude the operation of other socioeconomic rights, the rights of access to adequate food and water, social
security and basic education ‒ guaranteed, respectively, by sections
27(1)(b); 27(1)(c) and 29 of the 1996 Constitution – also independently
apply to public health patients. Public health policies will arguably fall foul
of these rights not only where provision of the services to which they
pertain is absent or inadequate in detention settings, but also where
measures prohibit individuals from accessing these services, or from
ensuring that their dependents do so.
Importantly, section 35(2)(e)’s entitlement to ‘adequate medical
treatment at state expense’ compliments the right to have access to health
care services in section 27(1)(a) of the Constitution. Together with the right
not to be refused emergency medical treatment under section 27(3) of the
Constitution, these rights operate to ensure that public health detention
would not be constitutionally legitimate where unaccompanied by
adequate treatment for the medical condition in question.56 This accords
with the accepted view under public health experts that the provision of
medical treatment is a major incentive to ensure voluntary compliance
with public health programmes and that it should accordingly form a
central pillar of all such measures.57
53
54
55
56
57
Lawyers for Human Rights v Minister of Home Affairs 2004 (4) SA 125 (CC) paras 41-42.
See also Goliath (n 22 above) para 34.
Abbott (n 3 above) 202; Pieterse & Hassim (n 3 above) 238-239; C van Wyk
‘Tuberculosis and the limitation of rights in South Africa’ (2009) 72 Tydskrif vir
Hedendaagse Romeins-Hollandse Reg 92 111.
Abbott (n 3 above) 202, 204.
Van Wyk (n 54 above) 111.
See Minister of Health v Treatment Action Campaign (No 2) 2002 (5) SA 721 (CC) para
125; Cameron (n 1 above) 81; Kirby (n 15 above) 178; Puzio (n 15 above) 187.
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Indeed, it is possible to argue that public health measures should be
tailored to enable access to medical care and that measures which, through
their potential impact either on the right to freedom and security of the
person, the right to equality or the right to privacy, have the effect of
driving people away from the health system and which accordingly
function as a barrier to accessing treatment, constitute an infringement of
the right of access to medical care.58 For example, when, in the late 1990s,
the South African government published draft regulations which intended
to make HIV a notifiable disease, it was argued that the extent to which the
regulations would discourage individuals from seeking HIV testing and
treatment amounted to an infringement of section 27(1)(a) of the
Constitution.59
It is clear that the South Africa Bill of Rights' comprehensive coverage
of civil and political rights as well as socio-economic rights allows for a full
and context-sensitive analysis of the human rights burden occasioned by
particular public health measures. The Bill of Rights then also structures
the weighing of this burden against the constitutional importance of the
purpose of the measures that impose it. This it does by determining, in its
general limitations clause, that infringements of rights in the Bill of Rights
are not lawful unless they are capable of constitutionally acceptable
justification. Section 36 of the 1996 Constitution determines:
(1) The rights in the Bill of Rights may be limited only in terms of law of
general application to the extent that the limitation is reasonable and
justifiable in an open and democratic society based on human dignity,
equality and freedom, taking into account all relevant factors, including –
(a) The nature of the right;
(b) The importance of the purpose of the limitation;
(c) The nature and extent of the limitation;
(d) The relation between the limitation and its purpose; and
(e) Less restrictive means to achieve the purpose.
(2) Except as provided in subsection (1) or in any other provision of the
Constitution, no law may limit any right entrenched in the Bill of Rights.
Section 36 will thus be the venue for the balancing of public health
objectives against individual rights in all instances where they are found to
be in conflict. It is significant that the general limitations clause – which
places a burden of justification on the state for all infringements of
individual rights – rather than the Constitution's derogation provision,
58
59
K Pillay ‘Notification of AIDS and health rights’ (1999) 2 ESR Review 7.
Pillay (n 58 above). For further discussion of the draft policy (which was never
pursued) and its potential negative impact on sec 27(1)(a) and other rights, see Ngwena
(n 37 above) 311-312. The same argument has been made in relation to the actual or
proposed criminalisation of HIV transmission in various jurisdictions. See Pieterse (n
14 above) 65-66.
165
which provides for the suspension of certain individual rights during
national states of emergency, is the venue for this balancing exercise. It is
clear both from the phrasing of the derogation clause in section 37 of the
Constitution and from the international law that informs it, that public
health emergencies would rarely, if ever, qualify as national states of
emergency – where the derogation of rights is required in order to ‘restore
the peace and order’ in times where ‘the life of the nation is threatened by
war, invasion, general insurrection, natural disaster or other public
emergency’.60 Rather, public health emergencies would trigger the
application of laws and policies which limit individual rights, which laws
and policies should be capable of justification under section 36.61
Section 36 broadly envisages a proportionality or balancing inquiry,
where the extent of the human rights burden imposed by a law is weighed
against the reasons advanced in its justification.62 At the outset, the
balancing scale is tilted towards upholding the individual right, in that the
onus during the justification ‘stage’ of legal proceedings, where the
infringement of an individual right is alleged, rests on the state.63 In line
with Meyerson’s argument that the balancing scales for public health and
human rights must at the outset be tilted towards the latter,64 this means
that a public health measure which infringes individual rights would be
unconstitutional and invalid unless the state discharges its onus and shows
that the infringement is reasonable and justifiable in an open and
democratic society based on dignity, equality and freedom. Commentators
agree that this would require the state to present compelling reasons in
favour of upholding the limitation.65
An important threshold requirement posed by section 36 is that
limitations of individual rights may only take place in terms of law of
general application. This presents an important safeguard for individual
rights in that it requires all limitations thereof to adhere to the tenets of the
legality principle.66 In the context of public health, this means that section
36 disallows the ad hoc limitation of rights in knee-jerk reaction to
particular epidemics. Instead, it requires that reasonable and justifiable
laws and policies, which adhere to all tenets of the legality principle, are
60
61
62
63
64
65
66
Quotation from sec 37 of the 1996 Constitution. See Siracusa Principle 39; Currie &
De Waal (n 45 above) 802-803; N Fritz ‘States of emergency’ in S Woolman et al (eds)
Constitutional law of South Africa (2ed, OS 03-07) ch 61 17-19.
See Fritz (n 60 above) 6.
Ngwena (n 37 above) 300-301; S Woolman & H Botha ‘Limitations’ in S Woolman et
al (eds) Constitutional law of South Africa (2ed, OS 07-06) ch 34 93.
Ngwena (n 37 above) 300; Woolman & Botha (n 62 above) 44-45; Currie & De Waal
(n 45 above) 166-167. This accords with Siracusa Principle 12.
See n 13 and accompanying text.
Currie & De Waal (n 45 above) 164; Ngwena (n 37 above) 301-302; Pieterse & Hassim
(n 3 above) 241.
Currie & De Waal (n 45 above) 168-169; Pieterse & Hassim (n 3 above) 242-243;
Woolman & Botha (n 62 above) 48-50. On the importance of adherence to the legality
principle in the public health context, see further Enhorn (n 35 above) paras 36-37.
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ordinarily in place and may be invoked whenever the need arises to limit
individual rights in the interests of public health.
Once the threshold of legality is passed, section 36 broadly requires,
first, that the state offers a constitutionally acceptable reason for limiting
the right in question and, secondly, that it shows that there is sufficient
proportionality between the rights infringed and the purpose served by the
limitation.67 The provision then contains a list of factors that courts must
consider when deciding these questions. These are particularly illustrative
in the public health context, since they allow for consideration of all of the
factors highlighted by Gostin and Mann's human rights impact
assessment. First, section 36(1)(a) requires consideration of the nature of
the rights infringed by the measure. Secondly, under section 36(1)(b), the
importance of the purpose of the limiting measure should be considered.
In this respect, courts are likely to attach significant weight to the fact that
protection of public health is a social goal that coincides with the state's
obligation to ensure a healthy and safe environment under section 24 of the
Constitution.68 Section 36(1)(c) then requires an appreciation of the extent
of the human rights burden imposed by the measure, before section
36(1)(d) mandates an inquiry into the effectiveness of the measure.
Ultimately, as with Gostin and Mann’s analysis, the key question to be
answered under section 36 is whether the purpose of the measure could be
achieved in a manner that is less restrictive of the individual rights in
question.69
A good example of the application of the proportionality exercise
envisaged by section 36, in relation to the impact of public health measures
on the right to privacy, is provided by the Constitutional Court judgment
in Mistry v Interim Medical and Dental Council, which was decided in terms
of the equivalent provisions of the interim Constitution. The case involved
section 28(1) of the Medicines and Related Substances Control Act 101 of
1965, which gave inspectors of medicines extensive powers of inspection,
search and seizure over places and premises where they had reason to
suspect medicines covered by the Act were present. The constitutionality
of the provisions was challenged by a health care practitioner, who had
various items seized from his surgery which was searched, in terms of the
provision, in his absence. The Constitutional Court found that the ambit
of the provision was so broad as to constitute an infringement of the right
to privacy,70 and proceeded to determine whether this infringement was
reasonable and justifiable in terms of the general limitations clause.
67
68
69
70
Currie & De Waal (n 45 above) 176, 182-183.
Pieterse (n 10 above) 3, 9. See also Siracusa Principle 25, where protection of public
health is specifically regarded as a purpose that may justify the limitation of individual
rights.
Currie & De Waal (n 45 above) 184; Pieterse & Hassim (n 3 above) 232.
Mistry (n 51 above) para 23.
167
In conducting the proportionality exercise, the Court emphasised the
important public health principle served by the provision, which was
aimed at ensuring ‘the proper inspection and regulation of the multiple
health undertakings in modern society which impact on the welfare and
general well-being of the community’.71 However, it regarded the extent of
the limitation occasioned by the provision on the enjoyment of the right to
privacy as severe – seeing that the search powers in terms of the provision
extended to ‘any premises’, including private residences, whereas the
seizure powers allowed confiscation of a range of non-medicinal and
potentially personal items, including ‘any document’.72 It was obvious to
the Court that there were less restrictive means through which to achieve
the purpose served by the provision,73 leading it to conclude that the extent
of the invasion of the right to privacy occasioned thereby was ‘substantially
disproportionate to its public purpose’.74 The provision was accordingly
declared unconstitutional.
Overall, it would appear that the Bill of Rights allows for an
adequately tilted balancing framework, that includes consideration of all
the factors regarded by Gostin, Mann and others, in relation to the
weighing of individual rights against public health goals. In the following
section, this framework is applied to a particularly controversial South
African public health crisis.
6.4 Rights, limitations and the prevention of multidrug resistant (MDR) and extreme drug resistant
(XDR) tuberculosis
6.4.1
Applying a human rights framework to current laws, policies
and practices aimed at MDR and XDR-TB prevention
South Africa’s growing MDR and XDR-TB crisis presents a major
challenge to, and a serious indictment against, its public health system.
While individual non-adherence to treatment for TB is often singled out as
the main cause of drug-resistance,75 multiple systemic factors have shaped
the nature and the scope of the South African epidemic. These include
inadequate co-ordination of disease prevention efforts, lack of (or
irregular) access to adequate care, poor conditions and inadequate
71
72
73
74
75
Para 26.
Para 28.
Para 29.
Para 30.
See C Bateman ‘XDR TB - Humane confinement “a priority”’ (2007) 97 South African
Medical Journal 1026 1027; PA Carstens ‘The involuntary detention and isolation of
patients infected with extreme resistant tuberculosis (XDR-TB): Implications for
public health, human rights and informed consent: Minister of Health, Western Cape v
Goliath 2009 2 SA 248 (C)’ (2009) 30 Obiter 420 420-421; Van Wyk (n 54 above) 92.
168
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infection control in hospitals and isolation facilities, poor implementation
of directly observed treatment (DOTS) programmes and systemic failure to
address the HIV pandemic.76 Moreover, severe poverty, difficulties in
adhering to TB treatment – which is complicated, painful, ongoing and has
significant side-effects – and widespread fear and stigma associated with
the disease further contribute to limit the effectiveness of prevention and
treatment efforts.77
Unfortunately, the government response to this burgeoning public
health crisis has been haphazard and uneven. While aiming to provide
community-based and directly observed TB treatment where the capacity
to do so exists, and to educate the community about the dangers of TB,
methods of preventing infection and the importance of seeking and
adhering to treatment, the Department of Health has simultaneously
pursued isolation of MDR and XDR-TB patients.
Ostensibly aimed at curbing the spread of the epidemic while at the
same time ensuring proper treatment-administration and adherence,
implementation of isolation policies has been inconsistent. Patients have
for instance only been isolated in areas where there are facilities to care for
them, and then only when beds in facilities become available. There are
also reports of patients being periodically discharged and readmitted into
isolation facilities, for various reasons. This has obviously curtailed the
effectiveness of isolation measures. Moreover, the duration and poor
conditions of isolation – likened, by some patients, to prison conditions –
as well as the poor preparation and support of isolated patients and the fact
that, according to a somewhat bizarre social security policy, indigent
patients forfeit their disability or social security grants for the period of
their hospitalisation, have undermined voluntary co-operation therewith
and have sparked significant patient protests as well as high-profile
'escapes' from detention-facilities.78
Disconcertingly, the above practices have been pursued in the absence
of a legal framework. When the 2003 National Health Act – which
contains provisions pertaining to medical treatment without consent but
76
77
78
See Bateman (n 75 above) 1028; LO Gostin ‘The resurgent tuberculosis epidemic in
the era of AIDS: Reflections on public health, law and society’ (1995) 54 Maryland Law
Review 1 128; London (n 4 above) 12, 17; Pieterse & Hassim (n 3 above) 233, 244-245;
KH Rothenburg ‘Something old, something new: The challenge of tuberculosis
control in the age of AIDS’ (1994) 42 Buffalo Law Review 715 755; JA Singh et al
‘XDR-TB in South Africa: No time for denial or complacency’ (2007) 4 PLOS Medicine
19 20; 23; D van Rensburg et al ‘Tuberculosis control in South Africa: Reasons for
persistent failure’ (2005) 1 Acta Academica Supplementum 1 31-41. For recent figures on
the state of the TB epidemic in South Africa, see N Redelinghuys ‘Health and health
status of the South African population’ in HCJ van Rensburg (ed) Health and health care
in South Africa (2ed 2012) 237 273-74.
See London (n 4 above) 11; Pieterse & Hassim (n 3 above) 233-234; Van Rensburg et al
(n 76 above) 31-32, 39-41; Van Wyk (n 54 above) 94-95.
See Bateman (n 75 above) 1027-1028; Pieterse & Hassim (n 3 above) 234, 241; Singh et
al (n 76 above) 20-21.
169
not to isolation per se – was brought into operation, previously applicable
regulations pertaining to isolation and other disease prevention measures
were repealed, but never replaced. At the time of writing, isolation
practices had for some 7 years been guided by draft Department of Health
guidelines, which have no legal status. Commentators have uniformly
lambasted this state of affairs, which obviously fails to adhere to the
principle of legality.79
Involuntary isolation of MDR and XDR-TB patients in the manner
described above imposes a significant human rights burden. It clearly
limits the right to freedom of movement in section 22 of the 1996
Constitution. When pursued routinely, it also infringes the right to
freedom and security of the person in section 12, given increasing evidence
of equally effective, but less restrictive, approaches to curbing the disease –
involving a combination of directly observed treatment, community-based
care and education of patients’ close contacts.80 This arguably justifies a
conclusion that the extent to which liberty is being curtailed by current
isolation practices is disproportionate to the objective of the curtailment.
This infringement would be exacerbated where conditions of involuntary
isolation are inadequate, which would also violate the right to dignified
conditions of detention in section 35(2)(e) of the Constitution. The
discontinuation of social security grants for the period of isolation infringes
the right to have access to social security in section 27(1)(c), whereas the
practice of isolation would further impact on the exercise of the rights to
privacy (section 14), dignity (section 10), equality (section 9) and freedom
of association (section 18).81
Moving to the general limitations clause in section 36 of the
Constitution, it is clear that current isolation practices should be found
unconstitutional simply for their failure to adhere to the principle of
legality.82 But, even if regulations codifying the current isolation practices
were to be duly promulgated, it is unlikely that they would survive the
scrutiny envisaged by section 36. Whereas the public health purpose
behind isolation practices – curbing the spread of a barely treatable, deadly
disease – is clearly of crucial importance, this is not in itself sufficient to
outweigh the significant human rights burden imposed by isolation in its
current form.
79
80
81
82
See A Hassim et al The National Health Act 61 of 2003: A guide (2008) 26; A Nienaber
‘The involuntary isolation of patients with XDR-TB: Is the term “health service” in
section 7 of Act 61 of 2003 interpreted too broadly?’ (2009) 24 SA Public Law 659 667;
Pieterse & Hassim (n 3 above) 244; Van Wyk (n 54 above) 92, 99, 112.
See Pieterse & Hassim (n 3 above) 242 and authorities cited there; Rothenberg (n 76
above) 754; Gostin (n 76 above) 127.
On the extent of the human rights burden described here, see further London (n 4
above) 15-16; Pieterse & Hassim (n 3 above) 238; Van Wyk (n 54 above) 100.
Pieterse & Hassim (n 3 above) 243.
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Three factors listed in section 36 weigh against upholding the current
application of isolation guidelines. First, the extent of the limitation
imposed by isolation on individual rights and its impact on the lives of
patients and their dependants, which has to be taken into account in terms
of section 36(1)(c), is severe. Given that XDR-TB is difficult (and
sometimes impossible) to cure, isolation lasts many months, years or even
indefinitely. It is also traumatic – patients are allowed limited contact with
family members or friends, treatment is painful, unpleasant and associated
with many side-effects, and conditions of isolation are often poor. Isolation
further has dire economic consequences for the patient – who cannot
engage in employment while hospitalized and will also not receive social
grants – and for dependent family members.83 Secondly, concerning the
relation between the limitation and its purpose in terms of section 36(1)(d),
the haphazard implementation of isolation measures means that they are
simply not effective. Indeed, when taking into account that TB contact
transmission tends to occur before initial diagnosis, that conditions in
isolation facilities sometimes contribute to the spread of TB and that fear
of isolation prevents people from seeking diagnosis and care in the first
place, there is a strong argument to be made that current practices are
counterproductive.84 Thirdly, as alluded to above, there is increasing
evidence that less restrictive measures, such as providing incentives for
treatment adherence, directly observed treatment and community-based
care are, in the most cases, at least equally effective in curbing the spread
of drug-resistant TB.85
It is therefore clear that the human rights standards and limitation
requirements contained in the Bill of Rights pose substantive requirements
to which isolation measures must adhere in order to pass constitutional
muster. First, isolation guidelines must satisfy the principle of legality.
Then, given the above assessment in terms of section 36, guidelines may
legitimately provide for isolation only as a last resort, in relation to
particular patients who pose a clear and present danger to the public
health, and in relation to whom all reasonable less restrictive measures
have been attempted without success. The implementation of isolation
policies must further aim at curbing their detrimental impact on the lives
and rights of patients as far as is possible and must be accompanied by high
levels of procedural justice.86
83
84
85
86
London (n 4 above) 16; Pieterse & Hassim (n 3 above) 241.
Coker et al (n 25 above) 613; Gostin et al (n 2 above) 95; London (n 4 above) 14-15;
Pieterse & Hassim (n 3 above) 241; Van Wyk (n 54 above) 107-108.
Childress & Bernheim (n 6 above) 1203; Gostin et al (n 2 above) 124; London (n 4
above) 16; Pieterse & Hassim (n 3 above) 241-242; 245 and authorities cited there; Van
Wyk (n 54 above) 109.
These conclusions are supported by London (n 4 above) 16-17; Ngwena (n 37 above)
302; Pieterse & Hassim (n 3 above) 242; Singh et al (n 76 above) 21-23; Van Wyk (n 54
above) 110-112.
6.4.2
171
How not to apply a human rights framework: Minister of
Health, Western Cape v Goliath
Given that the South African jurisprudence on the application of the right
to freedom and security of the person is fairly well-developed, and since the
structure of the balancing exercise to be conducted where laws and policies
infringe on that right is explicitly constitutionally prescribed, it is both
surprising and disappointing that the first South African court called upon
to consider the constitutionality of coerced isolation of XDR-TB patients,
authorised the isolation after but the scantest of human rights analyses.
In Minister of Health, Western Cape v Goliath, the Cape High Court
granted an application by the provincial MEC for Health, for an order
authorising compulsory detention of four infectious XDR-TB patients at a
Cape Town treatment facility. Despite initially consenting to their
isolation, the patients periodically absented themselves from the facility,
out of dissatisfaction with the duration and conditions of their isolation,
and in order to fulfil various personal responsibilities – including taking
care of children and other family members and honouring financial
obligations. Staff at the facility also complained that the patients were
recalcitrant, unruly and disrespectful.87 In opposing the application, the
patients claimed that their continued detention was in violation of the right
to freedom and security of the person in section 12 of the Constitution and
that the conditions of their isolation infringed the standards set by section
35(2)(e) of the Constitution. Two of the patients died during the course of
the trial.
Departing from the premise that ‘the respondents’ contact with their
families and other members of the public creates a severe public health risk
of infecting others with XDR-TB,’88 the Court accepted that the
compulsory isolation of the respondents amounted to a deprivation of their
freedom. However, it did not regard this deprivation as being ‘arbitrary’ or
‘without just cause’, for the simple reason that both international and
foreign law recognised that restriction of individual liberties in the interest
of public health was sometimes justified.89 This was also sufficient reason
for the Court to find that any infringement of the respondents’ rights to
freedom of movement or security of the person occasioned by the isolation
was both reasonable and justifiable in terms of section 36 of the
Constitution.90
Whereas the Court expressed concern about the lack of a valid and
workable regulatory framework applying to involuntary isolation in the
interests of public health, it felt that, since isolation could be regarded as a
87
88
89
90
Goliath (n 22 above) paras 16-18.
Para 15.
Paras 19, 21, 29-30.
Para 21.
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health service, it fell within the ambit of section 7 of the National Health
Act 61 of 2003 – which provides for circumstances in which health services
may be provided to patients without their informed consent – and that it
was accordingly not in breach of the legality principle to isolate the
respondents against their will.91 As to conditions of isolation, the Court
was prepared to accept that section 35(2)(e) of the Constitution applied to
persons in the position of the respondents, but dismissed the respondents’
counter-application for a declaratory order that the conditions of their
isolation infringed the provision, since this could not be established on the
evidence before the court.92
Accordingly, the Court granted an order authorising the respondents’
admission to the health facility and directed that they were to remain
isolated there until ‘they have fulfilled the criteria for negative sputum
culture conversion for XDR tuberculosis for a period of three consecutive
months’.93 If necessary, the sheriff was authorised to enlist the assistance
of the South African Police Services in enforcing this order.94
While it has been welcomed by at least one commentator,95 the Goliath
decision presents significant cause for concern. The Court approached the
balancing exercise from a starting point that favoured upholding public
health, rather than individual rights. Indeed, once it accepted the
importance and international legitimacy of the public health purpose
behind the isolation practices of the provincial health authority, it basically
neglected to conduct a human rights impact analysis at all. In the process,
it failed to adhere to the approach laid down by the Constitutional Court
for the application and interpretation of the right to freedom and security
of the person96 and also neglected to conduct the proportionality inquiry
explicitly prescribed by section 36 of the Constitution. Instead, it upheld
the limitation of the respondents’ rights solely on the basis of the
importance of the purpose of the limitation, without inquiring as to
whether this purpose was served by the isolation practices in question or
whether it could have been achieved through less restrictive means.97 This
brings to mind Meyerson’s warning that, unless the public interest/
individual rights balance is at the outset explicitly skewed towards
upholding individual rights, courts will lightly tend to sacrifice them in the
face of weighty public concerns.98
91
92
93
94
95
96
97
98
Paras 23-8.
Paras 34-41.
Para 43.1(a), (c).
Para 43.1(b).
Carstens (n 75 above) 423-427, 429.
In De Lange (n 44 above). See notes 44-47 above and accompanying text, as well as
Pieterse & Hassim (n 3 above) 235-240.
Pieterse & Hassim (n 3 above) 235, 241.
See note 13 above and accompanying text.
173
Equally disconcerting is the Goliath court’s preparedness to jettison the
legality principle in order to enable health authorities to deal with the
XDR-TB crisis. The finding that isolation constituted a ‘health service’ and
could thus be authorised in terms of section 7 of the National Health Act –
which provides for instances where health services may be provided
without patients’ informed consent – is simply not reconcilable with the
purpose of the provision, which is narrowly focused on the provision of
medical treatment.99 In truth, while several other provisions in the
National Health Act could be read to provide residual authority for
isolation, none were specific enough to satisfy the dictates of the legality
principle in this context, in the absence of detailed regulations that could
substantively guide decisions to isolate as well as their implementation.100
In effect, the court in Goliath was moved by the scale and urgency of the
XDR-TB crisis to authorise the respondents' isolation in terms of draft
regulations, as well as statutory provisions that did not strictly apply to
their situation. This sets a dangerous precedent and compellingly
illustrates the need for a detailed legal and policy framework that protects
the rights of patients against overzealous public responses to threats of
disease.
Finally, the Goliath judgment worryingly displays the tendency, also
evidenced in much societal discourse around public health threats, to
locate responsibility for the spread of disease in infected individuals
themselves. Instead of considering the structural causes for the XDR-TB
epidemic in South Africa and engaging with the health system’s multiple
failures to address it at community level, the court depicts the conduct of
the respondents – not complying adequately with their treatment regimes,
resisting isolation, behaving in an unruly and disrespectful manner
towards hospital staff – as the source of the public health threat and,
accordingly, as justification for their isolation. Adila Hassim and I have
criticised this aspect of the judgment as follows:
These passages firstly depict isolation as a form of punishment for abhorrent
behaviour and secondly locate the cause of the respondents’ XDR-TB
infection in their own conduct. This is not only inaccurate (the respondents
have not been convicted of any criminal offense and are therefore not
deserving of punishment, and XDR-TB is not only spread through deliberate
non-adherence to treatment but also through person-to-person transmission)
but displays a severe lack of sensitivity to the extremely trying circumstances
in which XDR-TB patients find themselves. More perniciously, these dicta
serve to shift the blame for the respondents’ illness and the responsibility for
the containment of the epidemic onto the respondents themselves, thus
99
Nienaber (n 79 above) 664-667; Pieterse & Hassim (n 3 above) 243. Cf Carstens (n 75
above) 428.
100 Pieterse & Hassim (n 3 above) 243-244. This applies both to sec 9 of the National
Health Act, which stipulates procedures for the admission of patients to health
facilities without their informed consent, and to sec 25(2)(w) of the Act, which grants
provincial MEC’s for Health the power to ‘provide services for the management,
prevention and control of communicable and non-communicable diseases’.
174
Chapter 6
denying the complicity of the state in the creation of the epidemic and
absolving broader society from shouldering its consequences. This is patently
unfair, incompatible with a human rights approach to health and clearly
contributes to the further marginalization and stigmatization of XDR-TB
patients.101
Overall, the Goliath judgment is a sober reminder that the existence of a
constitutionally prescribed human rights framework means little if not
accompanied by institutional willingness to stay true to its principles.
Courts are clearly as prone to being swept along by public panic over the
treat of disease as are health officials and policy makers. This underlines
the need for a predetermined, context specific, rights-based legal
framework for responding to public health threats that guides both the
form and content of public health responses and the manner in which they
are reviewed.
6.5 Conclusion
In an era where the threat of new, dangerous and contagious diseases is
ever-increasing, the importance of responsive and effective public health
measures cannot be over-emphasised. However, history has shown that, if
left unchecked, public health powers can easily become ‘instruments of
oppression and stigmatisation’.102 Public health laws and policies need to
be recast, not only in order to respond effectively to emerging health
threats in a globalised world, but also to ensure that individual rights
remain protected in the process.
This chapter sought to illuminate the extent and content of the human
rights responsibilities that rest on governments in this context. It has shown
the need for reconciling public health interests and individual rights by way
of a structured inquiry that is weighted in favour of individual rights and
has engaged with the suggested content of such an inquiry. It then showed
how the constitutional guarantee of civil and political rights as well as
socio-economic rights lends substance to public health efforts and
discussed the impact of individual civil and socio-economic rights on
public health measures. While this impact is significant, at least in South
Africa, the chapter has also illustrated that the enforcement of individual
rights in a context of public fear remains problematic.
It is important to keep in mind that restrictive public health practices
inevitably require of individuals to sacrifice their own interests, often at
significant personal cost, in order to protect the welfare of a society that
101 Pieterse & Hassim (n 3 above) 245. See also London (n 4 above) 12, 16-17; Pieterse (n
5 above) 556, 568, 572; Pieterse (n 14 above) 73.
102 Ngwena (n 37 above) 304.
175
was complicit in the creation of the health threat in question.103 As a
minimum, society owes those individuals an effort to restrict their basic
rights as little as is possible in the circumstances. Rather than to ‘impose
community’ by way of coercive measures that ‘demand and enforce
individuals’ responsibilities to the community', public health measures
should seek to ‘express community’ by ‘extending solidarity to its
individual members’ through respecting, protecting, promoting and
fulfilling their basic rights.104 Moreover, health system strengthening,
rather than individual scapegoating, should be the key response to public
health threats.105
Respect for basic human rights in the course of public health efforts
enhances trust in the health system and encourages voluntary co-operation
with public health measures which, especially in cases of sudden and
urgent threats or emergencies, is integral to their success.106 Authorities
cannot therefore afford not to take individual rights seriously when striving
to protect society from the threat of disease.
103 Pieterse (n 14 above) 73; Pieterse & Hassim (n 3 above) 245; Singh et al (n 76 above)
23.
104 Childress & Bernheim (n 6 above) 1208.
105 See Pieterse (n 14 above) 74.
106 Gostin & Lazzarini (n 18 above) 50; Gostin et al (n 2 above) 120-121; Parmet (n 49
above) 99-100; YA Vawda & BK Baker ‘Achieving social justice in the human rights/
intellectual property debate: Realising the goal of access to medicines’ (2013) 13
African Human Rights Law Journal 55 60.
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can rights cure? - PULP - University of Pretoria

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