Examining the constitutionality of South Africa’s public health policy in respect of non-nationals

(September 2016)

Mahomed, F (2016). South African Journal of Human Rights, 32, 1, 1-25

Recent events have revived debate about the nature in which South Africa has been able (or not) to embrace the millions of immigrants currently in the country. In this article, I consider the introduction, by the Gauteng province’s Department of Health, of a policy directive which required full upfront payment from non-nationals who could not produce an Identity Document or a refugee or asylum seeker permit in order to access public health services. I demonstrate the retrogressive nature of such policy, before arguing that both the minimum core and reasonableness approaches to the adjudication of socio-economic rights, which are often perceived to be in tension, are indeed inter-related and complementary in the determination of the constitutional validity of the said directive. I place specific emphasis on the principles of inclusivity and non-discrimination and the consideration of vulnerability which are integral to an analysis of the right of access to health care for non-nationals. Paying specific attention to the Constitutional Court’s Grootboom and Treatment Action Campaign judgments in the grounding of these principles, I consider the same court’s findings in the Khosa matter, which dealt specifically with the socio-economic rights of non-nationals. I argue that the Khosa court failed to apply its own standard of reasonableness adequately because it upheld the exclusion of a group of people who were undoubtedly in need of social protection from a government social security benefit offered to citizens. I suggest that the same is true of the policy directive that excludes non-nationals who are unable to produce the required documentation, arguing that such a provision does not adequately address the need for an inclusive approach that incorporates the needs of the most vulnerable. Read more