The Gauteng Department of Health has applied for leave to appeal an order – issued by the Gauteng High Court (Johannesburg) recently – compelling it to deal with the backlog of 3 000 cancer patients who have been waiting three years for treatment, saying there is “no urgency” and that “no backlog list” exists.
The judgment declared its failure to deal with the backlog as unlawful and unconstitutional, reports TimesLIVE.
However, the department has now sought leave to appeal to the Supreme Court of Appeal or a full Bench of the High Court.
Cancer Alliance, aided by SECTION27, had taken the department to court to compel it to address the issue of cancer sufferers who have been waiting for treatment for between 18 months and three years.
The resulting 156-page ruling listed the many ways in which the department had not only failed patients but had also “decided it inappropriate to be held to account by the applicant (Cancer Alliance) who has been acting in the public interest”.
Around 3 000 state patients are waiting for treatment at Charlotte Maxeke Johannesburg Academic Hospital and Steve Biko Academic Hospital in Pretoria.
High Court Acting Judge Solly van Nieuwenhuizen declared that the department’s failure – despite having received ring-fenced funds from the National Treasury – to devise and implement a plan to serve these patients was unlawful and in breach of the constitution.
He ordered Cancer Alliance to deliver a copy of the backlog list it had compiled, and for the department to update this within 45 days before taking immediate action to provide radiation and oncology services to those patients.
The judgment came after the department had already been compelled to pay back R250m provided by Treasury for potentially life-saving treatment for cancer patients – because it did not spend a cent of it.
The R250m was the first tranche of a special R784m commitment from Treasury to help clear the backlog by outsourcing treatment to the private sector.
It was paid out in March 2023 and was forfeited at the end of the financial year on 31 March 2024.
However, last week the department struck back, claiming the court had erred in numerous respects.
First, it had wrongly heard the matter as one of urgency “when the matter was not urgent at all”.
It failed to explain why delayed treatment for patients awaiting life-saving treatment was not an urgent matter, referring only to technicalities involving dates and document filings that did not bear correct stamps and signatures.
The department also claimed the court had been wrong to find “a backlog list” existed and that the list, being the term coined by the Cancer Alliance, was the incorrect term for the “waiting list”, the term preferred by the department.
It said the court further erred by declaring it had failed to devise and implement a plan to provide radiation oncology services to patients on this list, and therefore there was no legal foundation for such a declaratory order.
The department said it could therefore not be directed to provide radiation and oncology services to backlog list patients awaiting treatment at public or private facilities because “there is no evidence of a backlog list, nor was one provided to the court”.
The parties are now waiting for the court’s decision on whether the appeal can go ahead.
See more from MedicalBrief archives:
Gauteng Health accuses Cancer Alliance of interference as case postponed
Court orders urgent action to address Gauteng cancer treatment backlog
Unspent R250m cancer treatment funds returned to Treasury