There are growing concerns and questions about why the Gauteng Department of Health is hell-bent on legal appeals rather than compliance with two court orders that directed it to clear cancer treatment and services backlogs in the province, writes Ulfrieda Ho for Spotlight.
Last week, the department filed a late appeal against a 20 August court order that instructed it to comply with an earlier court order from 27 March.
In the March ruling, arising from a case brought by the Cancer Alliance, the High Court found the department’s failure to deliver critical cancer treatment to patients was unconstitutional and unlawful.
At a 2022 count, there were 3 000 patients on a waiting list for treatment.
The Cancer Alliance turned to the courts in 2024 when it said its demands and protests faced continued inaction and non-communication by the department.
It also came after the department failed to spend a R784m allocation granted by the provincial Treasury in 2023 to reduce the treatment backlog by outsourcing services to the private sector over a three-year period.
In the March ruling, the court instructed the department to take immediate action, including diverting patients to private facilities; to provide radiation oncology services to all patients on a backlog list; to update the backlog list within 45 days, submit a detailed progress report on efforts to deliver treatment, and to present a long-term plan for ongoing cancer treatment services within three months.
Instead of complying, the department decided to appeal the ruling at the very end of the deadline period.
This then led to counter legal action by the Cancer Alliance, represented by SECTION27, to ask for the March ruling to be made immediately enforceable, not suspended until an outcome in the Supreme Court of Appeal.
This resulted in the 20 August ruling in favour of the Cancer Alliance, handed down by Judge Evette Dippenaar.
The August court win for the Cancer Alliance was welcomed by activists and opposition politicians as a vital push to initiate treatment for patients, to properly assess the level of the cancer treatment crisis in the province, and to compel the department to set out its ongoing plans to get treatment, and to report back to the courts.
But with this latest legal detour, the matter is now back on appeal with the High Court, with the department seeking to have the 20 August ruling overturned.
The matter will be heard by a full Bench of three judges with a date set for the end of the first week of October. Should the court again find against the department, it will have no further legal recourse until the matter is heard by the Supreme Court of Appeal – no date has yet been set for that hearing.
The ongoing legal wrangle has come at significant costs for taxpayers. The department has lost two challenges in court and had to pay Cancer Alliance’s costs in both cases. The department is represented by senior and junior counsel as well as two attorneys.
Growing concerns
There are concerns from activists and opposition politicians that it is unwilling to comply with the March court order because it may expose a dire picture of patient deaths as a result of its failure to provide services as per its constitutional mandate.
“They are stalling because providing the original list (of patients and backlogs) will show how many people died because they did not get radiation treatment within the 90-day period after chemotherapy or surgery. I suspect there have been more deaths than in the Life Esidimeni tragedy,” said DA shadow health MEC Jack Bloom.
Taxpayer funds are being used for expensive legal fees, he suggested, because Gauteng Health MEC Nomantu Nkomo-Ralehoko is “trying to protect her reputation” and is evading the personal costs order against herself, the Health HoD, and the CEOs of Charlotte Maxeke and Steve Biko hospitals.
Bloom, who has been pushing for the axing of Nkomo-Ralehoko, said “she presides over a failing department plagued by scandals and financial mismanagement”. He asked for a response on this matter from Premier Panyaza Lesufi in the Gauteng legislature last week.
Lesufi’s response was that he would “await the outcome of a mediation process between the department and the Cancer Alliance”.
Lesufi also said he has asked for a calculation of costs on the ongoing court case and added that he did not want to “waste money on court cases that should rather be used to provide hospital treatment”.
Responding, Bloom said: “This matter should never have ended up in court in the first place. The department should have worked with cancer interest NGOs from the start, but it is arrogant and incompetent.”
Partnering with private sector
While the department did not answer Spotlight’s questions, it did send us an address that Nkomo-Ralehoko delivered in the Gauteng legislature on 25 August. She said in her speech that her department has partnered with “several private radiotherapy units to expand access to care and reduce treatment delays”.
As of 25 August, she said 563 patients were actively receiving radiation oncology care through these partnerships and more than 1 000 patients had already successfully completed their treatment.
Nkomo-Ralehoko added that in the past four years “all radiation therapy equipment at Charlotte Maxeke Johannesburg Academic Hospital and Steve Biko Academic Hospital had been replaced with state-of-the-art linac (linear accelerator) machines valued at more than R600m”.
“We have also replaced brachytherapy machines and CT scan machines for [treatment] planning purposes,” she said.
‘Incomplete and incorrect’
However, Salomé Meyer of the Cancer Alliance said the picture being painted by the MEC was “incomplete and incorrect” and did not reflect realities at hospital level.
Meyer said “new” waiting list patients are being channelled to the private sector for treatment, but backlog list patients are treated at Charlotte Maxeke Hospital, where treatment cannot be successfully carried out because of the unresolved equipment and staffing issues. She called the situation “baffling”.
Commenting on having to head to court again on this issue, attorney Khanyisa Mapipa, head of health rights at SECTION27, said: “The Gauteng Department of Health still maintains its open opposition to cancer patients’ plea for cancer treatment. This despite two court orders now that have stated that it is obligated to provide urgent radiation oncology services to backlog patients and to report on their progress … to the court.
“To date, we have no idea how many people have been affected or have died from its failure in this matter,” she added. “It takes a department that is completely removed from its constitutional duties to resist a court order that simply requires it to do its job.”
The Cancer Alliance will challenge the lateness of the department’s application to appeal the 20 August ruling and will argue that the department has not been prejudiced in being compelled to act.
“Our interpretation was that it ought to have filed its appeal the very next week after the judgment but it didn’t. The rule is set up this way to allow the matter to be disposed of as quickly as possible. Remaining in limbo even for three weeks prejudiced both parties but especially the party who is required to comply, unless of course, there is no prejudice in complying,” said Mapipa.
See more from MedicalBrief archives:
Gauteng Health ordered to treat cancer patients – immediately
Gauteng Health accuses Cancer Alliance of interference as case postponed
Gauteng Health sued over unspent cancer millions
Activists march for unused R784m to be spent on cancer patients