The Gauteng High Court, in a hard-hitting judgment which civil society groups said was a victory against xenophobia, has ruled that all pregnant women and all children under six have the right to free public health services, regardless of nationality or documentation status, writes MedicalBrief.
The ruling, which also orders government to place notices informing the public of these rights, comes amid a rising number of health xenophobia cases, with foreign nationals being forcibly prevented from accessing care at state hospitals and the Limpopo Health MEC recently being sanctioned for xenophobic comments against a pregnant Zimbabwean woman.
These rights are set out in the National Health Act but were overridden by the Gauteng Health Department in 2020, when it instructed public hospitals to charge migrants for these services, reports Business Day.
The policy was challenged by public interest law centre Section27, which launched legal action last May after complaints from migrant women of harrowing treatment from the Gauteng public health system.
While the case centres on Gauteng, it has national implications as the court ordered the national Health Department to inform all provincial departments by 15 May of its finding that the policy is inconsistent with the provisions of the National Health Act and thus, unlawful and invalid.
Section 4 of the Act says the state must provide free health services to pregnant and lactating women and children under six. The court said any other similar policies or circulars are also invalid.
The national department was also ordered to direct provinces to prominently display notices and posters in all public health facilities by 17 July, stating that pregnant and breastfeeding women and all children under six are entitled to free health services “irrespective of their nationality or documentation status unless they belong to a medical scheme or have travelled to SA for the sole purpose of obtaining healthcare”.
The court order is a significant victory, said Section27, with the body’s attorney Sibusiswe Ndlela saying it strengthened the organisation’s arguments in its 2019 submission on the National Health Insurance Bill. At the time, it raised concerns about the constitutionality of the Bill’s provisions for asylum seekers and migrants, which say they are entitled only to emergency care.
Parliament’s legal adviser told MPs that the Bill’s provisions for asylum seekers stripped them of access to primary health care, reproductive health services and antiretroviral therapy, a retrogressive move that could not be done without compelling justification, which the Department of Health failed to provide.
Section27 brought last May’s High court application with two women who had been denied free health services when they were pregnant, and another woman whose child was denied free health care. It cited the Gauteng Health Department, the Health MEC, the Health Minister and the CEO of Charlotte Maxeke Academic Hospital as respondents.
Section27 said government respondents filed an initial notice of their intention to oppose the matter but subsequently failed to respond to the litigation. As a result, the matter was placed under case management by Deputy Judge President Roland Sutherland, and culminated in the withdrawal of the notice to oppose and the ruling handed down last week.
In a Daily Maverick report, Mbali Baduza, legal researcher at Section 27, said: “The effect of this court order is that it applies across the country… Medical xenophobia or health xenophobia has been on the rise in certain provinces, and this court order makes it clear that all pregnant women and children under six, regardless of their status, can access hospital care for free… and that’s an important precedent.”
A cause for concern
Timely access to comprehensive medical care is essential for all people, but is particularly critical for pregnant and lactating women and children under six who may face additional vulnerabilities, according to Dr James Smith, migration health access adviser for Doctors Without Borders.
“When these groups are denied access to healthcare, the outcomes can be catastrophic. We know that charging for healthcare is one of the biggest barriers to care-seeking in South Africa and globally,” he said.
“We commend this landmark ruling that affirms free access to essential public health services for these groups, whether they are South Africans or non-South African nationals. Moving forward, monitoring and ensuring compliance with the ruling will be essential to ensure equitable receipt of essential maternal and child healthcare for both migrants and South African nationals.”
Dale McKinley, a spokesperson for Kopanang Africa Against Xenophobia (Kaax), said that while Kaax welcomed the court ruling, it should never have been necessary for Section27 to take on the Gauteng Health Department to enforce the Constitution.
“We should be angry that we’ve had to go this far and that we have to continue to force our government to do the most basic things in terms of what our law says,” he said.
This sentiment was echoed by Sharon Ekambaram, head of the Refugee and Migrant Rights Programme at Lawyers for Human Rights and a spokesperson of Kaax. She condemned the circumstances that saw pregnant women denied healthcare and “stripped of dignity”, despite the rights they were entitled to by law.
“It is concerning that our government needs to be reminded of their constitutional obligations as set out in our Constitution and in our policies. This situation is but one component of a much broader crisis of institutionalised xenophobia,” she said.
“We need to understand that we have to hold this government to account… (and) ensure that the constitutional imperative… to transform our country from the conditions of indignity suffered predominantly by black African people under apartheid is enforced by the state.”
Daily Maverick – High-court-upholds-right-of-pregnant-women-young-children-to-free-health-services-regardless-of-documentation-status
See more from MedicalBrief archives:
New booklet clarifies migrants’ rights to free healthcare in SA
NGO takes Health MEC to court for immigrants to access healthcare
Battle looms over migrant rights to access NHI services
Medical xenophobia and discrimination widespread in Gauteng health care