For months, militant vigilantes have unlawfully prevented people they deemed to be foreign nationals from public healthcare services. SECTION27 health activists Benni Mudau, Khuselwa Dyantyi, and Tendai Mafuma map out the implications of a Gauteng High Court judgment delivered at the end of last year.
Writing in Spotlight, they say the ruling obliges the state to take active and co-ordinated steps to remove barriers hindering anyone’s access to healthcare.
They write:
The landmark Gauteng High Court (Johannesburg) judgment penned by Judge Stuart Wilson regarding anti-immigrant blockades at the Rosettenville and Yeoville clinics goes far beyond a condemnation of xenophobic vigilantism. It is a constitutional reminder that the right of access to healthcare services is far broader than the provision of medical facilities, medicines, beds or staff.
Section 27(1)(a) of the Constitution of the Republic of South Africa, 1996 guarantees everyone the right to healthcare services. Section 27(2) goes further by obliging the state to take reasonable legislative and other measures, within its available resources, to progressively realise that right.
These obligations do not exist in a vacuum. They must be interpreted with those under Section 7(2) of the Constitution, which holds that the state must respect, protect, promote and fulfil the rights set out in the Bill of Rights, including the right of access to healthcare services.
This is the constitutional architecture that frames the Gauteng High Court judgment, and it is this architecture the respondents seemingly and astonishingly endeavoured to ignore.
From healthcare facilities to battlegrounds
For months, vigilante groups placed themselves at the gates of clinics and hospitals, mainly in Gauteng and KwaZulu-Natal, demanding South African identity documents and denying access to those who could not produce one. Foreign nationals (documented and undocumented), asylum seekers, refugees and South African citizens without IDs were barred from entering.
These facilities were not understaffed. They were not closed. They were not short of medication. Instead, the barrier was physical, unlawful and exclusionary, and yet the state did nothing. Some facility managers told SECTION27 they did not know how to respond to the unlawful act and had been instructed by their superiors not to engage, but to focus on providing services to those inside.
When the matter reached the court, national and provincial health authorities argued that what happened outside their gates was not their concern. The SAPS argued that they could only intervene on formal complaints. The City of Johannesburg, directly responsible for the clinics, filed no affidavits at all.
This is precisely the kind of constitutional evasion that Section 7(2) was crafted to prevent.
Wilson’s judgment cuts through this fog of evasion. He makes clear that the right of access to healthcare services includes the right to reach and use those services safely, and without any unlawful interference or discrimination. A clinic with full shelves and trained nurses would not hold any significance if the people for whom it was built to serve cannot enter its gates.
Access to healthcare services is not a right to infrastructure; it is a right to care, which cannot be accessed through a blockade.
The Gauteng High Court’s judgment reaffirms what Judge Leona Theron in the Sonke Gender Justice case taught us a few years ago – the state’s obligation under Section 7(2) of the Constitution requires it to take positive steps to protect individuals’ rights from being infringed by others. This obligation, when read with Section 27 of the Constitution, obliges the state to act positively to identify and eliminate the barriers hindering access to healthcare services.
When the state allows barriers to persist without acting, it violates these obligations.
Wilson applies this principle with clarity. He finds that the national and provincial Health Departments have a direct legal interest in what happens inside and outside the clinics, because eliminating barriers to access falls within their constitutional and statutory obligations.
He finds that police cannot limit their role merely to passively receiving complaints. Instead, Section 205(3) of the Constitution obliges them to prevent criminal activities, maintain public order, and protect all inhabitants.
He also finds that the City of Johannesburg cannot remain silent while its clinics are effectively captured by private individuals.
What the judgment boils down to
This judgment is a powerful repudiation of the thought that the state’s healthcare obligations are limited to providing facilities, staff and medicines. It rejects the very notion that the state can outsource constitutional obligations to communities or public vigilance. It further affirms that the state must act positively, reasonably and effectively to ensure that healthcare services are accessible.
The judgment’s implications go far beyond the two clinics at issue. Across South Africa, people face barriers to accessing healthcare services that are less visible but equally harmful daily, including long queues, discriminatory treatment, inaccessible buildings, language barriers, administrative gatekeeping and the quiet hostility faced by migrants and poor people at public facilities.
These are not inconveniences. They represent a failure to uphold the Constitution's promise of ensuring everyone’s access to healthcare services.
In a country where inequality, fear and exclusion continue to dictate who receives care and who is turned away, Wilson’s ruling is a reminder that the Constitution demands more. It demands that every barrier to healthcare access, be it physical, administrative, or social, be dismantled. It demands that healthcare services be accessible to all who need them. It also demands that the state must act, not only because it is asked to, but because it has obligations to.
Mudau, Dyantyi and Mafuma are with SECTION27. In the court case discussed in this article, SECTION27 represented the Treatment Action Campaign, Médecins Sans Frontiers, and Kopanang Africa Against Xenophobia.
See more from MedicalBrief archives:
Second legal bid to get authorities to act against Dudula vigilantism
Defiant Operation Dudula to appeal ruling
Court orders Operation Dudula to stop targeting migrants