The high court in Johannesburg has upheld the rights of all pregnant women and children under the age of six to free public health services, regardless of their nationality or documentation status.
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. The policy was challenged by public interest law centre section 27, which launched legal action last May in the wake of complaints from migrant women of harrowing treatment at the hands of the Gauteng public health system.
While the case centres on Gauteng, it has national implications as the court ordered the national department of health to inform all provincial health departments by May 15 of its finding that Gauteng’s policy is inconsistent with the provisions of the National Health Act and therefore 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 of health was also ordered to direct provinces to prominently display notices and posters in all public health facilities by July 17 stating that all pregnant and breastfeeding women and all children under the age of 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 health care.
Section 27 said the court order is a significant victory, as it affirms the rights of pregnant and breastfeeding women and children under the age of six to free health services and will contribute to a reduction of SA’s maternal and child mortality.
Section 27 attorney Sibusiswe Ndlela said the ruling 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.
The bill is being considered by parliament’s health portfolio committee, which has received conflicting input from the office of the state attorney and parliament’s legal advisers on whether the proposed legislation passes constitutional muster.
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.
Section 27 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 young child was denied free health care. It cited the Gauteng health department, Gauteng health MEC, the health minister and the CEO of Charlotte Maxeke Academic Hospital as respondents.
Withdrawal
Section 27 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.
The department of health had not responded to Business Day’s request for comment by the time of publication.
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