The Gauteng department of health is “insensitive and a law unto itself” in its treatment of cancer patients, the Johannesburg high court has found.
The court’s judgment could lead to the procurement from the private sector of life-saving radiation oncology treatment for patients who are still on the waiting list.
The Cancer Alliance last week scored a major victory for patients across Gauteng who are facing the life-threatening disease, successfully arguing that the province was falling short of its constitutional responsibilities.
“The provincial health respondents have conducted themselves as a law unto themselves and have decided it is inappropriate to be held to account to the applicant, who has been acting in the public interest,” reads the judgment handed down on Thursday.
“Backlog list patients have already passed away, waiting for such treatment that has not been forthcoming. Actual, irreparable harm has already occurred, continues to occur and is reasonably apprehended,” it said.
“The provincial health respondents appear insensitive and dismissive of the actual harm that has been — and is being — suffered by the cancer patients on the backlog list, to whom they owe (undisputed) constitutional obligations.”
The Cancer Alliance and Section27 brought the matter to court after the failure by the department to provide radiation oncology services to about 3,000 patients who have been waiting for more than three years.
This failure was despite a special allocation of R784m ring-fenced by the Gauteng treasury in 2023 to urgently address the backlog.
About R250m was forfeited back to the national fiscus after the province failed to use it for its intended purpose.
When the money was ring-fenced, the provincial government was aware it could deviate from normal tender processes to procure urgently required radiation oncology treatment for the patients.
Cancer Alliance told the court the department knew that about three months after surgery such patients should receive radiation oncology treatment, and that failure to supply the treatment timeously often leads to earlier death.
Despite the option for emergency procurement, the department issued an open tender, which it advertised six months after the funds were made available to it.
The ring-fenced funds were to be used for outsourcing to assist patients on an urgent basis.
“Notwithstanding the aforesaid, and without any justifiable reason, the provincial health respondents ignored their right to enjoy an outsourced radiation oncology treatment which also flowed from the ring-fenced funds made available for the specific purpose,” reads the judgment.
The MEC of health in the province at the time was Nomantu Nkomo-Ralehoko, who retained her position after last year’s elections.
The court found the government’s failure to implement a plan to provide radiation oncology services at Charlotte Maxeke Johannesburg Academic Hospital and Steve Biko Academic Hospital timeously was unconstitutional.
The court issued an interim order compelling the state to update the backlog list of cancer patients who are awaiting radiation oncology services in Gauteng within 45 days, broken down by hospital.
The court also said the government must “take all steps necessary to provide radiation oncology services to backlog list patients who are awaiting treatment at Charlotte Maxeke Johannesburg Academic Hospital and Steve Biko Academic Hospital in Gauteng at a public and/or private facility”.
DA Gauteng health spokesperson Jack Bloom has called on Gauteng premier Panyaza Lesufi to fire Nkomo-Ralehoko and head of department Lesiba Malotana after the judgment, which he said was a “stunning rebuke of the department”.
Bloom estimated the scandal cost “more lives than the Life Esidimeni tragedy when 144 mental health patients died after being sent to unsuitable NGOs”.
“The ANC should stop protecting MEC Nkomo-Ralehoko as they did when blocking my motion of censure in the Gauteng legislature for her failure to work with cancer interest groups to ensure speedy treatment to save the lives of cancer patients,” Bloom said.
Lesufi’s spokesperson Sizwe Pamla said the provincial government’s legal team was still studying the judgment and would brief the premier at an appropriate time.
“For now, there is no comment,” he said.
With Luyolo Mkentane
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