Health activists say they will oppose the Gauteng health department’s appeal against a High Court judgment that found its failure to provide radiation treatment to thousands of cancer patients was unconstitutional and unlawful. The judgment, handed down in March, also compelled the department to take all necessary steps to provide the patients with the services they required.
The case was brought by the Cancer Alliance, represented by public law advocacy group Section 27, and centres on the department’s failure to spent money set aside in its budget to tackle the province’s radiation oncology backlog.
An estimated 3,000 patients at Charlotte Maxeke Johannesburg Academic Hospital and Steve Biko Academic Hospital are on the waiting list for radiation therapy, used to reduce the risk of cancer recurring after tumours have been surgically removed.
The Gauteng Health department announced on Wednesday that it had been granted leave to appeal against the judgment. “The decision confirms that there are substantial legal grounds warranting further judicial consideration on several critical aspects of the case,” it said in a statement.
Section 27 head of health rights Khanyisa Mapipa said the appeal did not suspend the interim order and the department was therefore obliged to comply with it.
Citing the judgment handed down in March, she said there was no prejudice to the provincial health department in complying with the interim order, as it was constitutionally obliged to provide radiation oncology treatment to the backlog list patients and had already allocated funds from its budget for this purpose.
At the heart of the case is the Gauteng health department’s failure to spend a R784m allocation from the provincial Treasury to clear the backlog of patients waiting or radiation oncology treatment. The services were to be procured from the private sector, over a three-year period starting in 2023/2024, but were so badly delayed the Gauteng health department had to return the first R250m tranche of money to the provincial treasury.
Contrary to advice from the provincial treasury and the national department of health, the Gauteng health department opted for a protracted tender process instead of using legal provisions that would have allowed it to urgently procure services from the private sector, said Section 27.
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