Examining the constitutionality of South Africa’s public health policies in respect of non-nationals

Abstract

Recent events have revived debate about the nature in which South Africa has been able (or not) to embrace the millions of immigrants currently in the country. In this article, I consider the introduction, by the Gauteng province’s Department of Health, of a policy directive which required full upfront payment from non-nationals who could not produce an Identity Document or a refugee or asylum seeker permit in order to access public health services. I demonstrate the retrogressive nature of such policy, before arguing that both the minimum core and reasonableness approaches to the adjudication of socio-economic rights, which are often perceived to be in tension, are indeed inter-related and complementary in the determination of the constitutional validity of the said directive. I place specific emphasis on the principles of inclusivity and non-discrimination and the consideration of vulnerability which are integral to an analysis of the right of access to health care for non-nationals. Paying specific attention to the Constitutional Court’s Grootboom and Treatment Action Campaign judgments in the grounding of these principles, I consider the same court’s findings in the Khosa matter, which dealt specifically with the socio-economic rights of non-nationals. I argue that the Khosa court failed to apply its own standard of reasonableness adequately because it upheld the exclusion of a group of people who were undoubtedly in need of social protection from a government social security benefit offered to citizens. I suggest that the same is true of the policy directive that excludes non-nationals who are unable to produce the required documentation, arguing that such a provision does not adequately address the need for an inclusive approach that incorporates the needs of the most vulnerable.