The Gauteng High Court in Johannesburg on Friday upheld the rights of all pregnant and lactating women, as well as children under six, to be provided with free health services a public hospitals. It said these rights are included for foreign and undocumented patients.
Analysts say the ruling is a humanitarian triumph but politically dangerous as “it may kneecap an already buckling public healthcare system and stoke already explosive levels of xenophobic populism”.
Former health minister Dr Aaron Motsoaledi said a few years ago that “the weight that foreign nationals are bringing to the country has nothing to do with xenophobia”, but with reality.
And Last year, Health Minister Dr Joe Phaahla mooted billing countries of origin of foreign patients. In the light of this week’s court order, this now seems unlikely.
A regional health official, Dr Phophi Constance Ramathuba, was also filmed ranting at a Zimbabwean patient about the cost of treating foreigners; telling it was putting a huge strain on her health budget.
However, Sharon Ekambaram of Kopanang Africa Against Xenophobia said the matter was “but one component of a broader crisis of institutionalised xenophobia”.
Public interest law centre, Section27, said it welcomes the court’s decision.
Section27 explained that the court ordered that the policy introduced by the Gauteng Department of Health in 2020, that denied free healthcare services to foreign pregnant women and young children, was now declared unlawful.
The Gauteng Department of Health was also ordered to amend its policy by 16 October 2023.
“The court also declared that any other similar policies or circulars that prevent pregnant and lactating women and children under six from accessing free health services are declared inconsistent with the National Health Act and are invalid,” it said.
Two orders to increase awareness
The court also made two orders to spread and increase awareness of the court order.
Firstly, the National Department of Health will have to issue a circular to all provincial departments of health by 15 May 2023. The circular must state that pregnant and lactating women, as well as children under six, who are not members of medical aid schemes and did not come to South Africa for healthcare, are eligible for free health services at any public health facility.
Secondly, the National Department of Health was instructed to prepare and display posters or notices in all health establishments in all provinces no later than 17 July 2023.
“The posters must state that all pregnant women, all lactating women, and all children below six years of age are entitled to free health services at any public health facility, regardless of their nationality or documentation status, unless they are members of medical aid schemes or came to South Africa solely for healthcare,” Section27 said.
The order follows a court application brought in May 2022 by Section27, together with two women who were denied access to free health services while pregnant and another whose young child was denied free healthcare.