Background

1. According to press reports, a significant number of infants die every year due to the shortage of Intensive Care Unit beds in state hospitals. Critically ill infants are assigned to beds in general hospital wards in which there are insufficient nurses, equipment and medication. In effect, the treatment available is simply inadequate. The harsh reality is that attending doctors are required to make life and death decisions: which infants to assign to ICUs and which to the general wards. Those assigned to general wards are in effect often given a death sentence; all so assigned have a significantly reduced chance of surviving the medical emergency in which they find themselves. That ICU facilities are not accountably, efficiently, effectively and economically operated appears to be clear, based on the information available in the public domain. A child requiring admission to ICU can hardly be regarded as anything other than a medical emergency!

2. The issue we address in this opinion is essentially an exploration of the content and scope of the right to health care set out in the Constitution of the Republic of South Africa (hereafter referred to as “the Constitution”) specifically insofar as this right pertains to children. Put differently, what are the constitutional rights and protections accorded children in relation to health care services and to the extent that the rights and protections of children set out in the Constitution have been infringed through the failure to provide adequate ICU facilities, what remedies are available? We do not, in this opinion, traverse the values and principles which inform the public administration under section 195(1) of the Constitution as the facts pertaining to this aspect of the matter will be more readily available from the report of the Office of the Public Protector in due course. Compliance with the section will be more intelligibly dealt with at that stage. A lack of appreciation by officialdom of the scope of the Bill of Rights and the applicability of the provisions of section 195 of the Constitution is at the core of the complaint which the Institute for Accountability in Southern Africa has lodged. This complaint has been accepted and is under investigation by the Public Protector.

First and Second Generation Rights

3. The Constitution deals with three broad categories of rights, referred to as first (blue), second (red) and third (green) generation rights. The first two require brief consideration as to their focus and differences. When first generation human rights are limited, this directly impacts on second generation rights. Improving first generation rights generally improves socio-economic outcomes.

4. First generation rights include, civil and political rights, and the rights to equality, liberty, property and freedom of speech. They may be described as negative rights in so far as a certain element of power is removed from the State in relation to these rights and the State is prohibited from interfering with these rights in that the State may not act in a certain way. In most cases, given the nature of these rights, they may be implemented immediately through appropriate legislation. However, not all first generation rights are of a negative nature.

5. Second generation rights differ significantly. The right to have access to health care services represents a socio-economic or second generation right. Socio-economic rights are generally positive rights, imposing obligations on the State to take appropriate steps and implement reasonable programmes and measures such that these rights may be realized progressively over time. Certain jurisdictions in fact reject the notion that socio-economic rights are in fact rights at all and regard them rather as aspirations of ideals, thus being non-justiciable. In Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) (hereafter referred to as “Grootboom”), at para 20, the court accepted that socio-economic rights are constitutional rights and thus justiciable.

6. In Minister of Health v Treatment Action Campaign (No2) 2002 (5) SA 271 (CC) hereafter referred to as “TAC”) the court held that a programme for the realization of socio-economic rights had to be balanced and flexible and make appropriate provision for attention to crises and to short, medium and long term needs. Other than in the case of a limited number of socio-economic rights, most of these rights are not capable of immediate implementation; fair labour practices and the right to form a trade union being two of the exceptions. As set out more fully below, the rights of children to inter alia health care set out in section 28(1)(c) cannot be interpreted as being subject to progressive realization and are thus a further exception. In essence, these positive rights may generally be regarded as aspirations which, through the implementation of policies and the allocation of appropriate resources may be realized. Resources are primarily under the control of the State hence the positive obligation on the State to ensure that these rights are progressively realized primarily at the State’s expense. Implementation therefore requires programmes which themselves are dependent on the availability of resources. In relation to socio-economic rights the question is whether the courts should be able to dictate how State budget must be allocated. This depends on the language used in relation to each of the socio-economic rights provisions, more so in the instance of an alleged infringement. Discretion may thus be identified based on the manner in which the right is expressed. Generally, socio-economic rights are resource driven. This raises questions as to whether they are justiciable in a similar manner to first generation rights.

7. In South Africa, socio-economic rights are generally conferred with the express caveat that they be delivered “within [the State’s] available resources, to achieve the progressive realization of these rights.” No such caveat applies to “emergency medical treatment” for all or to “basic health care services” for those under 18 years of age. (sections 27(2) and (3), section 28(1) (c) and (3) of the Bill of Rights)

8. In Soobramoney v Minister of Health (KwaZulu-Natal) 1998 (1) SA 765 (CC) (hereafter referred to as “Soobramoney”), the court held that socio-economic rights are resource driven (at para 29). Tsotetsi v Mutual and Federal Insurance Company Ltd 1997 (1) SA 585 (CC), dealt with a social benefit programme developed by the State (the Multilateral Motor Vehicle Accidents Fund Act, 1989) which limited damages recoverable due to injuries sustained in a motor vehicle accident. A declaration of constitutional invalidity would have serious financial implication on the State. The court would not readily make an order that would distort the financial affairs of a welfare programme. In Grootboom, the court held that in interpreting socio-economic rights, the first obligation was one of progressive realization. The second obligation is one of means in so far as the State cannot be forced to do more than its available resources allow (at para 46). The content of the obligation, the rate at which it is achieved as well as the reasonableness of the measures employed are governed by the availability of resources (at para 40). Consequently, individuals cannot claim all socio-economic rights on demand. Rather, the State must devise and implement a coherent and coordinated adequately funded plan to meet its obligations (at para 95).

9. Should the State fail to act to achieve realization of the rights, by having no programme in place, or provide insufficient resources, then the Court may rule that inaction to be unconstitutional (Grootboom, paras 68-69). Importantly, the decision of what level of resources to allocate really involves constitutional politics rather than constitutional law (Constitutional Law: Analysis and Cases, Ziyad Motala; Cyril Ramaphosa, pg 399).

10. For the purpose of this opinion, the focus will be on second generation socio-economic rights, specifically the right to have access to health care, principally dealt with in section 27 of the Constitution, supplemented by section 28 of the Constitution in relation to children.

Scope of Constitutional Provisions relating to Health Care

11. The right to have access to health care services is dealt with in different sections of the Constitution as follows:

• the right to have access to health care services (including reproductive health care) and the right to emergency medical treatment (section 27);
• the right to basic health care services for children (section 28(1)(c)); and
• the right to adequate medical treatment for detained persons (section 35(2)).
• 12. Essentially, at the highest level there is a broad and general positive right for everyone to have access to health care services. Children are entitled to “basic” health care services in terms of section 28(1)(c) and detainees are entitled to “adequate” health care services in terms of section 35(2). Under section 12(2) the right to bodily and psychological integrity is also guaranteed in various ways. There is a separate, negative, right to emergency medical treatment, contained in section 27(3), applicable to everyone, thus including children. This statutory structure requires that the rights of children to health care be interpreted in relation to both section 27 and section 28(1)(c), the significant difference being that the rights in section 27(1) are expressly qualified and subjected to the “available resources” limitation, whereas the rights in section 28(1)(c) are not. These are possibly competing rights and it is therefore critical to identify the content of each of these rights and whether any limitations or qualifications apply. More so as the Constitution does not define “health care services”, “emergency medical treatment”, “basic health care services” or “adequate medical treatment”. These concepts have been considered to some extent by the courts and are discussed more fully below.

13. The specific rights set out in sections 27 and 28(1)(c) must also be read in conjunction with sections 7, 9, 10, 11 and 36 of the Constitution. The rights set out in the Bill of Rights, while expressed individually, are not discrete but are rather elements of overarching fundamental rights protection(Grootboom at para 83). The individual rights set out in the Bill of Rights therefore comprise a suite of rights which must be viewed collectively as making up an overall right to health (Fundamental Principles of South African Medical Law, P Carstens and D Pearmain, pg 26, hereafter referred to as “Carstens and Pearmain”).

14. Section 27(1) deals, inter alia, with the right to have “access” to health care services and does not provide for an absolute and direct right to health care services. Access is a concept that presupposes that the required health care services (facilities and human resources) exist when required. Section 28(1)(c) however does not make reference to a right to have access thus indicating that the rights of children in terms of section 28(1)(c) are more akin to a direct right to basic health care services.

The National Health Act

15.The National Health Act, 61 of 2003, (“the NHA”) is one of the legislative measures introduced to meet the constitutional obligations in relation to health services as set out in section 27 of the Constitution. A further example of a legislative measure adopted is the Medical Schemes Act, 1998. These represent the translation of socio- economic rights from broad constitutional ideals to substantive entitlements (Legislative and executive translation of the right to have access to health care services, Marius Pieterse, pg 3 hereafter referred to as “Pieterse”). The Medical Schemes Act has apparently achieved much greater success than the NHA in this regard.

16. The Preamble to the NHA, states as follows:

“BEARING IN MIND THAT-

* the State must, in compliance with section 7(2) of the Constitution, respect, protect, promote and fulfil the rights enshrined in the Bill of Rights, which is a cornerstone of democracy in South Africa;

* in terms of section 27(2) of the Constitution the State must take reasonable legislative and other measures within its available resources to achieve the progressive realisation of the right of the people of South Africa to have access to health care services, including reproductive health care;

* section 27(3) of the Constitution provides that no one may be refused emergency medical treatment;

* in terms of section 28(l)(c) of the Constitution every child has the right to basic health care services;

* in terms of section 24(a) of the Constitution everyone has the right to an environment that is not harmful to their health or well-being;”

17. As would be expected, the preamble restates the broad constitutional obligations in relation to health care identifying and recording those constitutional provisions applicable in relation to health care. The preamble does serve as an integral part of the statute and may be used in the interpretation thereof (Jaga v Donges 1950 (4) SA 653 (AD) at 664 H). This is significant when the preamble is read with the inadequate definitions and lack of regulations. To this extent, whether the NHA meets the requirements of being a reasonable legislative measure as required in terms of section 27(2) is debatable.

18. In Natal Joint Municipal Pension Fund v Endumeni Muncipality [2012] 2 All SA 262 SCA,  the Court found, at para 18 that “Over the last century there have been significant developments in the law relating to the interpretation of documents” the Court then outlined the proper approach to interpretation as follows” The present state of the law can be expressed as follows. Interpretation is the process of attributing meaning to words used in a document…having regard to the context provided by reading the particular provision or provisions in the light of the document as a whole and the circumstances attendant upon its coming into existence. Whatever the nature of the document, consideration must be given to the language used in the light of the ordinary rules of grammar and syntax; the context in which the provision appears; the apparent purpose to which it is directed and the material known to those responsible for its production. Where more than one meaning is possible each possibility must be weighed in the light of all these factors. The process is objective not subjective. A sensible meaning is preferred to one that leads to insensible or unbusinesslike results or undermines the apparent purpose of the document. Judges must be alert to, and guard against, the temptation to substitute what they regard as reasonable, sensible or businesslike for the words actually used. To do so in regard to a statute or statutory instrument is to cross the divide between interpretation and legislation”. In interpreting the right set out in section 28(1)(c), any court must follow this approach. Likewise in relation to identifying and developing the meaning of the best interests of the child contained in section 28(2) the court is bound to apply this approach. In doing so, it must conclude that section 28(1)(c) is not subject to resource constraints and thus is a right of immediate benefit. Any other conclusion would undermine the purpose of the section such that, in effect, it has no effective meaning almost becoming superfluous.

19. In terms of the objects of the NHA, set out in section 2, these include:

(c) protecting, respecting, promoting and fulfilling the rights of-

i) the people of South Africa to the progressive realisation of the constitutional right of access to health care services, including reproductive health care;

ii) the people of South Africa to an environment that is not harmful to their health or well being;

iii) children to basic nutrition and basic health care services contemplated in section 28( l)(c) of the Constitution; and

iv)   vulnerable groups such as women, children, older persons and persons with disabilities.

20. Again, the objects align with the broad constitutional obligations, noting the specific reference to the right of access to health care services and the specific reference to the rights of children. However, the lack of meaningful definitions, or relevant published regulations, is a shortcoming in interpreting these objects.

21. As to specifics, section 1 of the NHA contains the following attempt at a definition of health services:

“health services” means

(a) health care services, including reproductive health care and emergency medical treatment, contemplated in section 27 of the Constitution;

(b) basic nutrition and basic health care services contemplated in section 28(l)(c) of the Constitution;

(c) medical treatment contemplated in section 35(2)(e) of the Constitution; and

(d) municipal health services;

22. Again, these link to the object of the NHA and thus the constitutional requirements. Although this represents an attempt at definition, the truth is that the definition is imprecise and no definitive meaning can be extracted to understand what exactly health services include. The reference back to the Constitution does not assist. How effective this particular provision of the NHA is and whether this could be regarded as a reasonable legislative measure in its attempt at definition of “health services” is doubtful. Again, the lack of any regulation does not assist. Therefore, it is an open question whether this meets the requirements of section 27(2) as being a reasonable legislative measure.

23. Health care services in the NHA, as in section 27(1) of the Constitution, include reproductive health care, again without containing a definition. Despite the NHA not making direct reference to the right to have access to reproductive health care facilities, this would nevertheless be the case as the right is defined by direct reference to section 27 of the Constitution. Reproductive health has been defined as “…a condition in which the reproductive process is accomplished in a state of complete mental, physical and social well being and is not merely the absence of disease or disorders of the reproductive process…It further implies that reproduction is carried to a successful outcome through child and infant survival, growth and health development. It finally implies that women can go safely through pregnancy and childbirth…” (Carstens and Pearmain, pg 39). The focus is thus on the woman rather than the child although there is an inextricable link between the two. Absent an emergency arising in childbirth, the right to reproductive health care is however limited by the resource qualification set out in section 27(2) with the possible exception of the matters covered by section 12(2). What is clear is that the object of reproductive health care in relation to child birth is that the child survives birth and grows healthy. Therefore, it would appear that the mother has the right to have access to reproductive health care that would achieve this objective. The rights of the child are separate.

24. In relation to emergency treatment, section 5 of the NHA provides that “A health care provider, health worker or health establishment may not refuse a person emergency medical treatment”. This again is largely a restatement of the negative right contained in section 27(3) of the Constitution, adding nothing further and providing no guidance as to the meaning of an emergency.

25. It would appear that structurally at least the NHA, following the Constitution, deals with both the positive and negative aspects of the right to have access to health care. Section 3 of the NHA under the heading “Responsibility for Health” essentially deals with the positive entitlement, stressing that any entitlement is subject to the availability of resources. Section 5 deals with the negative aspects, absent any express resource qualification but certainly presupposing an emergency situation. The NHA does not deal with the specific rights of children otherwise that in terms of the objects of the NHA set out in section 2. In terms of section 90(1)(m) the Minister of Health may make regulations regarding “ emergency medical services and emergency medical treatment, both within and outside of health establishments”. No such regulations have been made. Resort may be had to the decision in Soobramoney to attribute a meaning to emergency medical treatment, discussed hereunder. The NHA also attempts a definition of “essential health services” which are to be defined by way of regulation. Again, no such regulation has been made. The result is that it is difficult to identify the specific content of the right.

26. Despite the above shortcomings, there would certainly appear to be a difference between a person being able to claim access to broad health care services and a person being entitled to the narrowly defined emergency medical treatment. On the face of it, emergency treatment is not resource limited and is a negative right and the entitlement is based on there being an emergency. In relation to a child, any entitlement will depend on the facts, specifically whether emergency treatment is required. However, the relationship between section 27(1) and 28(1)(c) outside of an emergency situation requires clarification.

27. It is therefore necessary to ascribe meaning to emergency medical treatment so as to demarcate the point at which, in a given situation, section 27(3) [section 5 of the NHA] becomes applicable rather than section 27(1). The fundamental reason is that while the positive rights set out in section 27(1) are qualified in terms of section 27(2) by resource qualifications, the negative right set out in section 27(3) is not so qualified and the threshold qualification is simply that a medical emergency exists.

28. In relation to a child, there is an apparent overlap between the rights set out in section 27(1) and those set out in section 28(1)(c). Specifically in terms of section 28(1)(c) which provides that a child has the right to basic health care services. In terms of the definition of health services in the NHA, this will include emergency medical treatment.

Patients Rights Charter

29. A policy document introduced by the Department of Health in 2000, thus predating the NHA, is the Patients Rights Charter. The charter describes the right of access to health care services. The charter commences with the following:

“For many decades the vast majority of the South African population has experienced either a denial or violation of fundamental human rights, including rights to health care services. To ensure the realisation of the right of access to health care services as guaranteed in the Constitution of the Republic of South Africa (Act No 108 of 1996), the Department of Health is committed to upholding, promoting and protecting this right and therefore proclaims this PATIENTS’ RIGHTS CHARTER as a common standard for achieving the realisation of this right.

This Charter is subject to the provisions of any law operating within the Republic of South Africa and to the financial means of the country”.

30. The qualification “financial means of the country” introduces the concept of progressive realisation subject to the overall budget allocations on a national level, rather than the extent to which the budget allocated to the Department of Health has been applied internally. On this basis, the overall budget allocations between State departments may be considered to establish whether relative allocations are reasonable. This is in any event the meaning that can be applied to the reference to available resources in section 27(2).

31. Specifically in relation to access to healthcare, the charter provides that:

Everyone has the right of access to health care services that include:

• receiving timely emergency care at any health care facility that is open regardless of one’s ability to pay;

1. (ii)…

• provision for special needs in the case of newborn infants, children, pregnant women, the aged, disabled persons, patients in pain, person living with HIV or AIDS patients;”(emphasis added)

32.This reinforces the entitlement to emergency treatment which is not qualified save that inability to pay is no basis to decline the treatment. In relation to children, this provision of the charter also links to the broad definition of reproductive health care.

Emergency Medical Treatment

33. The terms “emergency medical services” and “emergency medical treatment” differ. The former focusses on health care service infrastructure such as trauma units and the manner in which such units are equipped and ambulance services and who may operate them. The latter term is indicative of direct and immediate application of recognized medical techniques to a person requiring such treatment (Carstens and Pearmain, pg 329). However, to provide effective emergency medical treatment, emergency medical facilities will generally be required, the actual requirement depending on the nature of the emergency.

34. Health care services, including emergency medical treatment, must be considered in relation to the broader rights to life, the most fundamental human right. Absent the right to life, the right to health is essentially meaningless. The State has an obligation to protect life (Mohamed v President of the Republic of South Africa (Society for the Abolition of the Death Penalty in South Africa Intervening) 2001(3) SA 893 CC at 917. In Soobramoney, the court observed that dying is part of life and that there is no meaningful way it can be constitutionally extended to include the right to indefinitely evade death.( at para 57). This is stated despite the overarching obligation on the state in terms of section 7(2) of the Constitution to “…respect, protect, promote and fulfil the rights in the Bill of Rights”. Protection implies a negative obligation in that no one may take the right away.

35. In Minister of Home Affairs and Others v Tsebe and Others, Minister of Justice and Constitutional Development and Another v Tsebe and Others (CCT 110/11, CCT 126/11) [2012] ZACC 16, 27 July 2012, the Court found at para 28 that “Section 7(1) of the Constitution provides that our Bill of Rights, …, is a cornerstone of our democracy. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom”. And at para 50, the court found that “Section 7(2) is not qualified in any way. Accordingly, the obligations it places on the State apply to everything that the State does”. Referring to Mohamed the court added that “… there are no exceptions to the right to life, the right to human dignity and the right not to be subjected to treatment or punishment that is cruel, inhuman or degrading. These are the rights that the State must respect, protect, promote and fulfill …”. In the context of a child requiring emergency medical treatment, to the extent that such treatment is not provided when required, then the result constitutes an infringement of the right to life if the child dies.

36. However, not all health care services in fact protect life. Some promote and fulfil it. Emergency medical treatment, expressed as a negative right, serves to protect life (Carstens and Pearmain, pg 28). It is on this basis that emergency medical treatment cannot be refused when protection is involved. Protection, rather than promotion, may therefore be viewed as being a form of minimum standard of recognition of the right to emergency medical treatment. Promotion and fulfillment perhaps relate to positive rights requiring progressive realisation. For this reason, some of them are subject to the qualification of progressive achievement subject to the availability of resources in the respects expressly set out in the Bill of Rights.

37. A further right closely connected to health is that of dignity, another founding provision of the Constitution. Health is essential for life and human dignity, dignity being both a value and a right (S v Makwanyane 1995 (3) SA 391 CC at 451). The right to health is therefore not a discrete right but rather one that is interrelated with various other rights set out in the Bill of Rights. All rights in the Bill of Rights are thus interconnected (Grootboom at para 83).

38. A fundamental question is whether the provisions of section 27(2), dealing with resource constraints, apply to emergency medical treatment in terms of section 27(3). This largely depends on the interpretation of the construction of section 27, in short, the sequence in which the provisions of section 27 are recorded. Section 27(2) qualifies the right to have access to, inter alia, health care services as set out in section 27(1)(c) . Additionally, section 27(1) deals with positive rights while section 27(3) deals with a negative right. Section 27(3) has no direct qualification and contains no express reference to any “right”; it deals with emergency medical treatment thus creating a separate right to such treatment. Despite the terminology of section 27(3), this clearly evidences a specific right, different from the rights set out in section 27(1). This being the case, the argument can be made that section 27(3) is not subject to the provisions of section 27(2). Therefore, resource constraints are not relevant in relation to emergency medical treatment.

39. However, section 27(3) must, realistically in any event, remain subject to the availability of the required emergency facilities. That is, if the emergency facilities are not available, then clearly emergency medical treatment cannot be provided in the event of an emergency. That emergency facilities are not available is a broader issue which relates directly to a policy decision on the overall allocation of state resources: to what extent have resources been allocated to emergency facilities rather than non-emergency facilities? This is a matter of policy selection, resource allocation and essentially one of preferences. Provided that this selection and allocation is rational, reasonable and justifiable then any challenge would most likely be unsuccessful. As the Bill of Rights has been in place since 1996 and the right to emergency medical treatment is not qualified in the manner in which those rights conferred by section 27(1) are qualified, the argument that there are no emergency facilities in which to give emergency medical treatment becomes ever weaker with the passage of time. State expenditure must be incurred with a view to fulfilling the duty to respect, protect, promote and fulfill the rights in the Bill of Rights. This necessitates that in relation to certain constitutional obligations budget allocations be prioritized. This would include emergency medical treatment for children. Aggrandizing expenditure, serving no constitutional purpose whatsoever, simply results in resources being diverted from realizing direct constitutional imperatives. While not necessarily capable of direct challenge, that the State can spend in such a manner certainly indicates that any resource constraint argument as the reason for failure to give meaning to the rights set out in the Bill of Rights requires thorough investigation.

40. Section 28(1)(c) refers to every child having the right to “...basic health care services…”. The term “basic” requires interpretation as it is not defined in the National Health Act, 2003, or in the regulations. It may be interpreted as being the very minimum, the simplest and the cheapest. Some have opined that reference to “basic” in section 28(1)(c) implies a minimum core level necessary to prevent malnutrition or disease and that the focus is on preventative rather than curative health services (Fundamental Rights in the Constitution, Commentary and Cases (1994), Davis D, Cheadle H and Haysom N at 269) However, this is unlikely in so far as the right of children to the highest standard of health and medical care is set out in Article 24 of the United Nations Convention on the Rights of the Child. Accordingly, reference to basic may reasonably be interpreted as reference to essential health care. That is, children must receive those health care services that are essential to promote their health and well-being, to protect them from common threats to their health and to restore them to health when those threats produce injury or disease (Basic Health Care services for Children, Westwood, A and King M, South African Child Gauge 2009 /2010, pg 58). Nowhere in section 28 of the Constitution is there any indication that this right is qualified in relation to progressive achievement of this right or that this right is conditional upon available resources. In international terms, health care services would include proper medical care, prevention and diagnosis of diseases and vaccination. Article 10 of the ILO convention 102 of 1952 lists the following under medical care: general care, specialist care, hospitalization where necessary, essential pharmaceutical supplies and in the case or pregnancy, pre-natal, confinement and post-natal care. Basic minimum standards of health care would include the provision of accessible and affordable primary health care for all and that health policies should be comprehensive and equitable.

41. Soobramoney, a 1998 case, dealt with a claim to the right to emergency medical treatment in relation to an adult. The Court found, in casu, that the medical condition suffered by the appellant did not constitute an emergency with the result that the appellant was not entitled to the benefit of the right set out in section 27(3). The court additionally found, at para 20, that the right set out in section 27(3) is in any event premised on the availability of emergency resources and facilities. That is, absent the required resources, there is no obligation to provide emergency medical treatment. This however is not the same as the essence of section 27(2) in relation to the constitutional requirement that health care must be provided “…within its available resources…”. The difference is that if emergency facilities are available, then they must be utilized for any emergency patient but there is not necessarily an immediate obligation to make such treatment available if the available State resources are insufficient.

42. Section 27(3) is therefore a right not to be arbitrarily excluded from that which already exists. The section contemplates emergency treatment when it is necessary and the resources are available. As such, the essence of the right is not to be denied emergency medical treatment due to bureaucratic requirements or other formalities. In short, section 27(3) requires that emergency treatment that is necessary and available be provided immediately (Soobramoney at para 20).

43. Directly related is what may be regarded as a medical emergency. In South Africa, it appears that the test is objective rather than subjective for the purposes of determining whether a health facility has violated a person’s constitutional right by turning him away when emergency treatment is sought (Carstens and Pearmain, pg 160).Even if an emergency has been determined to exist, the person will however not be entitled to emergency treatment if the medical facility is full to capacity or it does not have the resources to render the required service, these being acceptable reasons for denying access according to the Court in Soobramoney.

Definition of an Emergency

44. An emergency is a difficult concept to define as much as it is a situation which is difficult to foresee or anticipate. Frequently, adjectives such as sudden and unexpected are used in describing an emergency (Samson v Winn 1977 (1) SA 761 (C) and Epol (Pty) Ltd v Bezuidenhout 1980 (3) SA 624 (T) both of which cases referred to a “sudden and unexpected emergency”).

45. The regulations to the Medical Schemes Act, 1998, define an emergency as “… The sudden and, at the time, unexpected onset of a health condition that requires immediate medical or surgical treatment, where failure to provide medical or surgical treatment would result in serious impairment to bodily functions or serious dysfunction of a bodily organ or part, or would place the person’s life in serious jeopardy“. In Soobramoney the court ultimately regarded a medical emergency as a “…dramatic sudden situation or event which is of a passing nature in terms of time. There is some suddenness and at times even an element of unexpectedness in the concept of “’emergency medical treatment’” (at para 38). The courts ‘definition’ was arrived at without reference to any peer-reviewed medical sources.

46.The Constitution, the National Health Act, the Health Professions Act, the Nursing Act, the Department of Health’s Ethical Rules of Conduct and the Department of Health’s Patients’ Rights Charter all fail to define the practical scope of emergency medical treatment. As a result, emergency medical patients are redirected away from health care establishments without receiving basic emergency medical treatment under the guise of the Department of Health’s regulations which introduce a hierarchy of health services. This hierarchy was apparently introduced in order to increase efficiency in the use of scare health resources. In essence, for a patient to move up the hierarchy to a more sophisticated level of health services, there must be an initial medical assessment and followed by an upward referral. There is no separate provision dealing with a patient medical emergency.

47. The following definition of emergency treatment has been has suggested by Dr Efraim Kramer; “… the provision of, as a minimum, basic emergency medical care, by professional health care providers, to any individual/s presenting to the emergency department of a registered health care establishment or provided to any individual/s on the scene of a medical emergency by health care providers, of a medical condition which may actually or potentially threaten the life, limb or organ function of the person, such that the following assistance shall be attempted, in all patients, where medically required, in a safe, caring, compassionate, competent and communicative manner:

• attempted provision and protection of a patient airway;
• attempted provision of effective ventilation medically, manually or mechanically;
• attempted control of external bleeding;
• attempted relief of intolerable, unacceptable paid;
• urgent attention and appropriate medical intervention in medical conditions in which time is critical to prevent deterioration, these may include, but not limited to, acute hypoglycaemia, stroke, acute coronary conditions, acute labour or sepsis”. ( Dr Efraim Kramer ‘No one may be refused emergency medical treatment’ – the ethical dilemmas in South African emergency medicine, SAJBL December 2008, Vol 1, No.2, page 55)

48. The above suggested definition, with an obvious medical focus, is broad but clearly links the existence of an emergency to a threat to life. As such, any person showing any of the symptoms set out in the definition should be entitled to immediate emergency medical treatment. This definition represents a practical attempt to give meaning to the constitutional right to emergency medical treatment.

49. Whether or not an emergency exists depends on a unique factual matrix and an all-encompassing definition is neither possible nor appropriate. It is fact specific. To illustrate, consider the situation of a person stung by a bee. Whether this would be regarded as an emergency depends on whether the person is seriously allergic to bee stings. If the person is allergic, the condition is life threatening and thus may be regarded as an emergency. If the person is not allergic, then no emergency situation would arise as there would be no life threatening situation. An attempt to define an emergency in this regard will be fraught with difficulty. But what can be identified is at least one of the essential elements of an emergency, that is, the medical condition must be life threatening. This must then be considered in relation to whether or not the condition is sudden or unexpected. The last mentioned entails that the occurrence was sudden and unexpected, the patient had no opportunity of making arrangements in advance for the treatment that was required and there was urgency in securing the treatment in order to stabilise the condition (Paschim Banga Khet Mazdoor Samity v State of West Bengal (1996) AIR SC 2426, as referred to in Soobramoney at para 18). In the Paschim case, a significant fact was that the required emergency treatment was available but denied by various State hospitals due to either a lack of the necessary facilities or not having room to accommodate him. The patient finally secured treatment at a private medical facility at his own expense. In Soobramoney, the condition was neither sudden nor unexpected and thus there was no emergency.

50. At least one of the reasons for the inclusion of section 27(3) in the Constitution must relate to the past practice of patients being turned away that could not afford the treatment. This is clearly no longer permissible. Even if the patient cannot afford the emergency treatment, it must be provided, although the costs may recovered thereafter. This applies to both public and private health care facilities in relation to emergency medical treatment. Neither may any other arbitrary ground be raised for denying a person emergency medical treatment. That does not necessarily mean that a person suffering an emergency will be seen immediately. Triage in an emergency department, where the level of medical emergency is categorized, ensures that the most critical patients are seen first, at the expense of the less critical patients. This is an accepted international practice and does not detract from the right to emergency medical treatment. What it does confirm is that it would be unreasonable to assume that emergency facilities and treatment are an unlimited resource available on demand at all times. What is not acceptable to triage emergency patients is to redirect them without initial stabilization (Kramer, pg54).Triage is therefore a form of prioritizing, premised on emergency treatment being required and facilities being available.

Adequate Medical Treatment

51. The Constitution provides for a further category of medical treatment. Section 35(e) by contrast to emergency medical treatment in section 27(3) and basic health care services in section 28(1)(c) refers to “adequate medical treatment” in relation to a detained person. This has been interpreted to mean “… what the State can afford to provide…”; despite section 35 (2)(e) not having an express internal resource qualification, the resource requirement was nevertheless read into the scope of the right (Van Biljon v Minister of Correctional Services 1997 (4) SA 441 (C), at para 490). This case dealt with an application for a declaratory order in relation to the rights of the prisoners to adequate medical treatment and expensive anti-viral medication. Given the medical condition, this was the most effective treatment available. The Minister argued that the States only obligation was to provide the same standard of care as provided in State hospitals where the use of the drug was limited and further that the applicants would not have qualified for the drugs at a State hospital in terms of a policy in force. In granting the order, the Court, found that ” Once it is established that anything less than a particular form of medical treatment would not be adequate, the prisoner has a constitutional right to that form of medical treatment and it would be no defense for the prison authorities that they cannot afford to provide the medical treatment“. The court however did not accept that financial conditions or budgetary constraints were irrelevant concluding that adequate must be read in relation to what the State can afford. Therefore, if only less effective medical treatment is affordable to the State then this may be regarded as being sufficient or adequate. In casu, and significantly, the State had not made out a case that budgetary constraints prevented it from providing the required anti-viral treatment for the prisoners.

52. The significance of the above case is the fact that the court read-in a requirement of progressive realization and the availability or resources as qualifying the right. Further, in relation to adequacy, the court found that this is linked directly to budgetary constraints, the implication being that while optimal treatment may not be affordable, whatever is affordable must be provided. That is, the right must be fulfilled, the extent being linked to resources thus budgets.

53. Section 28(1)(c) likewise contains no internal resource limitation. It may be argued that a court may read in the requirement of progressive realization and the availability of resources in relation to the scope of a child’s rights to basic health care services in terms of non-emergency treatment. However, interpreting basic health care services more accurately as being essential health care services, such an argument would probably be unsustainable in relation to a child. This issue is considered more fully below. However, in terms of Section 27(3), being a negative right, the same conclusion cannot necessarily be reached.

The Rights of Children to Basic Health Care Services.

54. In terms of section 28(1)(c) every child has the right to basic health care services. It is generally accepted that this is additional to the protections that are given by the remainder of the Bill of Rights, specifically section 27. Section 28 therefore supplements the more general socio-economic rights set out in sections 26 and 27. Subject to a limited number of exceptions, such as the right to vote, a child has the same protection in the Bill of rights as his adult counterpart. This is not however to detract from parental authority.

55. If sections 27 and 28(1)(c) are considered, can it be concluded that children have a greater or more specific right to health care than adults? That is, do children have two rights to health services, one in terms of section 27(1) and another in terms of section 28(1)(c)? The only identifiable difference is the reference in section 28(1)(c) to “basic” health care services which is absent from section 27(1). Significantly, section 28(1)(c) contains no express qualifier, as in section 27(2), requiring progressive realisation within available resources. The “access to” wording in section 27, not applicable in relation to section 28(1)(c), has already been discussed above. The fact that the rights in section 28(1)(c) are not limited to rights of access indicates a child’s direct right to basic health care services.

56. Section 28(1)(c) accords children basic rights to nutrition, shelter, health care and social services. The State therefore has an obligation to ensure that every child is provided with these basic requirements and to provide the family of a child with support and to provide family care. In Grootboom, the court found that section 28(1)(c) does not create an obligation on the State to provide shelter on demand to children and, through them, their parents (at para79). Further, the court found that section 28(1)(c) did not create rights that are separate and independent rights for children and their parents (at para 74). In TAC, the court held that the State does incur obligations when the implementation of family or parental care is lacking due to extreme poverty and where failure to meet the needs of children would threaten their enjoyment of all their fundamental rights (at paras 78-79).

57.  In Grootboom, one of the issues, quite apart from the “piggy-backing” point discussed above, was the relationship between section 26(2) and section 28(1)(c) of the Constitution. The court found that there was an overlap and that section 28(1)(c) does not create a directly enforceable claim upon the State in respect of children. The court found that section 28(1)(c) did not create rights that are separate and independent rights for children and parents. In the matrix under consideration, the facts do not involve any consideration of the rights of any parent. Rather, the focus is exclusively on the rights of the child to emergency medical treatment. While the psychological integrity of parents could be adversely affected due to the non-delivery of emergency medical treatment of their children, the right to psychological integrity is a separate and unqualified right under section 12(2) which is separately claimable by any affected parent. No “piggy-backing” would be involved.

58. In TAC, the court adopted the view that it is better to live now and die later than not live at all and even if only a few hundred lives were saved initially, the potential loss of life of thousands in the long term due to drug resistance was no argument for the State’s failure to provide the drug.

59. The minimum core obligation has however been rejected in both Grootboom and the TAC cases. In Grootboom the court found that the rights in section 26 and 28(1)(c) must be considered in the context of a cluster of socio-economic rights. In essence, the right of children in terms of section 28(1)(c) is not a separate and independent right from their parents to access health care services in terms of section 27(1) but rather a subset of a broader right.

60. As to the nature of the right set out in section 28(1)(c), this can potentially be determined by considering the right set out in section 29(1)(a) in terms of which, “Everyone has the right to a basic education…”. The manner in which this right is expressed is identical that that in section28)(1)(c), save for its subject matter. In Governing Body of the Juma Musjid Primary School and Others v Essay NO and Others (Centre for Child Law and Another as amici curiae) (CCT 29/10) [2011] ZACC 13: 2011 (8)BCLR 761 (CC), the court, in dealing with section 29(1)(a) held, at para 37, that “Unlike some of the socio-economic rights, this right is immediately realisable . There is no internal limitation requiring that the right be ‘progressively realised’ within ‘available resources’ subject to ‘reasonable legislative measures’”.” The court further found that the right to basic education may only be limited in terms of a law of general application which is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom as set out in section 36(1) of the Constitution. The court noted that the rights set out in section 26 and 27 are subject to an internal limitation that the State must take reasonable legislative measures within its available resources, to achieve progressive realization of the particular rights. No such internal limitation applies to section 29(1)(a), or to section 28(1)(c). The court further found, at para 58, that socio-economic rights, such as the right to basic education, may be negatively protected from improper invasion. In Centre for Child Law and Others v Minister of Basic Education and Others (1749/2012) [2012[ ZAECGHC 60, at para 1, again a matter dealing with section 29(1)(a), the court held that the right to basic education is enshrined, without qualification [ emphasis supplied]. This accords with the generous approach adopted when interpreting provisions of the Bill of Rights (S v Mhlungu 1995 (3) SA 867 (CC)).

61. Accordingly, on the basis of the above quoted authorities, it may be concluded that the rights set out in section 28(1)(c) are in fact unqualified and immediate access to health care services for children is constitutionally required with immediate effect and ought after so many years of the existence of the Bill of Rights to be in place.

Best Interests of the Child

62. This is expressly provided for in section 28(2). The best interests test directs the court to exercise the discretion it possesses in its capacity as upper guardian of minors to promote the interests of the child rather than focusing on the rights of other such as parents (Fletcher v Fletcher 1948 (1) SA 130 (A)). Section 28(2) represents the constitutional entrenchment of this test. The Constitutional Court, in a matter relating to maintenance, has held that the best interest requirement entailed an obligation, in the first instance, on the parents to properly care for children (Bannatyne v Bannatyne 2003 (2) SA 363 (CC)).

63. In S v M (Centre for Child Law as Amicus Curiae) 2008 (3) SA 232 (CC), the court, at para. 12, stated that “In our new constitutional order, …, the scope of the best interests principle has been greatly enlarged”. At para 14, the court stated that “While section 28 undoubtedly serves as a general guideline to the courts, its normative force does not stop there” and that “… the question is not whether section 28 creates enforceable legal rules, which it clearly does, but what reasonable limits can be imposed on their application”. At para 15, the court found that “…statutes must be interpreted and the common law must be developed in a manner which favours protecting and advancing the interests of children; and that the courts must function in a manner which at all times shows due respect for children’s rights”.

64. In C and Others v Department of Health and Social Development, Gauteng, and Others 2012 (2) SA 208 (CC), the court, at para. 26 found that section 28 creates distinct rights that are not subject to a single internal qualification.

65. It is submitted that the above must be considered in conjunction with the Children’s Act, 2005, an enactment giving force to the rights set out in section 28 of the Constitution. Section 8(1) of the Children’s Act provides that “The rights which a child has in terms of this Act supplement the rights which a child has in terms of the Bill of Rights“. Section 9 further provides that in all matters concerning the care, protection and well-being of a child the standard that the child’s best interest is of paramount importance must be applied. Section 7 sets out the factors that must be taken into consideration when considering the best interests of the child. This includes, in section 7(1)(j) “…any chronic illness from which the child may suffer“. Aside from this there is no reference to the medical condition of the child. Certainly, there is no reference to any emergency medical condition.

66. This requires consideration as to the meaning of the reference to the “best interests of the child”. In Minister for Welfare and Population Development v Fitzpatrick 2000 (7) BCLR 713 CC at 17, in dealing with section 28(1) of the Constitution, Goldtstone J said that “The plain meaning of the words clearly indicates that the reach of section 28(2) cannot be limited to the rights enumerated in section 28(1) and section 28(2) must be interpreted to extend beyond those provisions. It creates a right that is independent of those specified in section 28(1)”. This case dealt with the Child Care Act, 1983, and preceded the introduction of the Children’s Act. Accordingly, the best interests’ principle extends beyond section 28(1) and would thus apply equally to section 27. Significantly, Goldstone J refers to a right, not a guiding principle.

67. In relation to the “paramountcy principle” expressed in section 28(2), in S v M (Centre for Child Law as Amicus Curiae) 2008 (3) SA 232 (CC), the court found, at para 25, that the word paramount is emphatic. At para 42, the court found that “The paramountcy principle, read with the right to family care, requires that the interests of the child who stand to be affected receive due consideration. It does not necessitate overriding all other considerations. Rather, it calls for appropriate weight to be given in each case to a consideration to which the law attaches the highest value, namely, the interests of the children who may be concerned”. At para 26 the court found that the fact that the best interests of the child are paramount does not mean they are absolute and that like all rights in the Bill of Rights their operation has to take into account their relationship to other rights, which may require their ambit to be limited. What is significant is that in interpreting the scope of section 28(1)(c), the court will be required to consider the effect of denying the right to immediate basic health care services to a child, which cannot under any circumstances meet the paramountcy principle. Any contrary finding flies in the face of the constitutional imperative that the best interests of the child are paramount. More so in an emergency situation.

68. In Director of Public Prosecutions, Transvaal v Minister for Justice and Constitutional Development and Others 2009 (4) SA 222 (CC) at para 73, the court held that the provision set out in section 28(2) “…imposes obligations on all those who make decisions concerning a child to ensure that the best interests of the child enjoy paramount importance in their decisions”. This was reaffirmed in Governing Body of the Juma Musjid at para 67.

69. It must be beyond any doubt that a child requiring admission to ICU, on medical advice, should be so admitted in the best interests of that child. It is axiomatic that when a child requires emergency medical treatment then this is paramount. To conclude otherwise is to deny that child, inter alia, the right to life. That is the quintessential nature of intensive care.

Progressive Realisation and Resources Limitations – Sections 26 and 27

70. The positive element of the right to have access to health care is not unqualified when the provisions of section 27(2) are considered, as with the structure of the relationship between sections 26(1) and 26(2). Section 27(2) provides for progressive realisation of the right set out in section 27(1) within available resources. That is, the State is not required to do more than is achievable within its available resources.

71. Therefore, regardless of how wide the definition of health care services may be in relation to section 27(1)(a), and ignoring emergency medical treatment in terms of section 27(3) and the rights of a child in terms of section 28(1)(c), the provision of health care services will nevertheless be limited by the constraint of available State resources. This however requires that any claim by the State as to the inadequacy of resources be fully interrogated in the broadest sense, not least so as to determine the reasonableness of any allocation of State resources. Reference to resources itself is not necessarily free from doubt and may refer to overall State resources or to discrete departmental budget allocations. Article 2 of the ICESCR refers to the “maximum of its [the State party’s] ” available resources. That is, the overall resources of the State and not the budget allocated to a particular department, as provided for in the Patients Rights Charter. South Africa has signed the ICESCR in 1994 but has yet to ratify it, despite repeated assurances that it will do so. South Africa has also not yet signed the Optional Protocol. Article 4 of the United Nations Convention on the Rights of the Child, dealing with economic, social and cultural rights obliges states to undertake measures”… to the maximum extent of their available resources”. Article 24(1) refers to “the highest attainable standard of health”. This would also appear to be confirmed in the Patients Rights Charter referred to above.

72. In evaluating the reasonableness of State action to achieve the rights set out in section 27(1), the court may thus consider the departmental plans, policies and budget provisions as well as the internal departmental allocation. At the first level, the question is whether the overall allocations to different departments are reasonable. That is, is the allocation to the Office of the President rational and reasonable in relation to the allocation to health or education. Within each department, the inquiry is then whether the allocation is focused on ensuring the realization of rights set out in the Bill of Rights that relate to that particular department. This would for example include a consideration of whether the amount allocated to emergency treatment or children is reasonable in relation say to an allocation to frail care. Of course, in relation to health, other departments will be involved such as education and public works and the overall position must be considered to establish whether, on an integrated basis, the constitutional objectives are realizable.

73. While internationally there is a principle of minimum core obligations, this has been rejected by the Constitutional Court in both the Grootboom and TAC cases. As to whether the courts have the power to enquire into the national government allocations to provincial level in areas critical to the realisation of rights, the court noted that: “The Constitution contemplates rather a restrained and focused role for the Courts, namely, to require the State to take measures to meet it’s constitutional obligations and to subject the reasonableness of these measures to evaluation. Such determinations of reasonableness may in fact have budgetary implications, but they are not in themselves directed at rearranging budgets. In this way, the judicial, legislative and executive functions achieve appropriate constitutional balance” (TAC at para 38). In Soobramoney, the court concluded that in relation to budget allocations, “… choices involve difficult decisions to be taken at the political level in fixing the health budget, and at the functional level in deciding upon the priorities to be met. A court will be slow to interfere with rational decisions taken in good faith by the political organs and medicine authorities whose responsibility it is to deal with such matters”. Reference to a functional level is reference to the allocation within the department concerned across the entire spectrum of the obligations falling on that particular department. Clearly priority must be given to rights immediately claimable over rights that are subject to progressive realization. This distinction seems to be honoured in the breach in the public administration in that the paramount nature of the rights of children is not given its proper place in budgetary and staff allocations.

74. Section 27(2) requires reasonable legislative and other measures be taken to achieve progressive realisation of the rights. In Grootboom, the court found that the content of the obligation in relation to the rate at which it is achieved as well as the reasonableness of the measures employed to achieve the result are governed by the availability of resources. There is thus a balance between goals and means. The measures must be calculated to attain the goal expeditiously and effectively but ultimately the availability of resources is an important factor in determining what is reasonable (at para 46).

75. It would appear that South Africa follows a top-down approach in terms of which certain of the socio-economic rights set out in the Constitution are to be construed widely, but then limited by available resources. Thus, it is the available resources which keep the rights within reasonable and practical bounds.

76. The reality is simply that medical treatment under any circumstances is subject to the availability of medical facilities. Section 27(3) does not create a direct right to emergency medical treatment but rather provides that a person is entitled to emergency medical treatment only to the extent that emergency treatment is necessary and facilities are available. That is, the initial question is whether the person concerned is suffering from a medical emergency and if so, whether the appropriate emergency facilities are in fact available. Essentially, is there capacity to deal with an emergency. Therefore, the assumption is that emergency facilities are available before a claim can be laid to the services. If not, then clearly the claimant cannot insist on the emergency services.

77. Establishing emergency facilities is essentially a financial, thus budgetary, issue. And this then links back to section 27(2) of the Constitution in an indirect sense: there is an obligation not to refuse emergency medical treatment which is not qualified by section 27(2), but that section informs the provision of access to health care services. Despite the wording of section 27(3) of the Constitution, it would appear that there is no unqualified right to emergency medical treatment. Rather, the right ultimately remains resource dependent, but to a lesser extent than set out in section 27(1). Section 7(2) imposes a duty to respect and protect the entitlement not to be refused emergency medical treatment. This duty is not discharged properly if the state chooses to acquire a lot of “nice to have” goods and services without making reasonable provision for the availability of emergency medical treatment.

78. This therefore raises the fundamental question of whether the State has made adequate facilities and services available for emergency medical treatment in terms of budget allocations. In the 2010/11 financial year the under spending by the Department of Health was in excess of R 700 million. In short, the budget allocation of the department is substantial. However, the reasons behind this under spending must be considered in relation to the requirements of access. The provision of health care services is not limited to physical medical facilities alone and relates equally to the training and appointment of appropriately qualified personnel. The allocation of State resources is a matter for the legislature and the executive. However, to the extent that budget allocations result in the failure to achieve constitutional obligations, then a challenge can be mounted in so far as the constitutional obligations and requirements are not being achieved or are not capable of being achieved. State spending in areas that result in no constitutional benefit must be interrogated so as to determine its ultimate benefit. Misallocation of budgets in a manner that is inconsistent with the values of the Constitution is invalid and can be struck down by the courts when challenged successfully using section 2 of the Constitution as the basis for attacking over-expenditure on non-essentials and under-provision for that which is essential and achievable by way of performance under section 7(2). Any other interpretation results in lip-service to the Bill of Rights and non-delivery or short delivery of the rights guaranteed to all with impunity, not an outcome contemplated by the founders of the Constitution.

Access and Rationing

79. As previously stated in relation to section 27(1), there is no direct right to health care services but rather a right to have “access to health care services”. This is not as direct a right as the right to health services per se. A right to access implies that the holder of the right must also make some sort of effort in order to obtain the services. Access entails that the health services must be placed within the reach of the public; it must be affordable, available and effective. Included in the concept of access are State activities in the maintenance and upgrading of public hospitals, and ambulance systems, referral systems between municipal, provincial and national health facilities, licensing of public and private health establishments, programs for the education and retention of sufficient numbers of health professionals necessary to provide health care services and the creation of a non-discriminatory environment in the health sector (Carstens and Pearmain, pg 41)

80. It is evident that the right of access does not place obligations exclusively on the Department of Health; indeed, other government departments may be implicated. As mentioned above, this could for example include the departments of public works, education and trade and industry.

81. Rationing and access are directly related. Rationing relates to the availability of resources and specifically the nature and extent of health services to which people may be entitled. Also relevant is prioritising, this taking place within the available resources. Rationing can improve access in certain areas, but, given overall limited resources, may result in reduced access in other areas. The result is that access may not meet constitutional obligations in certain areas and this may be viewed as a limitation of the right, which would require compliance with section 36 of the Constitution. In so far as rationing is implicit when resources are constrained, the content of the right is limited by the available resources. This relates to the scope of the right rather than a justifiable limitation of the right as no right is absolute or unbounded (Soobramoney at para 11 and Grootboom at para 46). The restricted scope of a right differs from a justifiable limitation.

82. Since most socio-economic rights deal with positive obligations on the State, violations are likely to take the form of an omission on the part of the State either in policy formulation and implementation or resource allocation. In Grootboom and TAC, there was no law of generally application impacting upon the relevant rights of the applicants, the former dealing with an absence of legislative of other measures and the latter the failure to develop a comprehensive programme. In Soobramoney, the question of limitation was not relevant on the factual findings. If the limitation clause was to be applied to positive socio-economic rights, this would practically be self-defeating as the courts would need to consider reasonableness in relation to the limitation clause having already found a lack of reasonableness in relation to the specific right (Khosa and Others v Minister of Social Development: Mahaule and Another v Minister of Social Development and Others 2004 (6) BCLR at para 105).

83. Accordingly, it is unlikely that any claim would be sustainable on the basis that the NHA represents an unjustifiable limitation on the rights set out in section 27 or 28 of the Constitution, despite the broad definitions adopted in the NHA..

Justiciability of Positive and Negative Socio-Economic Rights

84. In the First Certification Case, the Constitutional Court concluded that the inclusion of socio-economic rights in the Constitution does not result in a breach of the constitutional principles. This despite the fact that orders made by the courts may have direct budgetary implications. Accordingly, socio-economic rights are justiciable to at least some extent. The court found that at the very minimum, socio-economic rights can be negatively protected from improper violation (Ex parte Chairperson of the Constitutional Assembly: in re Certification of the Constitution of the Republic of South Africa 1996 (First Certification judgment) 1996 (4) SA 744 (CC) paras 77-78).

85. Generally, socio-economic rights oblige the State to do whatever it can to secure the benefit of social objectives, subject to the availability of resources. To this extent, they are positive rights and in the application of these rights, courts are permitted, in fact required, to consider the manner in which the State applies and distributes its resources to achieve policy objectives. The State may therefore be called upon to account for the manner in which it seeks to achieve these rights within the parameters of the resources it has allocated. Some view this as being beyond the remit of the court, concluding thus that socio-economic rights are not justiciable. However, socio-economic rights are expressly dealt with in the Bill of Rights and there is no indication in the Constitution itself that these rights are not justiciable. In Grootboom, at para 20, the court stated that socio-economic rights cannot exist on paper alone: they must be enforced by the courts. This requires that they are justiciable.

86. Socio-economic rights may be negatively enforced. This would be the case where the State takes measures that deliberately and retrogressively deprive a person of the possibility of realising the socio- economic rights as set out in the Constitution. An example would be the denial of water supply, food or housing (Grootboom at para 20).

87. In relation to the positive content of any socio-economic right, the State is required to adopt, and implement, reasonable measures, (laws, policies and programmes implemented by the executive), to fulfill the realisation of the socio-economic rights set out in the Constitution. That is, it is incumbent on the State to be proactive and take reasonable steps and implement reasonable measures such that individuals may realise and benefit from these rights on a progressive basis. These rights are not simply theoretical and practical steps are required to ensure realisation. While the State has a measure of latitude and discretion in the methods selected to realise these rights, the court may consider the reasonableness of the measures actually taken to achieve realisation of these rights (Grootboom at 41). When considering the reasonableness of any measures taken by the State, the courts may require an explanation from the State on the specific measures taken and require an account of progress on implementing the chosen measures. What this means is that the State can be called on to justify the means it has chosen to realise the socio-economic rights.

88. Policy formulation and administration are the primary roles for the legislature and executive. Election carries with it the inherent mandate to raise resources as necessary to implement policies, notionally at least, preferred by the electorate. The judiciary is an un-elected body, its primary role being to enforce, but not revise, the law with due regard to the principles of rationality and proportionality. In the final analysis, the government, not the judiciary, retains the power over the purse (David Beatty in Human Rights and Judicial Review: A Comparative Perspective). This is in accordance with the separation of powers.

89. At least one of the arguments against judicial intervention in adjudication on socio-economic rights relates to the concept of polycentricity. In Rail Commuters Action Group v Transnet t/a Metrorail Commuter and others 2003 (5) SA 593 (C), the court held, at page 86 that: “The problems of polycentricity must clearly act as important constraints upon the adjudication process, particularly when the dispute has distributional consequences. But polycentricity cannot be elevated to a jurisprudential mantra, the articulation of which serves. Without further analysis, to render courts impotent to enforce legal duties which have unpredictable consequences”. The court held that legal duties imposed on the State should be adjudicated in terms of reasonableness and that if the State fails the test of reasonableness in relation to any of its plans or policies, or the implementation thereof, then an appropriate remedy must be fashioned. Ultimately, the question is how far the courts will go in setting out the steps that government is required to implement to remedy an infringement of a right in the Bill of Rights. All the more so as this may have significant financial implications. The argument against such judicial action is that, from a State perspective, matters of policy formulation and implementation fall under the prerogative of the executive given that these decisions have broad social and economic consequences, generally in relation to collective rather than individual claims. In part the argument is that the executive has more information and expertise at its disposal to make policy choices and is thus best placed to do so. However, constitutional remedies relating to the infringement of a right in the Bill of Rights must be effective failing which the rights are essentially hollow if not meaningless. The Courts are required to give effect to the Constitution and the law, without fear, favour or prejudice according to section 165(3). On this basis, the courts are unavoidably required to inquire broadly into resource allocations and may be required to place obligations on the State in certain instances of rights infringement. In doing so, they apply the law which is something wholly different from violating the separation of powers. The courts cannot be overly deferential to assertions that resources are limited, the onus being on the State to establish that this is in fact the case. In any event, in designing appropriate just and equitable relief, the issue of polycentricity will inevitably be considered. In the final analysis, the efficacy of the rights set out in the Bill of Rights depends on the judiciary inquiring into alleged breaches as it is mandated to do.

90. Despite the fact that positive socio-economic rights are not necessarily as amenable to court supervision to the same extent as civil and political rights, the courts must constantly remind the legislature and the executive of their social welfare obligations. Courts are required to fashion appropriate remedies in circumstances of infringement so as to give meaning to these rights.

Remedies

91. In terms of section 38 of the Constitution, a competent court when dealing with an infringement or threatened infringement of a right set out in the Bill of Rights may grant appropriate relief, including a declaration of rights. In the High Court order in the Grootboom case, the court concluded that it is permitted, in terms of section 38 and 172 of the Constitution, to issue an order which identifies the violation of a constitutional right and then defines the reform that must be implemented while affording the responsible State agency the opportunity to chose the means of compliance (Grootboom v Oostenberg Municipality 2000 (3) BCLR 277 (C)). This aspect was not disturbed on appeal by the Constitutional Court as is evident in the order of the Constitutional Court which set out the shortcomings in the State’s housing policy, declared that the State must take steps to remedy these shortcomings and suggested a means to achieve the result. The court furthermore appointed the SAHRC to monitor implementation of the order. It did not do so effectively and Mrs Grootboom died without ever getting the home she wanted. In TAC, at para 106, the court outlined the remedial options in the area of socio-economic rights stressing that any relief must be effective. The nature of the right infringed and the nature of the infringement will provide guidance as to the appropriate relief in a particular case. Relief may include the issuing of a mandamus and the exercise of supervisory jurisdiction. The court did not grant a structural interdict in this instance on the basis that there was no reason to believe that the government would not respect the court’s order.

92. In the instance of an unconstitutional infringement of the negative aspect of a socio-economic right, the most appropriate remedy will be a declaration of the invalidity of the infringing law or conduct (Jafta v Schoeman 2005 (2) SA 140 (CC) paras 31, 33).

93. In relation to breaches of the positive aspects of obligations imposed by socio-economic rights more innovative remedies are required. Two remedies have been employed in this regard: the structural interdict (to rectify under a supervisory order) and declaratory relief.

Conclusion

94. The reality is that the State has limited resources. That it may spend these resources on extravagancies, in inappropriate areas or simply waste money is certainly relevant but not necessarily directly justiciable. The fact remains that budget allocations remain principally within the remit of the executive and legislature. That the judiciary may disagree with budget allocations in relation to the achievement of the rights set out in the Bill of Rights does not on that basis alone permit to judiciary to extend its reach into the other spheres of government. The potential for intervention by the judiciary is to some extent therefore limited although it may certainly investigate the reasonableness of any policy and the implementation thereof. If there is a total disregard for or misunderstanding of the rights guaranteed to all in the Bill of Rights this is a matter that can be addressed via the good offices of the Public Protector, and, if needs be via public interest litigation.

95. It would appear that the rights set out in section 28(1)(c) while not precise as to the scope, are not subject to the requirements of progressive realization subject to available resources based on the interpretation of section 29(1)(a) that the courts have already accepted. This means that they have been claimable in full since the adoption of the Bill of Rights and ought by now to be tangibly “respected and protected” by the State. As an alternative, it may be appropriate to focus on emergency medical treatment being required by children. In the specific circumstances which the Public Protector’s investigation will probably reveal, based on the interpretation of section 27(3) that resource availability may be a practical, if not legal, constraint to achievement of this particular right, together with the fact that regulatory measures have not been implemented, the Minister of Health would have a case to answer for the failure to provide emergency ICU and related facilities for children. In answering such a case, the Minister would need to place the resource constraints upon which he relies as a justification for the shortage of emergency ICU facilities for children before the court and detail all measures taken to ensure respect for and protection of the rights set out in section 27(3). If these are found to be less than reasonable in the circumstances a declarator, mandamus and supervision order would be available to the applicant for relief.

24 August 2012

Advocate RP Hoffman SC

Advocate C D Shone

For the Institute for Accountability in Southern Africa.