, PLEASE USE THIS DOCUMENT AS A GUIDE TO ANSWER YOUR ASSIGNMENT
QUESTION 1
1. The Gauteng Department of Health has decided to reduce the treatment given to Aids
patients who are non-citizens due to a shortage of funds and the Department’s inability to meet
the demands placed on it. Is this decision constitutional? Substantiate your answer with
reference to case law.
In considering whether the decision by the Gauteng Department of Health to reduce treatment for
AIDS patients who are non-citizens is constitutional, several factors under South African
constitutional law need to be assessed.
Firstly, Section 27(1) of the Constitution of South Africa guarantees everyone the right to access
health care services, including emergency medical treatment. However, this right is subject to
available resources, as outlined in Section 27(2). The limitation of access to health services based on
non-citizenship status could be seen as discriminatory, as the Constitution provides that all
individuals, irrespective of their citizenship, are entitled to basic healthcare services. The Gauteng
Department of Health’s decision could be challenged on the basis of equality and non-discrimination,
which are fundamental rights under the Constitution1 .
The Constitutional Court’s ruling in Soobramoney v Minister of Health (KwaZulu-Natal) (1998) is
particularly relevant. In this case, the Court held that socio-economic rights, including access to
health care, are subject to resource constraints. The Court stated that the government is not required
to provide unlimited services, but it must ensure that it allocates resources reasonably and
appropriately2 . This judgment reinforces the notion that the state's obligations are dependent on its
resources and capacity to provide services. However, any reduction or limitation must be justifiable,
and the state must show that the resource allocation is both necessary and proportionate3 .
Furthermore, the Constitutional Court has established that limitations on rights, including
socio-economic rights, must meet the standard set out in Section 36 of the Constitution. This section
allows for the limitation of rights, but only if the limitation is reasonable and justifiable in an open
and democratic society based on human dignity, equality, and freedom4 . Therefore, if the
Department’s decision to reduce treatment can be shown to be a proportional and necessary response
to the shortage of funds, it may be constitutionally permissible, but only if it can be demonstrated
that it does not unfairly discriminate against non-citizens.
In conclusion, while the reduction of treatment for AIDS patients who are non-citizens may be
constitutionally permissible under certain conditions, such a decision must meet the constitutional
criteria for limitations on rights, including being reasonable, justifiable, and non-discriminatory5 .
The Department must provide clear justification for how it allocates its limited resources and ensure
that it does not disproportionately harm non-citizens.
1: (Pierre De Vos & Freedman, 2021, p. 72)
2: (FUR2601, Study Guide, p. 91)
3: (Pierre De Vos & Freedman, 2021, p. 75)
4: (Pierre De Vos & Freedman, 2021, p. 79)
5: (Pierre De Vos & Freedman, 2021, p. 82)
QUESTION 1
1. The Gauteng Department of Health has decided to reduce the treatment given to Aids
patients who are non-citizens due to a shortage of funds and the Department’s inability to meet
the demands placed on it. Is this decision constitutional? Substantiate your answer with
reference to case law.
In considering whether the decision by the Gauteng Department of Health to reduce treatment for
AIDS patients who are non-citizens is constitutional, several factors under South African
constitutional law need to be assessed.
Firstly, Section 27(1) of the Constitution of South Africa guarantees everyone the right to access
health care services, including emergency medical treatment. However, this right is subject to
available resources, as outlined in Section 27(2). The limitation of access to health services based on
non-citizenship status could be seen as discriminatory, as the Constitution provides that all
individuals, irrespective of their citizenship, are entitled to basic healthcare services. The Gauteng
Department of Health’s decision could be challenged on the basis of equality and non-discrimination,
which are fundamental rights under the Constitution1 .
The Constitutional Court’s ruling in Soobramoney v Minister of Health (KwaZulu-Natal) (1998) is
particularly relevant. In this case, the Court held that socio-economic rights, including access to
health care, are subject to resource constraints. The Court stated that the government is not required
to provide unlimited services, but it must ensure that it allocates resources reasonably and
appropriately2 . This judgment reinforces the notion that the state's obligations are dependent on its
resources and capacity to provide services. However, any reduction or limitation must be justifiable,
and the state must show that the resource allocation is both necessary and proportionate3 .
Furthermore, the Constitutional Court has established that limitations on rights, including
socio-economic rights, must meet the standard set out in Section 36 of the Constitution. This section
allows for the limitation of rights, but only if the limitation is reasonable and justifiable in an open
and democratic society based on human dignity, equality, and freedom4 . Therefore, if the
Department’s decision to reduce treatment can be shown to be a proportional and necessary response
to the shortage of funds, it may be constitutionally permissible, but only if it can be demonstrated
that it does not unfairly discriminate against non-citizens.
In conclusion, while the reduction of treatment for AIDS patients who are non-citizens may be
constitutionally permissible under certain conditions, such a decision must meet the constitutional
criteria for limitations on rights, including being reasonable, justifiable, and non-discriminatory5 .
The Department must provide clear justification for how it allocates its limited resources and ensure
that it does not disproportionately harm non-citizens.
1: (Pierre De Vos & Freedman, 2021, p. 72)
2: (FUR2601, Study Guide, p. 91)
3: (Pierre De Vos & Freedman, 2021, p. 75)
4: (Pierre De Vos & Freedman, 2021, p. 79)
5: (Pierre De Vos & Freedman, 2021, p. 82)
