FUR2601
Assignment 1
Semester 1
Due 27 March 2026
, QUESTION 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.
The decision by the Gauteng Department of Health to reduce treatment for non-citizens
is unconstitutional. Section 27(1)(a) of the Constitution of the Republic of South Africa,
1996 (RSA) guarantees everyone the right to access healthcare services, including non-
citizens (Constitution, 1996). This provision is not restricted to citizens only.
In Soobramoney v Minister of Health (KwaZulu-Natal) 1998 (1) SA 765 (CC), the
Constitutional Court acknowledged that resource limitations may justify prioritization of
patients, but the state must ensure that such decisions are reasonable and non-
discriminatory. The Court stated that rationing on the basis of financial constraints
alone does not justify the denial of access to healthcare for a specific group, particularly
when that denial is based on nationality, which constitutes unfair discrimination under
Section 9 of the Constitution.
Further, in Occupiers of 51 Olivia Road v City of Johannesburg 2008 (3) SA 208
(CC), the Court emphasized that government action must balance resource constraints
with the obligation to respect constitutional rights. Arbitrarily excluding non-citizens from
treatment because of limited funds would amount to unfair discrimination, as it
distinguishes between individuals based solely on citizenship.
Therefore, the Department’s policy is unconstitutional because it contravenes both
Section 27 (right to healthcare) and Section 9 (equality) of the Constitution. Any
limitation of rights must pass the limitation test under Section 36: it must be
reasonable and justifiable in an open and democratic society. Blanket exclusion of non-
citizens fails this test because less restrictive alternatives exist, such as prioritization
based on medical urgency rather than nationality.
Assignment 1
Semester 1
Due 27 March 2026
, QUESTION 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.
The decision by the Gauteng Department of Health to reduce treatment for non-citizens
is unconstitutional. Section 27(1)(a) of the Constitution of the Republic of South Africa,
1996 (RSA) guarantees everyone the right to access healthcare services, including non-
citizens (Constitution, 1996). This provision is not restricted to citizens only.
In Soobramoney v Minister of Health (KwaZulu-Natal) 1998 (1) SA 765 (CC), the
Constitutional Court acknowledged that resource limitations may justify prioritization of
patients, but the state must ensure that such decisions are reasonable and non-
discriminatory. The Court stated that rationing on the basis of financial constraints
alone does not justify the denial of access to healthcare for a specific group, particularly
when that denial is based on nationality, which constitutes unfair discrimination under
Section 9 of the Constitution.
Further, in Occupiers of 51 Olivia Road v City of Johannesburg 2008 (3) SA 208
(CC), the Court emphasized that government action must balance resource constraints
with the obligation to respect constitutional rights. Arbitrarily excluding non-citizens from
treatment because of limited funds would amount to unfair discrimination, as it
distinguishes between individuals based solely on citizenship.
Therefore, the Department’s policy is unconstitutional because it contravenes both
Section 27 (right to healthcare) and Section 9 (equality) of the Constitution. Any
limitation of rights must pass the limitation test under Section 36: it must be
reasonable and justifiable in an open and democratic society. Blanket exclusion of non-
citizens fails this test because less restrictive alternatives exist, such as prioritization
based on medical urgency rather than nationality.
