, QUESTION 1
No, the Gauteng Department of Health’s decision to reduce or refuse treatment to AIDS patients
solely because they are non-citizens would almost certainly be unconstitutional under South
African law. The Constitution of the Republic of South Africa, 1996 explicitly guarantees in section
27(1) that “everyone has the right to have access to healthcare services,” and in section 27(3) that
“no one may be refused emergency medical treatment.” The use of the word “everyone” means
that these rights apply to all persons within South Africa’s borders, not just citizens. Domestic
authorities such as the South African Human Rights Commission (SAHRC) have reaffirmed that the
right to access healthcare covers refugees, asylum seekers, undocumented migrants and other
non-citizens, and that denying care on the basis of nationality or documentation status is unlawful
and discriminatory (SAHRC media advisory, 2 July 2025).
In Soobramoney v Minister of Health, KwaZulu-Natal the Constitutional Court confirmed that the
state has a constitutional duty to provide available medical treatment within its limited resources,
but emphasised that this duty must be interpreted in the context of available resources
(Soobramoney v Minister of Health, KwaZulu-Natal [1997] 12 BCLR 1696 (CC)). Crucially, the state’s
resource constraints do not justify discrimination; they require that the government take
reasonable and progressive measures to realise rights, including healthcare, for all. In Minister of
Health and Others v Treatment Action Campaign and Others the Constitutional Court upheld that
the state must take reasonable measures within its available resources to realise the right of access
to healthcare and not adopt policies that undermine constitutional entitlements (Minister of Health
v TAC [2002] ZACC 15).
Further, in the case Larbi-Odam v MEC for Education (North-West Province) the Constitutional
Court held that discrimination against non-citizens (in that case in employment) was unfair because
non-citizens are a vulnerable minority with little political power, and rights that apply to
“everyone” must include non-citizens absent explicit constitutional limitation (Larbi-Odam v MEC
for Education [1997] 11 BCLR 1489 (CC)). By extension, limiting healthcare access based on
citizenship would likely constitute unfair discrimination under section 9 of the Constitution. Civil
society advocacy and recent High Court interventions in Gauteng have underscored that the state
and provincial authorities must ensure safe and unhindered access to healthcare for all residents
irrespective of nationality, including measures to remove obstacles to such access (Gauteng High
Court order, 4 December 2025).
In summary, while the state may lawfully consider resource limitations in how it implements
healthcare rights, it may not adopt a policy that denies treatment to non-citizens per se. Such a
decision would be inconsistent with the constitutional provisions guaranteeing healthcare to
“everyone,” the prohibition on unfair discrimination, and the obligations emphasised in relevant
case law.
No, the Gauteng Department of Health’s decision to reduce or refuse treatment to AIDS patients
solely because they are non-citizens would almost certainly be unconstitutional under South
African law. The Constitution of the Republic of South Africa, 1996 explicitly guarantees in section
27(1) that “everyone has the right to have access to healthcare services,” and in section 27(3) that
“no one may be refused emergency medical treatment.” The use of the word “everyone” means
that these rights apply to all persons within South Africa’s borders, not just citizens. Domestic
authorities such as the South African Human Rights Commission (SAHRC) have reaffirmed that the
right to access healthcare covers refugees, asylum seekers, undocumented migrants and other
non-citizens, and that denying care on the basis of nationality or documentation status is unlawful
and discriminatory (SAHRC media advisory, 2 July 2025).
In Soobramoney v Minister of Health, KwaZulu-Natal the Constitutional Court confirmed that the
state has a constitutional duty to provide available medical treatment within its limited resources,
but emphasised that this duty must be interpreted in the context of available resources
(Soobramoney v Minister of Health, KwaZulu-Natal [1997] 12 BCLR 1696 (CC)). Crucially, the state’s
resource constraints do not justify discrimination; they require that the government take
reasonable and progressive measures to realise rights, including healthcare, for all. In Minister of
Health and Others v Treatment Action Campaign and Others the Constitutional Court upheld that
the state must take reasonable measures within its available resources to realise the right of access
to healthcare and not adopt policies that undermine constitutional entitlements (Minister of Health
v TAC [2002] ZACC 15).
Further, in the case Larbi-Odam v MEC for Education (North-West Province) the Constitutional
Court held that discrimination against non-citizens (in that case in employment) was unfair because
non-citizens are a vulnerable minority with little political power, and rights that apply to
“everyone” must include non-citizens absent explicit constitutional limitation (Larbi-Odam v MEC
for Education [1997] 11 BCLR 1489 (CC)). By extension, limiting healthcare access based on
citizenship would likely constitute unfair discrimination under section 9 of the Constitution. Civil
society advocacy and recent High Court interventions in Gauteng have underscored that the state
and provincial authorities must ensure safe and unhindered access to healthcare for all residents
irrespective of nationality, including measures to remove obstacles to such access (Gauteng High
Court order, 4 December 2025).
In summary, while the state may lawfully consider resource limitations in how it implements
healthcare rights, it may not adopt a policy that denies treatment to non-citizens per se. Such a
decision would be inconsistent with the constitutional provisions guaranteeing healthcare to
“everyone,” the prohibition on unfair discrimination, and the obligations emphasised in relevant
case law.
