FUR2601
ASSIGNMENT 1 SEMESTER 1
2026
GUIDED ANSWERS, REFERENCES
AND EXPLANATIONS
DUE DATE: 27 MARCH
2026
, QUESTION 1
Constitutional Framework
Section 27 of the Constitution of the Republic of South Africa, 1996, establishes the right of
everyone to have access to healthcare services. Section 27(1)(a) explicitly guarantees that
everyone, including non-citizens, has the right to access healthcare services, while section
27(2) requires the state to take reasonable measures, within its available resources, to
progressively realise this right. The Constitution is clear that rights are not limited to citizens
only; therefore, non-citizens are protected under this provision. Furthermore, section 36 of
the Constitution allows for limitations on rights, but these limitations must be reasonable,
justifiable, and proportionate in an open and democratic society. In this context, the key
question is whether the Department’s policy of reducing treatment for non-citizens is a
reasonable and justifiable limitation on the constitutional right to healthcare.
Reasonableness and Resource Constraints
While the state is obligated to provide healthcare, it is recognised that resources are finite,
and not all healthcare needs can be met immediately. The Constitutional Court has
addressed the issue of resource allocation in healthcare in several landmark cases. In
Minister of Health v Treatment Action Campaign (TAC) 2002 (5) SA 721 (CC), the Court
held that the state has a constitutional duty to take reasonable steps to provide essential
medicines, including antiretroviral treatment, to all persons who need them. The Court
emphasised that although the state is not obliged to provide unlimited healthcare to
everyone immediately, policies that limit access must be carefully justified and must be
implemented in a manner that is fair, equitable, and non-discriminatory. The TAC judgment
illustrates that limitations based solely on administrative convenience or cost-saving,
without reasonable justification, do not meet the constitutional standard of reasonableness.
Therefore, while the Gauteng Department of Health faces resource constraints, these alone
cannot justify excluding an entire group of people from essential treatment.
Non-Discrimination and Equality
Section 9 of the Constitution guarantees equality and prohibits unfair discrimination on
numerous grounds, including nationality. Excluding non-citizens from AIDS treatment solely
ASSIGNMENT 1 SEMESTER 1
2026
GUIDED ANSWERS, REFERENCES
AND EXPLANATIONS
DUE DATE: 27 MARCH
2026
, QUESTION 1
Constitutional Framework
Section 27 of the Constitution of the Republic of South Africa, 1996, establishes the right of
everyone to have access to healthcare services. Section 27(1)(a) explicitly guarantees that
everyone, including non-citizens, has the right to access healthcare services, while section
27(2) requires the state to take reasonable measures, within its available resources, to
progressively realise this right. The Constitution is clear that rights are not limited to citizens
only; therefore, non-citizens are protected under this provision. Furthermore, section 36 of
the Constitution allows for limitations on rights, but these limitations must be reasonable,
justifiable, and proportionate in an open and democratic society. In this context, the key
question is whether the Department’s policy of reducing treatment for non-citizens is a
reasonable and justifiable limitation on the constitutional right to healthcare.
Reasonableness and Resource Constraints
While the state is obligated to provide healthcare, it is recognised that resources are finite,
and not all healthcare needs can be met immediately. The Constitutional Court has
addressed the issue of resource allocation in healthcare in several landmark cases. In
Minister of Health v Treatment Action Campaign (TAC) 2002 (5) SA 721 (CC), the Court
held that the state has a constitutional duty to take reasonable steps to provide essential
medicines, including antiretroviral treatment, to all persons who need them. The Court
emphasised that although the state is not obliged to provide unlimited healthcare to
everyone immediately, policies that limit access must be carefully justified and must be
implemented in a manner that is fair, equitable, and non-discriminatory. The TAC judgment
illustrates that limitations based solely on administrative convenience or cost-saving,
without reasonable justification, do not meet the constitutional standard of reasonableness.
Therefore, while the Gauteng Department of Health faces resource constraints, these alone
cannot justify excluding an entire group of people from essential treatment.
Non-Discrimination and Equality
Section 9 of the Constitution guarantees equality and prohibits unfair discrimination on
numerous grounds, including nationality. Excluding non-citizens from AIDS treatment solely
