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A Comparative Analysis of The

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A Comparative Analysis of the Right to Health Care in the Public Sector and

Private Sector in South Africa

Mini-dissertation submitted in partial fulfilment of the RHP 801 course.

Valled Edward Lubisi

15407609

Study leader: Professor P Carstens

Faculty of Law

University of Pretoria

Declaration…………………………………………………………………………………v

Acknowledgements………………………………………………………………………..vi

Abstract……………………………………………………………………………………..vii

CHAPTER 1: RESEARCH PROPOSAL

1.1 Introduction……………………………………………………………………………. 1

1.2 Research Questions………………………………………………………………...... 3

1.3 Purpose of Study..................................................................................................3

1.4 Research Methodology....................................................................................... 4

1.5 Proposed Chapter Otline......................................................................................5

1.6 Literature Review..................................................................................................6

1.6.1 Connection between the Right to Access Health Care and other Fundamental
Rights..........................................................................................................................7

1.6.2 Difference in Service Between the Public Health Care and the Private Health
Care Sector.................................................................................................................9

1.6.3 The Duty of the State to Realise the Right to Access Health............................12

1.6.4 The Role of International Bodies in the Protection of the Right to Access Health
Care …………………………………………………………………………………...15

1.7 Definition of Key Concepts...................................................................................17

CHAPETR 2: THE IMPACT OF ACCESS TO HEALTH CARE ON DIGNITY,

EQUALITY AND FREEDOM

2.1 Introduction..........................................................................................................18

2.2 The Right to Access Health Care and the Right to Dignity...................................19

© University of Pretoria
2.3 The Right to Access Health Care and the Right to Equality.................................21

2.4 The Right to Access Health Care and the Right to Freedom...............................23

2.5 The Connection between the Right to Access Health Care and other Rights......24

2.6 Conclusion............................................................................................................24

CHAPTER 3: A COMPERATIVE ANALYSIS OF HEALTH CARE SERVICES

PROVISION IN THE PUBLIC HEALTH CARE SECTOR AND THE PRIVATE
HEALTH CARE SECTOR

3.1 Introduction...........................................................................................................25

3.2 The Public Health Care Sector.............................................................................26

3.2.1 Affordability........................................................................................................26

3.2.1 Accessibility....................................................................................................,,,27

3.2.2 Availability.......................................................................................................,,28

3.3 The Private Health Care Sector...........................................................................29

3.3.1 Affordability......................................................................................................,,30

3.3.2 Accessibility....................................................................................................,. 31

3.4 Comparative Analysis of the Private Health Care Sector and Public Health Care
Sector………………………………………………………………………………………..32

3.5 Conclusion............................................................................................................34

CHAPTER 4: THE ROLE OF THE STATE TO ENSURE PROGRESSIVE

REALISATION OF THE RIGHT TO ACCESS HEALTH CARE

4.1 Introduction...........................................................................................................36

4.2 Implication of Section 27 of the South African Constitution...................................37

4.2.1 Concept of Progressive Realisation………………………………………………...38

4.2.2 Concept of Availability of Resources…………………………………………........40

iii

© University of Pretoria
4,3 The Efforts by the South African Government to Realise the Right to Access Health
Care in the Private and the Public Sectors................................................................41

4.3.1 The Private Health Care Sector……………………………………………………41

4.3.2 The Public Health Care Sector……………………………………………………..42

4.4 Conclusion………………………………………………………………………………43

CHAPTER 5: CONCLUSION AND RECOMMENDATIONS

5.1 Conclusion……………………………………………………………………………,,.,44

5.2 Recommendations………………………………...…………………………………...45

BIBLIOGRAPHY……………………………………………………………….………......48

I, Valled Edward Lubisi, do hereby declare that this mini-dissertation titled, A

Comparative Analysis of the Right to Health Care in the Public Sector and Private
Sector in South Africa, hereby submitted by me, is my own work in design and
execution. All the sources that I have used or quoted have been indicated and duly
acknowledged by means of complete references.

………………………………..

SIGNATURE

(V.E LUBISI)

This study would not have been achieved without the contribution and help of Miss
Zandile Dube for her secretarial assistance, and my supervisor Professor Pieter Carstens.
They have guided me throughout my research. I would like to express my deepest
appreciation for their patience, support and encouragement that they have served me
during the writing of this dissertation.

My appreciation goes to my twin brother, Tivoneleni Lubisi and my wife Nelly who gave
me all the moral support and reasons that I needed to see the value and invest in
education. All the sacrifices they have made although they had their own personal
responsibilities gave me the courage and motivated me to go an extra mile.

In a world where rights play an important role in the welfare of people, mere knowledge
of the rights is not necessary but a clear understanding and appreciation of the nature of
rights is essential. One of the most important rights which people are oblivious about is
the right to health care services. From the face of it, the right to health care services
seems to be an unsophisticated right which everyone understands and appreciates.
However, this right, has far more implications than one may immediately perceive. Ideally,
the right to health care services should be available to everyone as it concerns the welfare
of people. This work will firstly study how the division between the private and the public
health care sector affects the way in which the right to heath care is afforded to individuals
in South Africa. In this regard, the cost, quality and affordability of the health care services
will be considered. The work will then study the gap that is created between the poor and
the rich because of the division between the private and the public health care sector.
The Act will also study the connection that exists between the right to health care services
and the founding principles of the South African Constitution. The researcher’s objective
is to reconcile the private and the public health care sector to ensure that there is
realisation of the right to health as provided for by the South African Constitution.

vii

1.1 INTRODUCTION

The Constitution of South Africa is the highest law of the Republic.1 It is based on the
democratic values of human dignity, equality and freedom.2 In addition to these values,
the South African Constitution (Constitution) enshrines other essential rights which are
closely linked to the founding values of the Constitution namely equality, human dignity
and freedom. One of the rights which is provided for by the Constitution and which is
closely linked to the founding values of the Constitution is the right to health care
services.

The right to access health is one of the rights which affects everyone and which seeks
to cover and accommodate everyone. This is evidenced by its ability to accommodate
different groups of people. Firstly, the right is depicted in a broad manner which
accommodates everyone. In this regard the Constitution provides that everyone has
the right to access health care services.3 Secondly, this right is narrowed down to the
children and in this regard the Constitution provides for accessibility of elementary
health care service for children.4 To add to this the Constitution also accommodates
for the prisoners and the detained person and affords them the right to sufficient
medical treatment at the expense of the state.5 The study will however focus on the
right to access to affordable health care services as provided for by section 27 (1) (a)
of the Constitution.

The issue of health care has become one of the most debated and hence most
controversial in South Africa. This has been necessitated by the gradual depletion of
the health care resources and the division between the public and the private health
care sector.6 On one hand, the gradual depletion of health care resources is evidenced

1
The Constitution of the Republic of South Africa, Act 108 of 1996, section 2.
2
The Constitution of the Republic of South Africa, section 1(a).
3
The Constitution of the Republic of South Africa, Act 108 of 1996, section 27(1) (a).
4
The Constitution of the South Africa, Act 108 of 1996, section 28 (1) (c).
5
The Constitution of South Africa, Act 108 of 1996, section 35 (1).
6
Patrick Figgis “Depleting resources adding pressure to healthcare” available at
http://www.pwc.com/gx/en/industries/healthcare/emerging-trends-pwc-healthcare/depleting-
resources.html (accessed on 19 March 2016).

© University of Pretoria
by a deterioration in skilled labour in the health care sector. In South Africa, over the
years there has been a decline in the skills of health care service providers caused by
an increasing demand of the health care sector and lack of sufficient training of service
providers to cater for the increased number of people in need of the health care
services.7

On the other hand, division between the public and the private sectors in the health
system is evidenced by the apparent severe inequalities in the extent and the quality
of health care offered by the public health care sector on one hand and the private
health care sector on the other hand. In the Soobramoney case, the court stated
showed that there is a serious dividing line between the private health care sector and
the public health care sector, with the former having quality services well skilled
personnel and the latter having limited resources and not being able to assist everyone
who needs help.8

One factor that has had an impact on health care resources leading to their depletion
is the number of people living with HIV/AIDS in South Africa. In 2005, it was estimated
that 5.5 million people in South Africa were living with HIV/AIDS.9The implications of
such great numbers is that the government was burdened with task of providing
antiretroviral drugs to the people living with the pandemic. Today, the roll out of ARVs
is one of the factors that continues to deplete government resources.10 Financially and
professionally, the government is unable to cater for other health issues and socio-
economic issues as most of it budget is consumed and allocated for the use of
providing free ARVs to those in need.11

The depletion in the health care resources has affected the realisation and protection
of other constitutional rights for example equality. It has amongst other things led to
inequality in provision of health care services, some people receiving the best health

7
Mignonne Breier “The shortage of medical doctors in South Africa: Scarce and critical skills research
Project” (2008) available at http://www.labour.gov.za/DOL/downloads/documents/research-
documents/Medical%20Doctors_DoL_Report.pdf p9 (accessed on 21 March 2016).
8
Soobramoney v Minister of Health 1998 (1) SA 765 (CC) at paragraph 31.
9
(Note 7 above) page 19.
10
Jannie Hugo, Lucie Allan Doctors for Tomorrow: Family Medicine in South Africa (2008) 21.
11
T Fleischer “Will escalating spending on HIV treatment displace funding for treatment of other
diseases?” (2010) Vol. 100, No. 1 South African Medical Journal 32.

© University of Pretoria
care service and others receiving the health care service which is not quality. This
contention is first evidenced by the gap that has been created between the private and
public sector with regard the affordability, quality and the way in which the health care
services are accessible to different classes of people in South Africa.

Taking into cognisance the impact that the right to health has on other rights especially
the values on which the Constitution is based, it is imperative to study and analyse the
way in which the right to health care may be sustained and improved to ensure the
realisation and upholding of the values on which the Constitution is based.

1.2 RESEACH QUESTIONS

 What is the impact of health care services on the constitutional values of

freedom, dignity and equality?
 What are the differences between the public sector and private sector
with regards to health care services?
 What are the roles and responsibilities of the state and international
instruments to effectively realise the right to access health care services?
 What is the effect of the depletion of health care resources on the right of
health care services and the way in which it is afforded to the poor
population and the rich population?

1.3 PURPOSE OF STUDY

The premise of the study lies in the investigation and exploration of whether people in
South Africa have access to affordable and good quality health care services. The work
in this regard seeks to investigate the quality of health services provided by the public
sector in contrast to the services provided by the private sector.

It has been argued, that the private sector provides more efficient and high quality
services, contrariwise, the public sector has been seen to provide services that are of

© University of Pretoria
low quality and hence lacks efficiency.12 The work seeks to evaluate and asses the two
sectors and to determine the extent to which the above arguments are true. The
purpose of this assessment is to ensure that both systems accommodate everyone as
provided for by the Constitution. Additionally, the study investigates whether the state
is taking reasonable legislative measures to ensure the realization and the protection
of the access to health care services.

The aim of the study is to investigate and explore the differences in the quality of
services between the public sector and the private sector. The researcher also aims to
harmonise the two sectors to bring about a system which can accommodate everyone
and thereby protect the constitutional right to health care.

The objectives of this study are as follows:

 To evaluate the effectiveness and the quality of healthcare services provided

by the private and the public sector
 To study which of these sectors seek to uphold the values on which the
Constitution is based
 To study the mechanisms and the measures put in place by the state in
realisation of the right to health care services
 To investigate the availability, quality and affordability of health care services
in South Africa
 To compare between the two sectors with regards to healthcare services
 To investigate the possibility of harmonisation of the public sector and the
private sector to realise and protect the constitutional right to health care
services.

1.4 RESEARCH METHODOLOGY

Taking into consideration the nature of this study, it is apparent that doctrinal
methodology will be conducted. Doctrinal methodology is also called desk-based
methodology which makes use of primary sources such as books, journals, case law

12
R Jenkins “Comparative Performance of Private and Public Healthcare Systems in Low and Middle-
income Countries: A Systematic Review” available at
http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3378609/ (accessed on 25 March 2016).

© University of Pretoria
and internet sources. For conducting this study therefore, the researcher will consult
the above-mentioned sources. And consequently, this research will be conducted
through doctrinal methodology.

1.5 PROPOSED CHAPTER OUTLINE

CHAPTER 1: INTRODUCTION AND BACKGROUND OF STUDY

This chapter serves as an introduction and background to the study. In additions to

that it outlines concisely, the purpose of the study and the aims and objectives. It also
sets out the methods and techniques used for this research.

CHAPTER 2: THE IMPACT OF RIGHT TO HEALTH CARE SERVICES ON THE

RIGHT TO FREEDOM, DIGNITY AND EQUALITY

As already stated above the right to health care services has an impact on the values
on which the Constitution is based, namely equality, freedom and dignity. This chapter
seeks to evaluate the connection that is seen to exist between the right to health care
services and these constitutional values. In this regard the researcher will also assess
the role that health care plays on the right to dignity, quality and freedom.

CHAPTER 3: THE COMPARATIVE ANALYSIS OF HEALTH CARE SERVICE

PROVISION IN THE PUBLIC SECTOR AND IN THE PRIVATE SECTOR

The issue of health care services has in the public and private sector has over the
years become a subject of unending debates. In this chapter the researcher will
compare the two sectors in terms of service provision, affordability, quality, and
effectiveness. The researcher will also assess the depletion of the health care
resources as a cause of the gap that exists between the two sectors.

This chapter will therefore try to tackle the gap that exists between the two sectors in
terms of affordability and quality. In concluding the chapter, the researcher will analyse
the way in which the sustainable provision of health care can be used as a measure to
remedy the problem of depleting resources and the gap between the two sectors.

© University of Pretoria
CHAPTER 4: THE ROLE AND OBLIGATION OF STATE TO ENSURE
PROGRESSIVE REALISATION OF THE RIGHT TO HEALTH CARE

In addition to creating a gap between the private and public health sector, depletion of
health care resources also affects the way in which the state realises and protects the
right to health care. This chapter outlines the role of the state in ensuring successive
realization of the right to access health care services.

CHAPTER 5: RECOMMENDATIONS AND CONCLUSIONS

Several problems will be seen throughout the chapters. The researcher in this chapter
will make recommendation which have the potential of bringing change to the way in
which the right to health may be realised in a way which is in line with the constitutional
values of equality, freedom and human dignity. In addition to making
recommendations, the chapter serves as a conclusion to the work.

1.6 LITERATURE REVIEW

Voluminous literature has covered the issues around health care and the accessibility
thereof. This issue as already mentioned is one of the issues which has caused a lot
of controversy to academics and to the courts. It is therefore imperative to study what
other academics say about this issue. This will bring better understanding on the issue
and help the researcher find a solution to the issue of accessibility of health care
services and the reconcile the private health care sector and the private health care
sector and ultimately create a health care system which accommodates everyone
regardless of whether they can afford or not.

Hassim is of the view that the rights to human dignity, and equality are important for
good health.13 The inference that can be drawn from this contention is that for one to
be said to have a right to good health, their right to equality, dignity and freedom must
be realised and respected. It is the opinion of the researcher however that the position
is exactly the opposite of what Hassim opines.

13
Hassim et al Health and Democracy (2007) 19.

© University of Pretoria
The researcher is in this regard, of the view that health care is important to the right to
equality, dignity and freedom. This means that for one to argue that the rights to
equality, dignity and freedom have been realised and protected, then health care
services must be readily available. It is therefore the contention of the researcher that
the realisation of the right to health care is one of the starting points to the protection
and realisation of the three constitutional values of equality, dignity and freedom.

1.6.1 THE CONNECTION BETWEEN THE RIGHT TO HEALTH AND OTHER

FUNDAMENTAL RIGHTS

The obligation placed on the state to ensure access of health care services to all is in
a special way connected to some of the most fundamental rights encompassed in the
Constitution. It is noteworthy, therefore in this regard that the issue of health care
services and ensuring that the citizens have access thereof is an issue which affects
the exercise of other rights encompassed in the Constitution as will be seen below.14

Marius Pieterse believes that the imposition of the obligation on the state to realise and
protect the right to access health care services may have an impact on private rights
legitimate expectation and interests.15 Pieterse goes on to highlight that the
constitutional obligation to protect and realise the right to access health care services
and other socio-economic rights may sometimes outweigh the competing private rights
and interest and therefore justify the limitations of such private rights and interests.16

The researcher agrees that the obligation of the state to realise the right to access
health care services may sometimes outweigh the competing civil and political rights.
However, the researcher argues that despite the potential of the state’s obligation to
realize the socio-economic rights to outweigh the competing civil and political rights,
there remains between these two extremes a connection which can never be done
away with. Therefore, the researcher as will be shown below is of the strong opinion
that the right to access health care services has a great impact on the private rights
and interests.

14
M Pieterse “The Legitimizing/ Insulating Effect of Socio‐economic Rights” (2007) 22 Canadian Journal of Law
Society (1) 6.
15
M Pieterse Can Rights Cure: The Impact of Human Rights Litigation on South African Health System (2014) 130.
16
Minister of Public Works v Kyalami Ridge Environmental Association 2001 (3) SA 1151 CC Para 37.

© University of Pretoria
Health care comprises several socio-economic factors which entail its connection with
other rights. The UN Committee on economic, social and cultural rights is of the view
that the right to health is essential for the exercise of other indispensable human
rights.17 To observe the right to health care in practice other socio-economic rights also
need to be protected and promoted without fear, favour or prejudice. For instance,
Section 27(1) (b) stipulates that everyone has the right to have access to sufficient
food and water.18 The extent to which the citizens of a country can access good food
and water is an indication of development.

Krisela Steyn believes development and health are closely related.19 This contention
was supported by Kaplan who observed that for several years it has been recognised
that the people with a low socio-economic level experience more health issues as
compared to people with a good socio-economic welfare.20 This serves as evidence of
the close relationship that exist between other social economic rights like the rights to
access water and food,21 and health.

Another right which is connected to the right to health care is the right to life.22 It was
observed in the case of S v Makwanyane that; the right to life is antecedent to all the
other rights in the Constitution.23 This is because without the right to life it will be
impossible to exercise other rights. The view of the researcher is that one cannot be
said to have the full right to life if his or her right to health is not fully protected o
recognised.

The General Comment supports the interrelated nature of human rights by stipulating
that the right to health is closely related to and dependent upon other human rights.24
This means that protection of other entitlements such as right to life, housing, food,
human dignity and non-discrimination, among others, are important towards

17
General Comment No.14 2000, The Right to the Highest Attainable Standard of Health, Article 12 of
the International Covenant on Economic, Social and Cultural Rights.
18
Constitution of the Republic of South Africa, Act 108 of 1996, Section 27(1) (b).
19
Krisela Steyn & Michelle Schneider “An Overview of pervert in South Africa” (2001) available at
http://www.mrc.ac.za/bod/povertyfinal.pdf (accessed on 23 March 2016).
20
Kaplan RM, Hartwell SL, Wilson DK, Wallace JP, J Gen Effects of diet and exercise interventions on
control and quality of life in non-insulin-dependent diabetes mellitus (1987) .
21
The South African Constitution, section 27(1) (b).
22
The Constitution of the Republic of South Africa, Act 108 of 1996, Section 11.
23
1995 (3) SA 391 CC.
24
Note 12 above.

© University of Pretoria
recognition of the right to health. It can therefore be concluded that the right to health
cannot be separated from the other fundamental rights enshrined in the Constitution.

1.6.2 DIFFERENCE IN SERVICES BETWEEN THE PUBLIC HEALTH CARE

AND THE PRIVATE HEALTH CARE FACILITIES

According to Harris, the South African economy is a free market economy

which encompasses both the public and the private sector. 25 The two sectors
are both role players in the economy and are equally important.
Notwithstanding the advantages that come with having a mixed economy, it
is noteworthy that several problems arise from it. Some of these problems
are related to the issue of equality and are evident in the health care sector.

In a country based on democracy and Constitutionalism, equality is a right which is of

fundamental importance and it is always the duty of the state to protect it. The current
state in the South African health system reflects the opposite of what a state based on
constitution seeks. According Piertese, it would be an understatement to say that the
current South African health care system reflects inequalities in the extent and quality
of access of health care services.26

Hassim in agreement with Piertese shows that the inequality in the extent and quality
of access to health care is evidenced by the fact that while the minority enjoy world
class health services in the private sector, the majority are subjected to low quality
health care services offered by the public sector.27 The huge gap existing between the
private health sector and the public health sector has become an issue of contention
which requires state intervention.

According to Carstens, the health system in South Africa consists of both the public
and the private health care systems. He further highlights that the larger population in
South Africa is reliant on public health care services while the private health care
services is rendered to the people that can afford to pay for such services or who are

25
Laurens Harris “A Mixed Economy of a Democratic South Africa” available at
http://www.iassa.co.za/articles/033_sum1990_05.pdf (accessed on 21 November 24, 2016).
26
M Pieterse (Note 15 above) 125.
27
Hassim (Note 13 above) 17.

© University of Pretoria
reliant on medical schemes to pay for them.28 Reading between the lines of the above
contention two problems may be seen.

While it is a great thing that the public health care sector is more affordable as
compared to the private healthcare sector, it is submitted that the affordability has led
to overcrowding in the public health care facilities and hence a decline in the quality of
services provided by this sector. In this regard the researcher concurs with Marjorie
Jobson who observed that since 1994, there has been an improvement in the access
to clinics but also a substantial decline in the quality provided by those clinics.29

Again, while it is incredible that the private health care sector has good facilities and
good quality services, the sad reality is that they are expensive and unaffordable to
most South Africans. The cost of the private health care sector is necessitated by the
need by the fact that private health care service providers have the main aim of making
profit. According to Hassim other factors that contribute towards high prices of are anti-
competitive pricing of medicine, laboratories and specialist services and the collusions
among big hospitals.30 Due to the gap that exists between the private and the public
sector, it can therefore be argued that accessibility to health care services is not based
on equality.

The point of departure is proper understanding of the private/public gap is to highlight

how it was created and how it expanded. It should be noted that the differences
between the private health sector and the public health sector are sustained and
reinforced by the operation of the South African health care system. Heywood, in this
regard believes the public health sector continues to enable and flourish the private
health sector by retaining the responsibility to train the professionals and this according
to him continues to put pressure on the private sector.31

Heywood went on to highlight that the other reason why the private sector is expanding
because the public sector is that after training the professionals, it underpays them and

28
Carstens P and Pearmain P, Foundational Principles of South African Law, (2007) 229.
29
Marjorie Jobson “Structure of the health system in South Africa” (2015) available at
www.khulumani.net/.../225_30267364dfc1416597dcad919c37ac71.htm... (accessed on 28 March
2016).
30
Adila Hassim, Mark Heywood and Jonathan Berger Health and Democracy (2007) 164.
31
N Heywood “Debunking ‘Conglomo‐talk’: A Case Study of the animus curiae as an Instrument for Advocacy,
Investigation and Mobilization ” (2001) 5 Law, Democracy, and Development 133.

© University of Pretoria
thereby draws well-trained workers away from it. In this way the public health care
sector is left under-staffed and this usually draws the will resources patients away from
it also. According to Van Rensburg, the private sector continues to expand because it
is left unregulated and therefore its prices continue to sky rocket making the services
unaffordable to the middle and lower class. This according to him expands the gap that
exists between the private and the private sector.32

The gap between the private health sector and the private health sector has expanded
in the last two decades,33and this has driven the state into taking all reasonable steps
bridge it. Because South Africa has a mixed economy, the question of addressing the
differences between the private and the public health sector requires a balance of
seemingly competing rights.

One issue that stems from the issue of the private/ public health service is the issue of
attaining equality for all as required by the Constitution and at the same time ensuring
that the right to access health care services is also protected. Section 27 (2) of then
Constitution provides that the state must take reasonable, legislative and other
measures, within its available resources to achieve the progressive realisation of the
right of everyone to have access to health care. Furthermore, section 9 (2) of the
Constitution the right to equality entails full and equal enjoyment of rights and this
includes the right to access health care.

The health system in South Africa as mentioned above is based on affordability as

opposed to need. This has led to apparent inequalities in the extent and quality of
service. on one hand while the minority enjoys world class quality services in the
private sector, the majority are subjected to the low-quality services offered by the
public sector. This has led to debates on whether the health system protects the right
to equality which is provided for by section 9 of the Constitution. The state is therefore
tasked with making efforts to eradicate and do away with the inequalities that exist in
the access to health care.

32
HCJ van Rensburg & MC Engelbrecht “Transformation of the South African Health System: Post 1994” in Van
Rensburg ed Health and Health care in South Africa 2nd ed (2012) 101.
33
Van Rensburg (Note 32 above) 179.

© University of Pretoria
The state has tried in several ways to bridge the gap existing between the private and
public health sector and thereby eradicate inequalities by making provision for
regulation of the private sector. This has however led to nothing but court cases before
the Constitutional Court with the private alleging that regulation infringes on their rights.
In the Minister of Health v New Clicks South Africa (Pty) Ltd,34 the challenge was based
on limits which were placed on the profit margins that the pharmacies could add to
dispensed medicines. The court in this case firstly emphasised on the necessity of
price control but it held that the limits on the profit margins were inappropriate and
unconstitutional.

Noteworthy from this case is the fact that the court did not do away with the regulation
of the prices in the private sector, nor did it eradicate the price control, the court simple
held that the regulations by the public sector must be within the confines of the law and
must be reasonable. And this means that the state, subject to the law may still regulate
the private sector in order to make the health sector a better one which caters for
everyone based in need and not affordability.

1.6.3 THE DUTY OF THE STATE TO REALISE THE RIGHT TO ACCESS HEALTH

Berger outlines the notion of access health care as a universal indispensable right for
which the state has a corresponding duty to respect, fulfil, promote and protect for all.35
This means that the state has the duty to take reasonable measure to realise and
protect the rights to health. The protection of the right to access health care services
entails the protection of the other fundamental rights provided for in the Constitution.

In a country based on equality and other Constitutional values, it is apparent that one
of the state’s duties is to ensure a fair and reasonable gap between the private and
public health sectors. South Africa is one of the Country encountering problems with
private/public divide in the health care sector and this has led to debates based on the

34
2006 (2) SA 311 (CC) para 32.
35
(Note 23 Above) 167.

© University of Pretoria
whether there is equality in the health sector. In South Africa, there is on one hand, a
private health sector providing world class services and on the other hand a public
sector providing services of low quality. This, according to the South African legislature
is a cause for concern.

Piertese is of the belief that the Constitution requires a fundamental reform of the health
system.36The state in this regard has an obligation to ensure that the gap that exists
between the private health care sector and the public health care sector is closed.
From the steps that have been taken by the state, it can be said with confidence that
the state has taken reasonable steps to bridge the gap between the private health
sector and the public health care sector.

Firstly, the legislature set as a goal in its 1997 White Paper on the Transformation of
the Heath Care system of South Africa, the reduction of inequalities and discrepancies
in the health care system. The government was to achieve this goal by combination of
the private health care sector and the public health care sector into one system which
would cater based on need and not on whether a person a person can afford or not. 37

Secondly the efforts of the state may be seen through the National Health Act.38 In
section 2 (a) this act provides for the objectives of the Act which include the
establishment of a health care system encompassing both the private and the public
health sector and which provides the population with the best health care services in
manner which is equitable. In the above-mentioned ways the state is making an effort
to ensure that the gap between the private and public sector is fair and rational.

Section 27(2) places a duty on the state to take reasonable measures within available
resources to realise the right to health. Several cases for example the case of Minister
of Health and Others v Treatment Action Campaign39 have been decided to enforce
the duty of the state to realise the right to access health care services. The realisation
of the right to access health care has been a challenge because it is subject to the

36
M Pieterse Can Rights Cure: The Impact of the Human Rights Litigation on the South African Heath System
(2014) 126.
37
White Paper on the Transformation of the Health Care System of South Africa (1992) 1.1.1 and 1.1.2 (a)
38
61 of 2003.
39
2002 (5) SA 721 (CC).

© University of Pretoria
availability of resources. The Constitution of South Africa provides that the state must
take reasonable measures within available resources.40

Whereas it is common cause that the availability of resources may be an obstacle to

the protection of the right to health, the Constitutional Court of South Africa has
guaranteed the justiciability of the socio-economic rights. In the case of Government
of the Republic of South Africa v Grootboom the Constitutional Court held that the state
may not use the notion availability of resources to evade its Constitutional duty to
realise the right to realise socio economic rights.41 In agreement with Khoza, the
researcher submits that where the cases of justiciability of socio-economic rights are
brought before the court, the state cannot evade its duty to protect these rights by
merely arguing that it lacks resources.42 The state has the duty to ensure that no
obstacle stands in the way of citizens to access socio-economic rights. This, in the
cases was to ensure that the action of the state is based on reasonableness and not
on mere excuses based on lack of resources.

Pieterse is of the sentiment that the obligation of the state in protection of the right to
access health care has implications on the individuals in the private health sector and
firms therein. Pieterse had said this in agreement with Daniels who believes rights are
not advanced by being invoked against the state, but the state sometimes must invoke
then rights against the private entities to ensure that there is full enjoyment of rights by
everyone.43

In this regard, it is the researcher’s submission that even though under normal
circumstances, the private sector should be left unregulated, the regulation of the
private sector to ensure full enjoyment of the right to health care by everyone is
allowable. This submission agrees with Pieterse who hold the opinion that even if it is
the duty of the state to realise the right to access health care, the state’s infringement
on the rights of the private institutions to protect this Constitutional right can be
justified.44

40
Constitution of the Republic of South Africa, Section 27(2)
41
2001 (1) SA 46 (CC) at paragraph 39.
42
S Khoza Socio-economic Rights in South Africa (2007) 41.
43
N Daniels Just Health Care (1985) 114.

44
M Piertese (note 29 above) 128.

© University of Pretoria
6.1.4 THE ROLE OF INTERNATIONAL BODIES IN THE PROTECTION OF
THE RIGHT TO ACCESS HEALTH CARE SERVICES

International law standards require that the obligation of the state to protect the right
to health entails the regulation by the state of the domestic health service delivery in a
way that enables equitable access to healthcare services and ensures availability
accessibility, acceptability and quality of health care.45 Reading between the lines of
the above mentioned statement one may immediately perceive it effect on the states
whose health care service deliver is partially or wholly privatised. The apparent effect
of the statement will be that such states will be required to closely regulate the private
sector activities.46

The question that remains unanswered is whether the South African health system
complies with the international standards which provide for the regulation by the state
in cases where the health system is partially of wholly privatised. The South African
domestic health care service delivery is partially privatised as it consists of both the
public health care sector and the private health care sector. However, the private sector
activities in South Africa have been left unsupervised and this is evidenced by the
soaring prices in the private health care delivery. This has ultimately led to the
problematic divide between the private and the public health care sectors in South
Africa,

According to the World Health Organisation Constitution highest attainable standard of

health is a fundamental right of every human being.47 The right to access health care
services is also mentioned in the 1948 Universal Declaration of Human Rights.48 The
right to access health care services is also provided for in the International Covenant
on Economic, Social and Cultural Rights.49 South Africa ratified the above-mentioned
instruments and this places an obligation on South Africa to ensure the realisation of
the right to health care services.50

45
M Pieterse (Note 29 above) 127.
46
YA Vawda & BK Baker “Achieving Social Justice in the Human Rights/Intellectual Property Debate: Realising a
Goal of Access to Medicines” (2013) 13 African Human Rights Law Journal 55 62.
47
The World Health Organization Constitution of 2006, Article 1.
48
Universal Declaration of Human Rights, Article 25.
49
International Covenant on Economic Social and Cultural rights, Article 12.
50
A E Yamin, the right to health and its relevance to the United States available at
http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1449334.

© University of Pretoria
The incorporation of the right to health in international instruments has been seen to
have a positive impact in the way that countries view this right. The incorporation of
health care under international law as a fundamental law has led to the incorporation
of health care services in several the states’ constitutions. This is evidence that
international law has played great role in the realisation of the right to health care
services by states.

Chirwa believes; South Africa’s obligation to protect the rights in the Bill of rights should
be understood international law.51 This, shows the role that international law plays in
enforcing domestic laws of the states including the laws relating to socio-economic
rights including the right to access health care. The researcher believes that the
international laws have played great roles in ensuring that the right to access health
care is realised and protected by the state.

The above-mentioned opinion of the researcher is based firstly on the fact that the
World Health Organisation has through its Constitution introduced and embraced the
right to access health care as an obligation of each state. In this regard Frank P Grad
credits the World Health Organisation for establishing health as a fundamental,
inalienable right that states are obliged to protect and which right the states cannot
abridge or do away with.

Secondly the opinion of the researcher in this regard is based on the cited development
of International law which has occurred over years. Yamin, in his case study of the
impact of international law on health in United States of America, stated that there have
been considerable developments in international law governing health care. He stated
that the right to access health is no longer based much on issues of quality but is now
52
based on matters of social justice. This shows the role that international law has
played in ensuring that the right to access health care is firstly incorporated in many
domestic constitutions, realised and protected by the states.

51
DM Chirwa “The Right to Health in International Law: Its Implications for the Obligations of State and Non‐
State Actors in Ensuring Access to Medicines” (2013) 19 South African Journal on Human Rights 556.
52
A E Yamin “The Right to Health Under International Law and Its Relevance to the United States” (2005) 95 (7)
American Journal of Public Health 1157.

a) Socio-economic rights- socio-economic rights are rights that grant people

basic needs and enable them to lead a dignified life.53 For the purposes of
this study socio-economic rights refer to the socio-economic rights as
provided for by the Constitution of the Republic of South Africa. These
include access to housing, water, social assistance and health.
b) Access to health care- access to health care exists If services are
available and there is an adequate supply of services, then the opportunity
to obtain health care exists.54
c) Affordability- affordability is defined as the percentage of income a
household can devote to health care while still having sufficient income to
address other necessities.55
d) Health services – for this study, health care services as provided for by
section 27 of the Constitution of the republic of South Africa.56
e) Public health sector- this is a health care establishment established and
rum by the state.57
f) Private health sector- for this study private health care sector means a
private health establishment which is defined as the health establishment
which is not owned by the state.58

53
(Note 28 above) 20.
54
Gulliford M1, Figueroa-Munoz J, Morgan M, Hughes D, Gibson B, Beech R, Hudson M. (2002) “What
does 'access to health care' mean?” available at http://www.ncbi.nlm.nih.gov/pubmed/12171751
(accessed 13 June 2016).
55
Barber C and Miller M “Affordable Health Care for All: What Does Affordable Mean?” available at
http://www.communitycatalyst.org/doc-store/publications/affordable_health_care_for_all_apr07.pdf
(Accessed on 13 June 2016).
56
National Health Act, Section 1.
57
(note 22 above) 3.
58
National health Act, Section 1.

THE IMPACT OF HEALTH CARE SERVICES ON DIGNITY, EQUALITY AND

FREEDOM

2.1 INTRODUCTION

South Africa’s history is characterised by gross violations of human rights. Rights were
afforded based on colour and this amounted to unfair discrimination before th invent of
the Constitution, there existed a well-established legal order which was not based on
any constitutional values or inherent right.59 The transformation from the era of
discrimination to the Constitutional era has however brought significant change.

The Constitution should be restorative as it seeks to restore and to heal past violations
of human rights. The intention behind the drafting of the Constitution was to surmount
the afflictive history and build a society based on self-governing values, informative
justice and indispensable human rights.60 The Constitution is based on dignity, equality
and freedom and these have impacted on the way in which rights are interpreted.

The constitutional values of dignity, equality and freedom has led to the emergence
and incorporation of the socio-economic rights, one of which is the right to health.61 It
is submitted that the connection between constitutional values and the right to health
is because health is a socio-economic right. It affects the social and economic aspects
of people’s lives and therefore affects the rights to dignity, equality and the right to
freedom.

59
Carstens P (Note 17 above) 22.
60
Preamble of the Constitution of the Republic of South Africa, Act 108 of 1996.
61
Choma H, “Constitutional Enforcement of Socio-economic Rights: A South African Case Study” (2009)
Vol6, No 6, US-China Law Review, 41.

Dignity as a value upon which the Constitution is based has a philosophical and
universal impact on the way in which the other rights and the law in general is
interpreted or applied in South Africa. In the case of S v Makwanyane,62 it was held
that the Constitution makes it particularly imperative for courts to develop the
entrenched, fundamental rights in terms of a cohesive set of values. These values
comprise dignity.

The right to health care is one of the rights entrenched in the Constitution. It is closely
linked to dignity. Human dignity is based on the treatment of people with respect and
deserved worth. Dignity has long been prominent in the discourses of health. It is
submitted that ensuring dignity means, firstly ensuring the availability of health care
resources and then treating the people with respect.

The right to health care is a fundamental right and is essential for both life and human
dignity. The significance of health lies in the fact that poor health leads to the
diminishing of both life and health. At the basis of a person’s welfare is his dignity. The
right to afford dignity is the duty of health care provider. It is submitted therefore that in
offering health care services, one must ensure that he or she treats patients with
utmost respect and dignity.63

Several groups of people are subjected to disrespectful treatment which may be

equated to a violation of the right to dignity. It has been stated that the respect for
dignity is manifested or shown in the way in which patients are treated. It is however
apparent that in South Africa a lot of groups of people are treated unfairly based on
their social status or economic status.64

62
1995 (3) SA 391 at paragraph 20.
63
NW Dicket and N E Kass “Understanding Respect: Learning from patients” (2009) available at
http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3110664/ (accessed at 17 June 2016).
64
(Note 23 above) 48.

© University of Pretoria
One of the groups of people which have been treated without dignity or respect due to
their status are the HIV positive patients. The respect of dignity requires that the
patients be treated with empathy. However, in the world that there is a lot of stigma
surrounding the HIV epidemic, the HIV positive patients find themselves being
subjected to human rights violations which include being treated without respect.65

Reproductive health incorporates the choice to decide whether to take contraception,

decisions about fertility and infertility, prenatal care and other choices that may be
taken with regards to sexual and reproductive health.66 In all these instances health
care services must be provided with due regard to dignity. The right to reproductive
health is explicitly provided for in the Constitution of South Africa. It. The inclusion of
reproductive health care has triggered several debates, one of which concerns the fact
that that provision means that women have the choice to decide whether to terminate
pregnancy or not.

The conundrums with regards to the choice of women to terminate pregnancy was
seen in the case of Christian Lawyers Association v Minister of Health.67 In this case
the Constitutional validity of the Choice on Termination of Pregnancy Act,68 a statute
which permits women to terminate pregnancy was challenged. The court dismissed
this case. The case strengthens and supplements the rights that women have with to
regard to their reproductive life.

It is submitted that the protection of the choice to terminate pregnancy by statute does
not automatically guarantee that the women who make this choice will be treated with
respect. Many at times, the women who choose to terminate pregnancy are treated
with less respect and this is a violation of their dignity.69 Dignity in these instances
entail that women should be treated with sympathy and must be advised fully on their
reproductive rights and sexual rights. When it comes to health care it is submitted that

65
(note 23 above) 147.
66
Carsten (Note 17 Above) 250.
67
1998 (4) SA 1113 (T).
68
Act 38 of 2004.
69
Hall KS, Moreau C, Trussel J “Determinants of Disparities in Reproductive Health Services among
Adolescent and Young Adult Women in the USA” (2012) Vol102 No2 America Journal of Public Health
360.

© University of Pretoria
dignity equates to quality of life. When a person’s quality of life is not of standard, it
can therefore be said that his dignity is impaired.

2.3 THE RIGHT TO HEALTH CARE SERVICES AND THE RIGHT TO EQUALITY

Prior 1994 human rights did not enjoy constitutional protection; ensuing equality was
therefore never anyone’s priority. Since the coming into force of the Constitution,
equality and non-discrimination have been prioritised in South Africa and the wold at
large in many facilities. Similarly, in health care sectors, whether public or private
equality must be seen to guide the way in which patients are treated.

The Constitution of South Africa provides for equality,70 and in addition prohibits
discrimination based on the grounds listed therein.71 Despite the efforts by the
legislature to ensue non-discrimination and equality, the health care sector is still seen
to be burdened by inequality and discrimination. In both the private and public health
care sectors status still determines how services and consequently how patients are
treated.

One of the grounds of discrimination listed, in terms of which discrimination is forbidden

is sexual orientation. Gays, lesbians and bisexuals are one of the groups of people
which are at risk of contracting HIV/AIDS and other sexually transmitted diseases.72
Most of health care provides have stigma and homophobia against the gays, lesbians
and bisexuals and hence discriminate against them.73

It is submitted that the stigma and discrimination with which the gays, lesbians and
bisexuals are treated has an adverse or unfavourable effect on their health or their
access to health care services.74 This is because it affects the extent to which they
seek health care services due to fear of being ridiculed or discriminated against. This
will usually limit their access to appropriate health care services.

There are several ways in which their access to health care services may be limited by
non-equality and discrimination. The first way in which non-equality affects access to

70
The Constitution of the Republic of South Africa, Act 108 of 1996, section 9(1).
71
The Constitution of the Republic of South Africa, Act 108 0f 1996, section 9(3).
72
Available www.gaystarnews.com/...11-biggest-hiv-myths-busted (Accessed on 17 June 2016).
73
Available www.cdc.gov/msmhealth/stigma-and-discrimination.htm (Accessed on 17 June 2016).
74
Hassim A (Note 1 Above) 90.

© University of Pretoria
health care services by gays and lesbians is that it prevents them from disclosing
information about their sexual activity which may be used to diagnose or treat them the
second way is that it prevents them from seeking health care because of fear of being
discriminated against.

Another group of people which are affected since they are not treated with equality and
with non-discrimination are the sex workers. Sex workers are at risk too of contracting
HIV and other sexually transmitted diseases. South Africa criminalises commercial sex
work. It is submitted that this has not led to its end but rather to stigma and to unfair
treatment against the sex workers.

South Africa is one of the countries in Africa that criminalises commercial sex work.75
It is submitted that criminalization of sex work has led to more harm than good as it
leads to the sex workers being treated with inequality and stigma. Discrimination
towards the sex workers hinders them from seeking health care and this has an
adverse impact on their health and welfare. Equality in this way plays an important role
in the health sector and in the right to health care.

Gender inequality has also been seen to impact on the access to health care services
by women. Several biological, social and economic reasons explain why women are
vulnerable to contracting sexually transmitted diseases and HIV. Equality between
men and women with regards to their sexual health and determination of sexual
partners would demolish the health burden that exists on women. For women to fully
access the health care services they must the given an opportunity to determine their
reproductive health.

Because that equality has on the right to health care services, it is apparent that
equality must be considered in the rendering of such services. This is one of the ways
in which the Constitutional right to heath may be upheld and protected.

75
Sexual Offences Act 23 of 1957, section 20(1) (a).

The lack of resources to progressively realise the right to health care services and the
continuous depletion of the resources to realise and protect the right to health care
services affects the right to freedom of the patients, the freedom of choice.

Connected to the access to health care is the access to medicines which improve the
quality of life of the patients, treat sicknesses of cure the diseases.76 the development
of health care facilities if not enough to realise the right to health care if people cannot
afford the medicines that will improve their life, treat or cure sicknesses. Accessibility
means both physically available and financially accessible. It is submitted that the fact
that most medicines are not affordable has an adverse impact on the on the right to
freedom of choice of patients.

The non-affordability of medicine and health care facilities at large means that the
patients are not free to choose where to get health care services but rather they are
controlled by how much they can afford. Consequently, on one hand, the rich
population finds itself getting quality health care services from private facilities which
are usually not regulated to accommodate the poor. On the other hand, the poor
population finds itself burdened with health care problems and facilities of poor quality
which are usually free or affordable and under resourced.

The Constitution of South Africa provides that everyone has the right to access to
health care services.77 The wording of the Constitution for example the mention of the
word ‘everyone’ shows an element of equality and freedom. The fact that to a part of
the population, health care services is either affordable and of low quality or of high
quality and expensive affects the freedom that everyone must access the health care
services. It is therefore concluded in this regard that health care and access thereof is
not based on the founding principle of freedom.

76
Berger J.M. ‘Tripping Over Patents: AIDS, Access to Treatment and Manufacturing of Scarcity’ (2002)
Vol 17 No 2 Connecticut Journal of International Law) 157.
77
Constitution of the Republic of South African, Act 108 of 1996, Section 27(1) (a).

In addition to the connection between the right to heath care and other rights, it is an
undeniable fact that the right to health care is closely linked to other human rights. the
socio-economic nature of health care makes it apparent that it can never be separated
from other fundamental rights which necessitate the existence of health care.

Health, it should be noted is based on well-being and welfare of people. Health, due to
this can be classified as an issue that affects everyone and which can be named a
public issue. It should be noted however that traditionally, health care was regarded as
a private issue rather that a public one.78 The position changed however as the
relationship between other fundamental rights was established between the right to
health care and other fundamental rights.

It is submitted that the right to health is connected to the right to sufficient food and
water which are provided for in the Constitution of the South Africa.79 The ability to
access clean water and healthy foods will obviously reduce the burden of health care
issues. These issues, it is submitted, are elevated by the lack of access to clean water
and health foods. Health care issues consequently are a burden to the part of
population which cannot afford both clean water and healthy food.

It is also submitted that the right to heath care is also closely linked to the right to life
which was expounded by the South African Constitutional Court in the case of S v
Makwanyane.80 In addition, the South African Constitution provides that everyone has
the right to life.81 It is submitted that good health means quality life. And the protection
of the right to access health consequently means the protection of the right to life.

2.6 CONCLUSION

The right to access health care services is one of the rights in the Constitution that
cannot be separated from the founding principles of the Constitution and other
fundamental rights. This on its own means that the right to health care is a fundamental

78
Available at https://www1.umn.edu/humanrts/edumat/IHRIP/circle/modules/module14.htm accessed
on 19 June 19, 2016.
79
The Constitution of the Republic of South Africa, Act 108 of 1996, Section 27 (b).
80
1995 (3) SA 391 at paragraph 57.
81
The Constitution of the Republic of South Africa, Act 108 of 1996, Section 11.

© University of Pretoria
right on its own which if violated may also lead to the violation of other fundamental
rights which are protected and justiciable under the Constitution.

CHAPTER 3

THE COMPARATIVE ANALYSIS OF HEALTH CARE SERVICE PROVISION IN

THE PUBLIC SECTOR AND IN THE PRIVATE SECTOR

3.1 INTRODUCTION

In South Africa, health care services are provided by both the state (public sector) and
the private sector. Reading between the lines, one may perceive that the two sectors
exist in parallel.82 Noteworthy, however is that the provision of services by the two
sectors, the composition and the functioning of the two sectors are different. It is
therefore submitted that it is imperative to understand the two sectors as this will help
in determining how the two may be harmonised to ensure the realisation of the right to
access to health care services as provided for by the Constitution of South Africa.

Several factors differentiate the functioning and the composition of the two sectors.
These distinctions have also affected the way in which the right to healthcare services
is interpreted and applied. In addition to this the gap that exists between the two sectors
has also led to controversy, debates and questions as to whether the government of
South Africa is taking all necessary measures to ensure progressive realisation of the
right to access to health care services.

A gap exists between the private health care and the public health care with regards
to affordability, accessibility, and quality. In order to fully recognise the right to access
to health care full, it is imperative to bridge this gap. This work seeks therefore to bridge
the gap that exists between the two sectors. However, it is submitted that before this
is done an analysis of the two sectors be done and the two sectors be compared.

82
Health care in South Africa available at https://en.wikipedia.org/wiki/healthcare_in_South_Africa
(Accessed on 19 June 2016).

The department of health is responsible for ensuring that the right to access to health
care is realised.83 It has a specific responsibility over the public health sector. The
public health care sector accommodates most of the people in South Africa. Its
accommodation of the larger part of the population is necessitated several social and
cultural and economic factors which are imperative to study and analyse.

It has been argued that even though the public health care sector accommodates the
larger part of the population of South Africa at an affordable price, it is less reliable, not
efficient, and not sustainable and usually lacks accountability as compared to the
private health care sector. It should be noted in this regard that public health care
services are usually provided by the government.84 Through national health care
systems. It is submitted that the aim of the public health care is not the making of profit.

3.2.1 AFFFORDABILITY

Before the inception of the Constitution, issues of health were regarded as private
issues. However, when the Constitution came into play in South Africa, health care
also emerged as a socio-economic right. Access to health care, from this time proved
to be justiciable.85 The state then made it a point to take all necessary steps to ensure
the realisation of the right to access to health care. One of the state’s way to ensure
the realisation of this right was to provide health care services at a very affordable price
and sometimes for free.

The provision of affordable health care services is in line with the South African
Constitution which provides that the state must take all necessary steps to ensure
progressive realisation of the socio-economic right.86 It is also in line with the National
Heath Act.87 It is submitted that once commodity is affordable, one may argue that it is
accessible. The fact that a person can afford a health care means that they can easily

83
Available at www.gov.za/about-sa/health Accessed on 20 June 2016.
84
Sanjay B, Andrews J, Kinshore S, Panjabi P & Stuckler D, “Comparative Performance of Private and
Public Healthcare Systems in Low and Middle Income Countries: A Systematic Review” available at
www.ncbi.nlm.nih.gov/pmc/articles/PMC3378609.
85
Mazibuko and Others v The City of Johannesburg High Court of South Africa (Witwatersrand Local
Division) Case No: 06/13865.
86
The Constitution of the Republic of South Africa, Act 108 of 1996, Section 27(2)
87
The National Health Act 61 of 2003.

© University of Pretoria
access it. In South Africa, the issue of affordability has never been an issue as most
of the health care services are free or at a cheap and affordable price.

Even though the South African Public health care sector has no pro problems related
to affordability, several debates have emerged because of this. On one hand, it is
argued that because of it affordability the public health care sector tends to be under
resourced with less professional to serve a greater population.88 On the other hand,
the affordability of the health care services means nothing but progressive realization
of the socio-economic realization if the health care services as provided by the South
African Constitution.

It is submitted that South Africa is burdened by a lot of health issues and affordability
should be accompanied by other factors which would at the end of the day necessitate
the realisation of the access to health care services.

3.2.2 ACCCESSIBILITY

The question that seeks to be answered in this regard is whether the people who are
depended on public health care services can access the facilities. Accessibility
involves the physical proximity of facilities to the people dependent on it, the availability
of emergency health care services and the cost of travelling to the health care facilities.
These factors could all influence the outcome of the service of health care.

In South Africa accessibility, has often been seen as a problem which has in turn led
to problems with outcome of health and the health care seeking behaviour. While the
availability of emergency health care has not been seen to be an issue, geographic
proximity of health care facilities to the people have always been seen to be a factor
affecting the usage of the clinics available. Despite therefore that the public health care
services are said to be available and affordable, it is argued that public health care
services are not accessible as most people dependent on them cannot afford transport
money to get to the health care facilities. In addition to this it has been concluded that
the public health care services are, in most cases overcrowded and this has led to

88
Plaks S & Butler MBJ 'Access to Healthcare in South Africa' (2012) 129 South African Actuarial
Journal, 132.

© University of Pretoria
people having problems with accessing the health care facilities.89 This is evident as
many people make visits to public clinics and hospitals and come back without having
had been attended to due to overcrowding at the facilities.

3.2.3 AVAILABILITY

The public health care sector provides health care services to 70 percent of its
population. This percentage of the population depend entirely on public health care
services.90 The above statistics shows the extent to which the public health care sector
is burdened with issues of health. Furthermore, the public health care sector, due to
the large number of people dependent on it, has been seen to be affected adversely
in terms of availability of resources to care for those people.

Even though since the inception of the Constitution in 1994 the availability of resources
to realise the right to access of health improved, there are still disparities in the public
health care sector of South Africa. Health issues like the HIV/AIDS epidemic,
Tuberculosis and diabetes have burdened the South African health care sector.91
While access to basic health care is a highly desirable goal, it has been difficult to fulfil
this goal because of non-availability of resources.

The public health care sector in South Africa is under-resourced. This is evidenced by
the fact that it has fewer health care providers as compared to the private health care
sector. In addition to that, the public health care sector does not have as much
equipment which is enough to cater for the large number of people dependent on it. In
the case of Soobramoney a man who suffered from heart disease and cerebra-
vascular diseases was denied access to a dialysis program because of severe
shortage of dialysis machines and trained staff.

The case of Soobramoney show to a great extent that the public health care sector is
usually dysfunctional because of its lack of machines, space, sufficient medicine,

89
“Department of health, South Africa, National Health Care Insurance, Health Care for all South
Africans” available at www.doh.gov.za/list,php?type-National-Health-Insurance (accessed on 20 June
2016).
90
Plaks S & Butler MBJ (Note 65 Above) 130.
91
Benatar S ‘The Challenges of Health Disparities in South Africa’ (2013) Vol 103 no. 3 The South
African Medical Journal 90.

© University of Pretoria
infrastructure and trained stuff. As a result of this, the public health care sector has
been regarded as less efficient and less reliable as compared to the private sector.

3.3 THE PRIVATE HEALTH CARE SECTOR

In countries with fast growing economies and growth of the free-market system for
example South Africa, health care has become a marketable commodity.92 In this
regard, health care is now provided by the private health care sector which is based
on profit-making. The private health care sector ensures that it strikes a balance
between the cost of equipment, infrastructure, medicine, well trained practitioners etc.
and the extent to which the services it provides will be affordable.

The private health sector provides services to about 35 percent of South African
population.93 This is relatively a smaller percentage compare to the percentage that is
catered for y the public health care sector. One of the reasons why most people opt
for public health care as opposed to private health care sector is that the private health
care services are more expensive.

Due to the cost of receiving public health care services, the only people who can afford
it are the rich, those who are covered by medical schemes or aid or those who have
medical insurances.94 Because of this the private health care sector is able to manage
its functioning and it is not usually overcrowded of dysfunctional because of lack of
equipment or infrastructure. In addition to this the private health care sector is able in
most of the circumstances to pay its employees. Thus, the private health care sector
is more efficient, reliable and despite its costs it ensures the realisation of the right to
access to health care services as provided by the South African Constitution.

Despite the said efficiency and reliability, the private health care sector is not perfect.
Several factors must be analysed. It is submitted that the analysis of other factors
playing a part in the private health care sector will help in improving the way in which

92
Benatar S (Note 68 above) page 65.
93
Biermann J “South Africa's Health Care under Threat” (2006) 7 available at
http://www.healthpolicyunit.org/downloads/Health_Care_under_Threat.pdf (Accessed on 25 June
2016).
94
Plaks S & Butler MBJ (Note 65 Above) 131.

© University of Pretoria
the sector realises and protects the right to access to health care as provided for by
the Constitution.

3.3.1 AFFORDABILITY

One of the issues that have led to debates which surround the private health care
sector is the affordability. The question that is usually asked is whether the services
under the private health care sector are affordable. Noteworthy in this regard is that
the fact that private health care services are not affordable leads to the problem of
whether there is fairness or equality in the provision of health care services in South
Africa.

A reason for this is while it is praise worthy that the private health care sector provides
quality services, these services come at a price that most South Africans cannot afford.
On the other hand, it is praise worthy that the services that are by the public sector are
affordable, they are usually of low quality.

As stated, private health care sector is influenced by the free-economy which is based
on profit making. As a result of this the private health care services are not affordable
to most if the South Africans.95 As a result of its unaffordability, an inquiry was made y
the Competition Commission in 2016. It was observed that medical inflation runs ahead
of overall inflation. The commission therefore had to investigate whether the kind of
competition conducted by the private health care sector was necessary when it comes
to a basic human right like access to health care services.

As a result of the fact that most people cannot afford the private health care sector, it
is submitted that the private health care services are not available to everyone as
provided for by the South African Constitution. This contention follows from the fact
that if one cannot afford something, they have no access to it.96 To ensure the
realisation if the Constitutional right to health care services by the private health care
sector, the researcher submits that the private health care sector must be regulated.

95
Inquiry into affordability of private health care in South Africa available at
https://www.enca.com/inquiry-affordabilty-private-healthcare-sa (Accessed on 20 June 2016).
96
The Private Health Care Sector and the Constitution: Ensuring Access to Affordable, Quality Health
care for all available at https://pulicintrestlawgathering.wordpress,com/proposed-panels-for-pilg-
2014/the-private-healthcare-sector-the-constitution-ensuring-access-to-affordable-quality-health-care-
for-all/ (Accessed on 24 June 2016).

© University of Pretoria
Regulation of the private health care sector will ensure that it is affordable to most of
the people in South Africa.

3.3.2 ACCESSIBLITY

Even though the non-affordability of the private health care sector attracts a lot of
health care professional who are looking to make money, it clear that it chases most
people to the hands of the public health care sector. Due to the high cost of private
health care services, most people choose not to seek for medical help from the sector.
It is submitted that the choice of people not to make use of the private health care
services is influenced by the non-affordability as opposed to willingly or voluntary.

Accessibility is dependent on affordability and proximity. With regard to accessibility

based on affordability it has been found that the private health care sector only caters
for middle and high income earners who in most cases are part of medical schemes.
Most the people in South Africa and who need the services are not catered for because
they cannot afford. The private health care sector is therefore inequitable and
inaccessible to the large population of South Africa.

While most people in South Africa stay in high-density townships, the private health
care facilities are rarely found in these townships. Most of the private health care are
found in shopping centres which are located far from the townships and high density
suburbs where most the people in South Africa reside. Noteworthy is that the people
in these townships are mostly affected by health affecting factors for example
sanitation issues, poverty and nutrition however this part of the population is
exclusively dependent on public health care services which in most cases are
unreliable and inefficient.97

While it is implausible that the private health care sector provides efficient and reliable
services, the act that it is not accessible because of high costs and proximity present
a barrier to the access to health care as provided or by the South African Constitution.
The obstacles related to private health care sector explains why the South Arica

97
Section 25: Catalyst for Social Justice available at section27.org.za/2016/02/make-private-healthcare-
more-accessible (Accessed on 24 June 2016).

3.4 COMPERATIVE ANALYSIS OF THE PRIVATE HEALTH CARE SECTOR AND

PUBLIC HEALTH CARE SECTOR

From the above analysis, a lot of differences exist between the private health care
sector and the public health care sector. It is submitted that the most fundamental issue
at hand is not differentiating between the two sectors. The pressing issue is whether
the two sectors are doing enough to provide access to health care as provided by the
Constitution. In this regard, it is imperative to explore whether “everyone” is afforded
access to health care service and whether these services are affordable and
accessible.

Reading between the lines of the above comparisons of the two sectors, the division
between the private health care sector and the public health care sector has done more
harm than good. Firstly, it should be noted that even though these divisions exist, the
burden of ensuring health care which is affordable has always been regarded as the
duty of the state or the public health care sector.

Secondly, the division between the two sectors portray, the separation that exist
between the poor and the rich with regards to accessing health care services. This is
evident as the poor population relies on the state for health care services which are of
low quality while the rich part of the population depends on the private health care
sector which provides more sophisticated and more reliable treatment for its
customers.

The public healthcare system continues to deliver services albeit with some
inefficiencies, inadequate quality of care in some facilities and poor infrastructure in
some places. But for those who can pay, the South African private health system is
viewed amongst the top four in the world.98 This shows that access to health care as
a right is not in line with the constitutional value of equality. It is submitted that the

98
Jobson M, “Structure of the Health System in South Africa” (2015) available at
http://www.khulumani.net/ (Accessed on 24 June 2016).

© University of Pretoria
provision of health care services in South Africa is based on the social and economic
status of a person which in the opinion of the researcher shows inequality.

Because the private and public sector discrepancies show inequality, it has over the
years become the project of the state to bridge the gap that exist between these two
sectors. However as already stated the effort by the state to regulate the private sector
has led to court cases brought by the private entities claiming that their rights are
negatively affected by the regulations placed by the public sector. It is therefore
imperative to consider the competing rights that may be affected by the regulation of
the private health sector by the public sector.

3.4.1 Health Care Practitioners’ Right to Occupational Choices.

Pieterse believes many measures aimed at regulating the private sector and thereby
facilitate the equitable access to health care services have an impact on the corporate
profit interests in the private health care sector.99 This follows that regulation of then
private health care sector will have a negative impact on the livelihood of the health
care professional in the health care sector. It has however been argued that the private
interests of these professional are limited in the interest of community services,100 and
restriction on the geographic distribution of health care services.101

It is the researcher’s submission that the limitation of the private interests of

professionals in private health care sector can be justified. This is because, despite
section 22 of the Constitution protecting everyone’s right to choose their occupation or
profession freely, the Constitution allows for some interference or limitation of such
rights if the limitations are regulated by law. Furthermore, in the Affordable Medicines
Trust case,102 where the regulation limiting the circumstances under which the
professionals could dispense medicines was challenged, the court highlighted that it
was not always a perquisite that all limitations to rights require justification in terms of
section 36 of the Constitution.

99
Pieterse (note 15 above) 137.
100
C Heyns “Extended Medical Training and the Constitution: Balancing Civil and Political Rights and Socio‐
economic Rights” (1997) 30 De Jure (1) 5 15 .
101
HCJ Van Rensburg et al “Human Resources for Health and the Health Professionals” in Van Rensburg (Note 32
above) 372.
102
2006 (3) SA 247 (CC).

© University of Pretoria
The Court held that regulations would be said to comply with section 22 of the
Constitution if they were rationally connected to governmental purpose. Measures
aimed bridging the gap between the private and the public health sectors relate to
governmental purposes of ensuring that there is equitable access to health care
services and therefore are justifiable despite their likely to drive private entities out of
business.

3.4.2 Patients’ Right of Access to Health Care Services

Measures to ensure the equitable access to health care services may have an effect
of diminishing the quality or access to the health care services. In this way, the right of
the patients may be affected negatively in the government’s effort to accommodate
everyone. It has been argued, however it is unlikely that one will succeed in showing
that through its regulatory measures to ensure equitable access of the health care
services the state has infringed his right to access health care services.

Case law has however shown that measures directly diminish the right of the patients
to access health care services will not be found valid or Constitutional. In the New
Clicks case, the court held that the pharmaceutical price regulations and control were
unconstitutional as they did not take into consideration the circumstances of rural
pharmacies. It was further held that by failing to consider the interest of the rural
pharmacies, the drafters of the measures placed the business of these pharmacies on
the line and this affected the patient’s rights to access medicines. It therefore follows
that for the measures to ensure equitable access to health care services to be valid
and constitutional, they should not diminish access to health care.

3.5 CONCLUSION

While there has always been reluctance in holding the private sector responsible in
matters that involve human rights and socio-economic rights, it has been recognised
that the private sector, in their involvement in the provision of basic services and other
socio-economic rights assume the responsibility to comply with human rights

© University of Pretoria
standards.103 Therefore in this way the private sector may be supervised and regulated
to bring about equitable access to health care services.

The constitution of South Africa provides for the right to access to health care services
to everyone. While it is praiseworthy that the South African government together with
the private health care sector have taken measures to ensure the protection and the
realisation of this right, major improvements in both sectors are necessary to ensure
that affordable, accessible, and efficient health care services are provided to everyone
in South Africa.

The two different sectors which have one aim i.e. provision of health care services
should work in commonality and this will help bring equitable access to health care
services. In this regard the researcher submits that first, the private health care sector
should be regulated. This will lessen the responsibility of the state and the burden of
the state of dealing with health care issues to the larger population.

It is submitted that the duty to realise the right to health care services is not the duty of
the state alone. The private sector, which has taken the responsibility to provide socio-
economic services, in the same way it seeks to make profit and generate income
should ensure affordability and accessibility. The attainment of harmony and solidarity
between the two sectors providing health care services to South Africans will in the
long run ensure that the right to access to health care is in conformity with
Constitutional values of dignity, equality and freedom

103
S Liebenberg “The Application of Socio‐economic Rights to Private Law” (2008) Tydskrif vir die Suid‐Afrikaanse
Reg 464 471.

THE ROLE OF THE STATE TO ENSURE PROGRESSIVE REALISATION OF THE

RIGHT TO ACCESS TO HEALTH CARE SERVICES

4.1 INTRODUCTION
The South African Constitution provides that the state has the duty to take all
necessary measures and other legislative measure to ensure the realisation of the right
to socio-economic rights therein.104 One of the socio-economic rights provided for in
section 27 of the Constitution is the right to health care. For one to understand and
appreciate the meaning and the implication of section 27(2) of the Constitution which
provides for the state’s duty to ensure progressive realisation, one should understand
what this section entails.

Under international law, several human right instruments also protect the right to
access to health care. For example, the International Covenant on Economic, Social
and Cultural Rights provides that each state party should take steps, within its available
resources to achieve progressively the full realisation of the rights.105 This means that
the states are under a primary obligation to realise, protect and promote human
rights.106

It is submitted that the extent to which South African government is taking measures
to realise the right to access to health care services should be understood against the
availability of resources. It is also submitted that the limitation that justify non-
compliance by the South African government should be studied. Study of these factors
will ensure that improvements are brought to the way that the right to access to health
care services is interpreted.

104
The South African Constitution, section 27 (2) of the South African Constitution of 1996, act 108.
105
Article 2 of the International Covenant on Economic, Social and Cultural Rights .
106
World Health Organisation ‘The Right to Health’ Fact sheet 31.

The South African Constitution provides as follows:107

The state must take reasonable legislative and other measures, within its available
resources, to achieve the progressive realisation of each of these rights.

Several debates have emerged because of this provision of the constitution. The
question has always been whether the state is taking all reasonable measures to
ensure progressive realisation of the socio-economic rights which incorporate the right
to health. For this research the pressing issue is whether the government of South
Africa is doing all it can to ensure progressive realisation of the right to health.

During the certification of the Constitution, there were arguments that the socio-
economic rights for example access to health care services should be incorporated.108
The attempts to hinder the incorporation of socio-economic rights failed. This is evident
as the socio-economic rights are part and parcel of the South African Constitution. The
inclusion of socio-economic rights in the Constitution led to the creation of a society
which is reliant on the socio-economic rights.

The Constitutional Court pointed out that the socio-economic rights enshrined in the
Constitution are legitimate and justiciable, it nonetheless pointed out also that the
incorporation of these rights may have unequivocal financial and budgetary
implications.109 These contradictory statements by the Constitutional Court have
shown the controversy that exist in relation to section 27(2) of the Constitution.

To solve the questions that emerge from this provision, the implications of this provision
and the controversy created by this provision, an analysis of this provisions wording is
imperative.

107
The Constitution of South Africa, Act 108 of 1996, Section 27(2).
108
In re certification of the Constitution of the Republic of South Africa, 1996, 1996 (4) SA 744 (CC).
109
Olivier M, ‘Constitutional Perspectives on the Enforcement of Socio-economic Rights: A Recent
South African Experience’ (2002) Victoria University of Wellington Law Review 96.

Despite the incorporation of the right to health care services in the South African
Constitution and other human rights instruments, it is noteworthy that the justiciability
of this right and the access to health care is always subject to the concept of
‘progressive realisation’110 The concept of progressive realisation raises questions with
regard to the extent to which the state is obliged to realise the right to health care and
whether the society should expect immediate implementation from the state.111

While progressive realisation of rights means the fulfilment of rights and obligations of
the state over time or gradually, it does not mean that the state should use this concept
as an excuse to escape its obligations that are provided for by the Constitution. Due to
ambiguity that is seen in the wording of the Constitution in this regard, the concept of
progressive realisation of the right to access health care is a subject of heated debate.
Courts have tried to address the legal questions that emerge from the concept of
progressive realisation.

The prominent issue of progressive realisation of health care was brought under
severe scrutiny in the notorious yet landmark case of Soobramoney. In this case a one
Mr Soobramoney, who as chronically ill and who needed emergency treatment was
denied thus right. Mr Soobramoney suffered from cerebro-vascular disease and
required dialysis. Dialysis was however denied to him due to limitation of resources
and because he had failed to meet the criteria that would make him eligible for dialysis.

The denial was based on the limitation of resources and on the fact that the right to
access health care is subject to a limitation of the concept of progressive realisation.112
This denial raises a lot of questions about what progressive realisation of the right to
access health care means. It showed the ambiguity that exists in the concept of
progressive realisation.

110
Lomahoza K “Monitoring the Right to Health Care in South Africa: An analysis of the Policy Gaps,
Resource Allocation and Health Outcomes” (2000) available at http://spii.org.za/wp-
content/uploads/2014/02/Policy-brief-2_Monitoring-rights_Healthcare.pdf (Accessed on 26 June 2016).
111
Chenwi L “Unpacking “Progressive Realization” its Relation to Resources, Minimum Core and
Reasonableness and Some Methodological Considerations for Assessing Compliance (2013) Dejure
39”.
112
Progressive Realization and Non-regression available at https://www.escr-
net.org/resources/progressive-realisation-and-non-regression (Accessed on June 27, 2016).

© University of Pretoria
Noteworthy in this regard is that; even though this case was brought by Mr
Soobramone enforcing his Constitutional right to emergency treatment,113 the court
held that this case was to be dealt with under section 27(1) and section 27(2) which
deal with right to access health care services and the states obligation to ensure the
progressive realisation of socio-economic rights within availability of resources,
respectively.

After making the decision to deal with the case in terms of section 27(1) and section
27(2) the court justified the failure by the hospital to provide the dialysis for Mr
Soobramoney. This means that the court, in this regard justified the failure by the state
to protect the right to access health. The court in this case observed that the
Constitution accepts that realisation of rights cannot occur instantly. The court then
accepted that the realisation of socio-economic rights could occur over time.114

Even though the court in the case of Soobramoney made it clear that it accepted the
concept of progressive realisation, the position if the case of Treatment Action
Campaign115 was slightly different. In this case, application was made to the
Constitutional Court to compel the respondents to provide nevirapine to pregnant
women at public health facilities, and to compel the state to produce and implement an
effective national programme to prevent or reduce mother-to-child transmission of HIV.
The applicants therefore sought a declaratory order requiring the state to provide
nevirapine to pregnant women where medically required, and further to roll out a
national mother-to-child transmission programme.

In the case of Treatment Action Campaign, the court concurred with the court in the
case of Soobramoney regarding progressive realisation, it however held that this
should not be used as an excuse or justification not to protect the right of everyone to
health care. In this regard the case of Treatment Action Campaign ensured the
protection of the right access to health care as provided by section 27 (2) of the South

113
The Constitution of the Republic of South Africa, Act 108 of 1996, Section 27(3).
114
Soobramoney v Minister of Health (KwaZulu-Natal) 1997 12 BCLR 1696 (CC).
115
(2002) 5 SA 721 (CC).

© University of Pretoria
African Constitution. The court finally held that the pilot projects set out by the
government were not progressive or purposeful.116

From the analysis of the two cases which have divergent outcomes, while the concept
of progressive realisation serves as a limitation to the right to health care, it should not
be seen as a concept that exculpates the state from taking all necessary measures to
ensure the realisation of the Constitutional right to access to health care.

4.2.2 THE CONCEPT OF AVAILABILITY OF RESOURCES

Another pressing concept involved in the protection of the right to health care is the
concept of availability. In several cases where a person has tried to enforce his or her
socio-economic rights, one of which is access to health care, the contention by the
state has always been that there are no available resources to ensure the realisation
of such rights. Just like the concept of progressive realisation, this concept also raises
questions regarding the state’s obligation to protect the Constitutional right of access
to health care. It is therefore imperative to understand what this concept entails and
when it can be applied.

The concept of availability of resources was also dealt with in the case of
Soobramoney. In this case, the Constitutional Court took into consideration budgetary
consideration. The court pointed out that the obligation of the state should be assessed
against the availability of the resources at the state’s disposal to fulfil its obligations of
protection and realisation of the right to health. In the case of Soobramoney one of the
reasons why the court agreed to the state’s denial of dialysis service to Mr
Soobramoney was the fact the hospital did not have enough resources or machinery
to enable it to provide dialysis to everyone. This is also the reason why the hospital
came up with a criterion to qualify patients for dialysis.

The concept of availability of resources was also dealt with in the case of Treatment
Action Campaign. Again, in this case the court acknowledged the fact that the state
does not always have resources to ensure the realisation of the right to health care

116
Choma H (Note 35 above), 47.

© University of Pretoria
services especially in cases where the service required is expensive. The
Constitutional Court however asserted that the state in fulfilling its obligation regarding
health care it should be reasonable. The court held that with proper planning the state
even though resources are always a problem, can ensure the realisation of the right to
health care services.117

The researcher acknowledges that availability of resources and progressive realisation

serve as valid limitation to the right of access to health care. It is however submitted
that these two concept should not be used as tools to free the state from its obligation
of realisation and protection of the right to health care. It is also submitted that; due to
the fact the right to access health care is closely linked to other fundamental rights the
state should take all necessary steps to ensure that it is protected. A violation of the
right to health will undeniably lead to the violation of other rights like the right to life,
dignity, equality and freedom.

4.3 THE EFFORTS BY SOUTH AFRICAN GOVERNMENT TO REALISE THE RIGHT

TO ACCESS TO HEALTH IN BOTH THE PRIVATE AND PUBLIC SECTORS

After clarifying the concepts of progressive realization and availability of resources,

one question remains. The question seeks to answer the question whether the South
African government is making any efforts to ensure the realisation of the right of access
to health care. The researcher in this regard seeks to assess the efforts taken by
government to ensure the realisation of the right to health care both in the private health
care sector and the public health care sector.

4.3.1 PRIVATE HEALTH CARE SECTOR

The private health care sector in South Africa plays a pivotal role in the realisation of
the right to access to health care. Despite its praiseworthy efforts to provide health
care services, it is submitted that is defending the private health care sector against
unfounded or exaggerated charges by pointing out that it provides care for more people
with fewer resources than its detractors claim is not sufficient.118

117
(2002) 5 SA 721 (CC).
118
Reforming Healthcare in South Africa: What Role for the Private Sector? (2011), available at
http://www.cde.org.za/wpcontent/uploads/2012/12/REFORMING%20HEALTHCARE%20IN%20SA%2
0full%20report.pdf (Accessed on 27 June 2016).

© University of Pretoria
The Government of South Africa has made efforts to ensure that the right to health
care for everyone is realised and protected, even by the private sector. The private
sector is usually unregulated and functions without intervention of the state. It has been
observed that the private sector should work in solidarity with the public sector to serve
the public.119 One of the praise worthy ways in which the government has made efforts
in this regard is by the process of launching the National Health Insurance (NHI).

This is a scheme that seek, as one of its aims to provide for universal healthcare
coverage.120 It seeks to ensure that everyone, regardless of whether they are
employed of not, gets quality health care service at affordable prices from both the
private health care sector and the public health care sector. In this way, the government
works in solidarity with the private sector to ensure that there is equality in the way that
the right to access to health is protected and realised.

Furthermore, the Minister of health has asserted that section 27 of the Constitution
places a duty on him to take all necessary steps ensure progressive realisation of the
right to healthcare. He suggested strongly that the costs and functioning of the private
sector should be placed under rigorous scrutiny. It has been observed that the cost of
private health care services is too high and unreasonable and need to be regulated by
the government to ensure that everyone has access to health care service.121

4.3.2 PUBLIC HEALTH CARE SECTOR

Several efforts have also been seen in the public sector towards realisation of the right
to health care services. Even though the public sector is usually overcrowded and
under-resources, it has managed to achieve several goals which have improved the
quality of health if most South Africans.

One of the goals that the public sector has achieved is attainment of the child health in
South Africa. By ensuring that there are HIV testing sites in the Hospitals the

119
Healthcare in South Africa available at
http://www.southafrica.info/about/health/health.htm#.V3MTvzb6vmI (Accessed on 27 June 2016).
120
Matsosto M P “National Health Insurance: The First 18 Months” (2013) Vol 103 no. 3 p58.
121
Private Healthcare in South Africa Faces Government Intervention available at
http://businesstech.co.za/news/business/116576/private-healthcare-in-south-africa-faces-government-
invervention/ (Accessed on 29 June 2016).

© University of Pretoria
government has ensured that the transmission of the virus from the mother to the child
is reduced. Furthermore, in 2014, the South African government launched a
programme aimed at reducing mother-to-child transmissions of the HIV virus.122 This
means that the life expectancy has increased and child mortality rate due to HIV has
decreased since then.

Another implausible way in which the government has made efforts to realise the right
of access to health care is by the way in which it has dealt with HIV through the
administration of antiretroviral drugs. It has been observed that South Africa has rolled
out the largest antiretroviral program and administers this medication to more than 2
million people. Antiretroviral drugs improve the quality of health and life of people living
with HIV and the ability of the government to provide these drugs tom patients free of
charge in public facilities is a breakthrough.

In addition to this, the government has also made efforts to improve the infrastructure,
the health care facilities and to train the more personnel to ensure proper functioning
of the public health care sector and ensure that the public health care sector also
renders quality health care.

4.4 CONCLUSION

The public health care sector together with the private health care sector have been
seen to take necessary measures to ensure that there is a strong and efficient health
care system in South Africa. It is submitted therefore that due to the imperativeness of
the right to health, more can and should be done to ensure that the right to access to
health care services is interpreted in line with the founding principles Constitution.

It is submitted that the current health care system still lacks conformity with the
principles of equality, freedom and dignity. Therefore, there is need to reform the health
care system so that it can cater for “everyone” as provided by the Constitution.

122
Available at http://www.gov.za/about-sa/health (Accessed on 30 June 2016).

CONLUSIONS AND RECOMMENDATIONS

5.1 CONCLUSIONS

The issue of access to health care obviously presents a conundrum in South Africa.
The researcher has shown that there is a crisis in the South African Healthcare system.
Neither the public health care sector nor the private health care sector meet the
requirement of everyone being afforded the right to access health care services. It is
submitted that the South African health care system should be subjected to scrutiny.

The whole system, public and private, needs well-planned and continuous reform. It is
praiseworthy that in South Africa, there is co-existence of the public health care sector
and the private health care sector. This means that if the two work in commonality,
there could be enormous improvement in the in the way that the right to health care is
realised and protected. It is therefore submitted that the harmonisation of the public
healthcare sector and the private health care sector.

Several problems have been identified in this work. First, it has been o observed that
the right to health care as rendered by the public health care and the private health
care sector is not consistent with the founding principles of the Constitution. This is
evidenced by several loopholes that have been seen in the extent to which the right to
access health care services is protected or afforded.

The first issue that the researcher looked at is the effect of impact of the right to health
care on other rights. It was found in this research firstly that the right to access health
care is inconsistent with the right to dignity. This is shown by the fact that the public
health care sector which caters for more than 80 percent of the population of South
Africa renders services that are of low quality. On the other hand, even though the
private health care sector provides better services, less 20 percent of South Africa’s
population can access the services.

This in other words means that the right to access health care is not fully protected in
South Africa. It is submitted that failure to protect the right to access health care means
that the people of South Africa cannot have good quality of life and then this has an
adverse impact on the right to dignity of most people in South Africa.

© University of Pretoria
The right to equality is also affected by failure to protect the right to access health care.
It was discovered that the right to access health care services which are of quality and
which are reliable are only available to the ones who have means to pay for it. These
are the services that are provided by the private sector. on the other hand, the greater
population of South Africa relies on the Public sector which is usually under sourced
and which provides low quality. This shows that there is inequality in the health care
sector.

The second issue that the researcher considered was the comparative analysis of the
public healthcare sector and the private health care sector. It was discovered that the
two sectors represent two extremes of the health care system of South Africa. It is
submitted that there is need to consider harmonising the two sectors improve the right
to access health care

The third issue that was considered is the efforts by the state to ensure progressive
realisation of the right to access health care services. Before looking at the duty of
obligations of the state, the implications of the concept of progressive realisation and
the availability of resources was considered. It was discovered that the two concepts
are valid limitations to the right to access health care services. It was however strongly
asserted that the two concepts should not be used as excuses to exculpate the state
from its obligations.

The three issues as outlined in the work show to a great extent that there is need to
reconsider the stricture of the South African Heath care system. Contrary to popular
belief that after the inception of then Constitution health care services are accessible
to everyone, it is submitted that quality health care services are only available to the
minority while the majority suffers and lack access to proper health care services.

5.2 RECOMMENDATIONS

It is submitted that one of the reasons why the public sector usually fails is the
assumption that can function, upgrade itself from its resources. The researcher on this
issue recommends that the public health care sector obtain its funds by directly
charging the patients. The amount that should be charged should be affordable and
should be supplemented by the funds allocated to the public health care sector. This

© University of Pretoria
will help the public sector render services which are of quality and which are
sustainable, efficient and reliable.

It is submitted that the despite the good quality of health care services provided by the
private sector, their prices are exaggerated and they keep sky-rocketing each year. On
this issue the researcher recommends that the private health care sector should be
regulated to a certain extent by the state. This would lower the prices and make health
care accessible to everyone not only those who can pay large amounts of money. It is
submitted that the private health care sector should be broadened and should be able
to cater for most people in South Africa.

Both the private healthcare sector and the public health care sector need rehabilitation.
On one hand the private health care sector should be rehabilitated regarding the cost
and prices. On the other hand, the public health care sector should be rehabilitated
regarding the infrastructure. It is submitted that once thus is done, the two sectors will
be able to work in solidarity towards universal access to quality healthcare.

The rehabilitation of the private health care sector and the private health care sector
will bring improvements to the inequality that is seen in the health care system. The
improvement in the health care system will lead to the conformity of health care with
the constitutional values of dignity, equality and freedom.

It is submitted that one of the ways to ensure affordability of the health care services
especially the one provided by the private health care sector is to ensure that the
healthcare us subsidised and everyone who cannot afford can afford. Subsidisation
of the private health care and the private health care will harmonise the public health
care sector and will help them work in solidarity. It should be noted that even if the
two sectors differ in functioning, they have the same goal and they should therefore
work together to achieve the right to access health care.

An important aspect of service delivery is not just availability of facilities or the range
of services available, but also the quality of the care received. Although, health care
services have been made available at some rural areas, there has still been extreme
distress about the quality of the services thereof. These distress range from
shortages of staff, bad staff attitudes, large distances to health facilities and services,

© University of Pretoria
insufficient medication, lack of monitoring and evaluation, patient transport to, but no
limited to, shortage of ambulance.

South Africa’s public health management structure highlights centralisation of powers

and functions in one administrative centre. Thus, the minimal authority and
accountability for facility managers has impacted negatively on service delivery.
There should be redistribution of powers and functions from one administrative
centre to the other. Hence, decision-making powers relating to financial management
and human resources district should be entrusted to district and facility managers.
For purposes of managing the public health facilities, there has not been adequate
skills audit of senior management, training and awareness campaigns to capacitate
health personnel it is submitted also that the health care infrastructure should be
improved.

It is tremendously arduous to provide universal access to quality healthcare in a

highly-unequal society which is at the same time burdened with poverty and disease.
To ensure the access to health care by everyone the state must use its remaining
resources strategically and prudently to expand and reform the two health care
sectors. Reformation of the South African Health care system is imperative therefore
to ensure the realisation of the Constitutional Right to access health care services,

LIST OF BOOKS

1. Carstens P and Pearmain P, Foundational Principles of South African Law,

(Durban: Butterworths Lexis Nexis,2011)

2. Gray, D.E, Doing Research with the Real World, 2nd ed (New York: SAGE
Publishers,2010)
3. Hassim A, et al, Health and Democracy, (Siberlnk: AIDS Law Project, 2007)
4. Kothari C R, Research Methodology Methods and Techniques, 2nd ed, (New
Delhi: New Age international Publisher, 2004)

5. Kirtzinger, L.C. et al, Advanced Communications on Skills for Organisation

Success (New York: SAGE Publishers,2006)
6. Walliman, M., Social research methods. (LONDON: SAGE publishers 2006)

LIST OF ARTICLES

1. Benatar S ‘The Challenges of Health Disparities in South Africa’ (2013) Vol 103
no. 3 The South African Medical Journal

2. Berger J.M. ‘Tripping Over Patents: AIDS, Access to Treatment and Manufacturing
of Scarcity’ (2002) Vol 17 no. 2 Connecticut Journal of International Law)
3. Chapman AR, ‘Core Obligations Related to the Right to Health and Their
Relevance for South Africa, in Brand D & Russell S, Exploring the Core Content
of Socio-Economic Rights: South Africa and International Perspectives’. (2002)
4. Chikte UME, “Health and Human Rights in South Africa, (2009) Vol.64, no1, 2
5. Chenwi L “Unpacking “Progressive Realization” its Relation to Resources,
Minimum Core and Reasonableness and Some Methodological Considerations for
Assessing Compliance (2013) Dejure 39”

© University of Pretoria
6. Choma H, “Constitutional Enforcement of Socio-economic Rights: A South African
Case Study” (2009) Vol6, No 6, US-China Law Review
7. Coomans F, ‘The Ogoni Case Before the African Commission on Human and
Peoples’ Rights’, 52 ICLQ (2003),
8. Fidler DP.’ International Law and Public Health: Materials on and Analysis of
Global Health Jurisprudence’ (2000)
9. Hall KS, Moreau C, Trussel J “Determinants of Disparities in Reproductive Health
Services among Adolescent and Young Adult Women in the USA” (2012) Vol102
No2 America Journal of Public Health

10. Heywood M ‘Current Developments Preventing Mother-to-Child HIV Transmission

in South Africa: Background, Strategies and Outcomes of the Treatment Action
Campaign Case against the Minister of Health (2003) Vol.19 South African Journal
Human Rights
11. Jacobson N, “A Taxonomy of Dignity: A Grounded Theory Study, BMC
International Health and Human Rights”, (2009)
12. Liebenberg S ‘South Africa’s Evolving Jurisprudence on Socio-economic
Rights: An Effective Tool to Challenging Poverty? (2002) Vol.2
13. Lomahoza K “Monitoring the Right to Health Care in South Africa: An analysis of
the Policy Gaps, Resource Allocation and Health Outcomes” (2000)

14. Matsosto M P “National Health Insurance: The First 18 Months” (2013) Vol 103
no. 3
15. Olivier M, ‘Constitutional Perspectives on the Enforcement of Socio-economic
Rights: A Recent South African Experience’ (2002) Victoria University of
Wellington Law Review.
16. Pillay K, ‘Universal access to health care services’ Vol.13 no 1
17. Plaks S & Butler MBJ 'Access to Healthcare in South Africa' (2012) 129 South
African Actuarial Journal,

18. Sanjay B, et al, “Comparative Performance of Private and Public Healthcare

Systems in Low and Middle Income Countries: A Systematic Review” (2012)
19. Walsh K, Kowanko I “Nurses and Patients’ Perceptions of Dignity” (2002) Vol 8 No
3 The International Journal of Nursing Practice

ACTS OF PARLAMENT

1. Constitution of the Republic of South Africa Act 108 of 1996

2. Housing Act 107 of 1997
3. The National Health Care Act of the Republic of South Africa, no 61 of 2003
4. Sexual Offences Act 23 of 1957

LIST OF CASES

1. Christian Lawyer’s Association v Minister of Health 2008 (6) SA 310 SCA

2. Government of the Republic of South Africa v Grootboom 2001 (1) SA 46
3. In re Certification of the Constitution of South Africa 1996 (10) BCLR 1253 (CC)
4. Khosa and Others v the Minister of Social Development and Others CCT 12/03
5. Mazibuko and Others v The City of Johannesburg High Court of South Africa
(Witwatersrand Local Division) Case No: 06/13865
6. Minister of Health v Treatment Action Campaign 2002 (5) 721 (CC)
7. S v Makwanyane 1995 (3) SA 391 (CC)
8. S v Mhlungu 1995 (7) BCLR 793
9. Soobramoney v Minister of Health 1998 (1) SA 765 (CC)

INTERNATIONAL HUMAN RIGHTS TREATIES

1. Convention on the Elimination of All Forms of Discrimination against Women,

1979
2. Convention on the Rights of Persons with Disabilities, 2006
3. Convention on the Rights of the Child, 1989
4. International Convention on the Elimination of All Forms of Racial
Discrimination, 1965
5. International Convention on the Protection of the Rights of All Migrant Workers
and Members of their Families, 1990
6. The International Covenant on Economic, Social and Cultural Rights, 1966
7. Universal Declaration of Human Rights, 1948

1. Additional Protocol to the American Convention on Human Rights in the Area of

Economic, Social and Cultural Rights, known as the Protocol of San Salvador,
1988
2. African Charter on Human and Peoples’ Rights, 1981
3. The American Convention on Human Rights, 1969
4. The European Convention for the Promotion of Human Rights and Fundamental
Freedoms, 1950
5. The European Social Charter, 1961, revised in 1996).

GENERAL COMMENTS AND PRINCIPLES

1. General Comment No.14 (2000) the Right to the Highest Attainable Standard of
Health. UN Committee on Economic, Social and Cultural Rights, 2000.para1
2. Limburg Principles on the Implementation of the International Covenant of
Economic, Social and Cultural Rights Para 21 63-78\
3. World Health Organisation

WEBSITES

1. http://www.healthhistoryinsa.ac.za
2. http://www.GeneralGuidelines for Methodologies on Research and Evaluation
of Traditional Medicine,2000.ac.za
3. http://www.reproductivehealth/MarieStope.SouthAfrica.ac.za
4. http://www.TAC Newsletter ‘TAC Statement on Legal Action Against the
Minister of Health on Mother-to-Child Transmission Prevention of HIV/AIDS
(MTCTP)’ http://www.tac.org.za/newsletter/news_2001.htm
5. http://www.The Declaration of Alma-Ata adopted at the International
Conference on Primary Health Care, USSR. (6-12 September 1978)
6. http://www.ncbi.nih.gov/pmc/articles/PMC1449334/

© University of Pretoria
7. http://www.ohchr.org/EN/ProfessionalInterest/Pages/InternationalLaw.aspx
8. http://www.gov.za/about-sa/health
9. http://businesstech.co.za/news/business/116576/private-healthcare-in-south-
africa-faces-government-invervention
10. http://www.southafrica.info/about/health/health.htm#.V3MTvzb6vmIhttp://www.
cde.org.za/wpcontent/uploads/2012/12/REFORMING%20HEALTHCARE%20I
N%20SA%20full%20report.pdf

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