FUR2601
ASSIGNMENT 1
DUE DATE: 27 MARCH 2026
,FUR2601 ASSIGNMENT 1 2026
DUE: 27 MARCH 2026
Is the decision by the Gauteng Department of Health to reduce
treatment given to non-citizen AIDS patients constitutional?
The Gauteng Department of Health has decided to reduce the treatment
provided to AIDS patients who are non-citizens because of a shortage of
funds and an inability to meet demand. This decision raises an important
constitutional question: whether the state may limit access to healthcare
services based on citizenship. The Constitution of the Republic of South
Africa, 1996, is the supreme law and binds all organs of state. Any conduct
by the state that is inconsistent with the Constitution is invalid. This answer
argues that the decision is unconstitutional, as it violates the rights to
healthcare, equality and human dignity, and cannot be justified under the
limitation clause, when viewed in light of relevant Constitutional Court case
law.
Application of the Bill of Rights
, The Bill of Rights applies vertically to the state in terms of section 8(1) of
the Constitution. The Gauteng Department of Health is an organ of state
and is therefore directly bound by the Bill of Rights. The beneficiaries of
most rights in the Bill of Rights are described as “everyone”, which includes
citizens and non-citizens alike, regardless of their legal status.
The Constitutional Court has repeatedly confirmed that fundamental rights
are not reserved only for South African citizens unless the Constitution
expressly states so. Healthcare rights fall within the category of universal
rights, which accrue to all people within South Africa’s territory.
The Right to Access Healthcare Services (Section 27)
Section 27(1)(a) of the Constitution provides that everyone has the right to
have access to healthcare services. Section 27(2) places a duty on the
state to take reasonable legislative and other measures, within its available
resources, to achieve the progressive realisation of this right.
In Soobramoney v Minister of Health (KwaZulu-Natal), the Constitutional
Court acknowledged that the state operates under limited resources and
that difficult decisions regarding allocation of healthcare resources must
sometimes be made. However, the Court emphasised that such decisions
must be reasonable, non-arbitrary and consistent with constitutional values.
ASSIGNMENT 1
DUE DATE: 27 MARCH 2026
,FUR2601 ASSIGNMENT 1 2026
DUE: 27 MARCH 2026
Is the decision by the Gauteng Department of Health to reduce
treatment given to non-citizen AIDS patients constitutional?
The Gauteng Department of Health has decided to reduce the treatment
provided to AIDS patients who are non-citizens because of a shortage of
funds and an inability to meet demand. This decision raises an important
constitutional question: whether the state may limit access to healthcare
services based on citizenship. The Constitution of the Republic of South
Africa, 1996, is the supreme law and binds all organs of state. Any conduct
by the state that is inconsistent with the Constitution is invalid. This answer
argues that the decision is unconstitutional, as it violates the rights to
healthcare, equality and human dignity, and cannot be justified under the
limitation clause, when viewed in light of relevant Constitutional Court case
law.
Application of the Bill of Rights
, The Bill of Rights applies vertically to the state in terms of section 8(1) of
the Constitution. The Gauteng Department of Health is an organ of state
and is therefore directly bound by the Bill of Rights. The beneficiaries of
most rights in the Bill of Rights are described as “everyone”, which includes
citizens and non-citizens alike, regardless of their legal status.
The Constitutional Court has repeatedly confirmed that fundamental rights
are not reserved only for South African citizens unless the Constitution
expressly states so. Healthcare rights fall within the category of universal
rights, which accrue to all people within South Africa’s territory.
The Right to Access Healthcare Services (Section 27)
Section 27(1)(a) of the Constitution provides that everyone has the right to
have access to healthcare services. Section 27(2) places a duty on the
state to take reasonable legislative and other measures, within its available
resources, to achieve the progressive realisation of this right.
In Soobramoney v Minister of Health (KwaZulu-Natal), the Constitutional
Court acknowledged that the state operates under limited resources and
that difficult decisions regarding allocation of healthcare resources must
sometimes be made. However, the Court emphasised that such decisions
must be reasonable, non-arbitrary and consistent with constitutional values.
