FUR2601
Assignment 1
Semester 1
Due 27 March 2026
, QUESTION 1
The Gauteng Department of Health’s decision to reduce treatment for AIDS patients
who are non-citizens raises a constitutional issue concerning the right to healthcare.
Section 27(1)(a) of the Constitution of the Republic of South Africa, 1996 guarantees
that everyone has the right to have access to healthcare services. Section 27(2) further
requires the state to take reasonable measures within its available resources to achieve
the progressive realization of this right.
In Minister of Health v Treatment Action Campaign (TAC) 2002 (5) SA 721 (CC), the
Constitutional Court held that the government is obliged to take reasonable steps to
provide access to essential medicines, including for the prevention of mother-to-child
transmission of HIV, and that resource constraints do not justify failing to take
reasonable measures. The Court emphasized that the limitation of rights must be
reasonable, and policies cannot arbitrarily discriminate against groups without proper
justification.
In this scenario, the Department’s action targets non-citizens solely based on
nationality. While Section 27(2) allows consideration of available resources, the
measure must still meet the criteria of reasonableness and non-discrimination. Blanket
exclusion based on citizenship is likely unconstitutional because it constitutes unfair
discrimination under Section 9(3) of the Constitution, which prohibits unfair
discrimination on the basis of nationality. Limiting treatment solely due to nationality,
without considering individual circumstances or other less restrictive options, would fail
the test of proportionality and reasonableness outlined in TAC and Government of the
Republic of South Africa v Grootboom 2001 (1) SA 46 (CC), which stresses that the
state must plan and implement policies to progressively realize socio-economic rights
without arbitrary exclusions.
Therefore, the decision is unconstitutional as it unfairly discriminates against non-
citizens and does not represent a reasonable, proportional response to resource
constraints. Alternative measures, such as prioritizing treatment based on medical
urgency rather than nationality, would be constitutionally acceptable.
Assignment 1
Semester 1
Due 27 March 2026
, QUESTION 1
The Gauteng Department of Health’s decision to reduce treatment for AIDS patients
who are non-citizens raises a constitutional issue concerning the right to healthcare.
Section 27(1)(a) of the Constitution of the Republic of South Africa, 1996 guarantees
that everyone has the right to have access to healthcare services. Section 27(2) further
requires the state to take reasonable measures within its available resources to achieve
the progressive realization of this right.
In Minister of Health v Treatment Action Campaign (TAC) 2002 (5) SA 721 (CC), the
Constitutional Court held that the government is obliged to take reasonable steps to
provide access to essential medicines, including for the prevention of mother-to-child
transmission of HIV, and that resource constraints do not justify failing to take
reasonable measures. The Court emphasized that the limitation of rights must be
reasonable, and policies cannot arbitrarily discriminate against groups without proper
justification.
In this scenario, the Department’s action targets non-citizens solely based on
nationality. While Section 27(2) allows consideration of available resources, the
measure must still meet the criteria of reasonableness and non-discrimination. Blanket
exclusion based on citizenship is likely unconstitutional because it constitutes unfair
discrimination under Section 9(3) of the Constitution, which prohibits unfair
discrimination on the basis of nationality. Limiting treatment solely due to nationality,
without considering individual circumstances or other less restrictive options, would fail
the test of proportionality and reasonableness outlined in TAC and Government of the
Republic of South Africa v Grootboom 2001 (1) SA 46 (CC), which stresses that the
state must plan and implement policies to progressively realize socio-economic rights
without arbitrary exclusions.
Therefore, the decision is unconstitutional as it unfairly discriminates against non-
citizens and does not represent a reasonable, proportional response to resource
constraints. Alternative measures, such as prioritizing treatment based on medical
urgency rather than nationality, would be constitutionally acceptable.
