ASSIGNMENT 1 SEMESTER 1 2026
UNIQUE NO.
DUE DATE: 27 MARCH 2026
, Fundamental Rights - FUR2601
QUESTION 1
Is the decision of the Gauteng Department of Health constitutional?
1. The Constitutional Framework
The issue concerns whether the decision to reduce treatment for non-citizen AIDS
patients is consistent with the Constitution of the Republic of South Africa, 1996.
The relevant rights are:
Section 27(1)(a) – Everyone has the right to have access to health care
services.
Section 27(2) – The state must take reasonable legislative and other measures,
within available resources, to achieve the progressive realisation of this right.
Section 9(3) – The right to equality and protection against unfair discrimination.
Section 36 – The general limitations clause.
Importantly, section 27 refers to “everyone”, not only citizens. This is constitutionally
significant.
2. Socio-Economic Rights and Reasonableness
In Soobramoney v Minister of Health (KwaZulu-Natal), the Constitutional Court held
that access to health care may be limited by resource constraints. The Court accepted
that scarce medical resources may justify restrictions if the policy is rational and applied
fairly.
However, later jurisprudence refined this approach.