In a decisive move, the judiciary reaffirmed its role in safeguarding constitutional rights. The Gauteng Local Division of the High Court in Johannesburg recently issued an urgent interim relief order against the Gauteng Department of Health (GDoH) in a case of right to health enforcement.
This order followed the case of Cancer Alliance vs Member of Executive Council for Health, Gauteng Province and Others. It mandated the GDoH to immediately formulate and implement a plan addressing the growing backlog in radiation oncology services at two key hospitals.
This ruling is not merely a legal decision. Instead, it stands as a stark reminder of the critical intersection between public administration, budgetary allocation and the fundamental right to healthcare. The steep consequences of government inaction could no longer be ignored.
Failure to act – the consequences of neglected funding
The heart of the issue lies in the GDoH’s failure to utilise allocated funds effectively. In March 2023, the Gauteng Provincial Treasury earmarked R784 million to bolster surgical and radiation oncology services. Of this, a significant R250 million was specifically designated for outsourcing radiation oncology.
Shockingly, the department did not use these designated outsourcing funds. Eventually, it returned them to the Treasury at the end of the fiscal year. This glaring inaction became the focal point for Cancer Alliance, a collective of non-profit organisations and advocates.
Cancer Alliance brought the matter to court, arguing that the GDoH’s dereliction not only squandered allocated resources but also directly violated several constitutional provisions. This case shows vividly the costs tied to failing to act.
Constitutional mandates and the fallout of administrative neglect
The case brought to the forefront several critical constitutional sections that define the state’s responsibilities to its citizens.
Section 7(2) mandates the state to protect and fulfil the rights enshrined in the Bill of Rights. Section 27 assures everyone the right to access healthcare services. Additionally, the argument rested on section 33, which ensures just administrative action, and section 195(1), which outlines principles for efficient public administration, including the prudent use of resources.
Cancer Alliance contended that the GDoH’s inaction breached all these sections, precipitating a severe crisis in cancer care. Once again, the severe repercussions of bureaucratic inaction came into sharp focus.
The human toll – when delay becomes deadly
The court’s judgment was forceful and unambiguous. It recognised the urgent need for intervention.
The court noted the grave circumstances where patients were “deprived of radiation oncological treatment for so long that repeated surgeries and repeated chemotherapy virtually became routine and early death at times became inevitable“. This observation underscored the devastating real-world impact of administrative delays and bureaucratic missteps.
The judge found that the GDoH unjustifiably ignored patients’ right to receive outsourced radiation oncology, especially when funds had been specifically allocated for that purpose. Furthermore, the GDoH sidestepped attempts by Cancer Alliance to engage in discussions about the tender process and to follow established regulatory procedures.
This lack of engagement constituted a direct violation of section 195 of the Constitution, which emphasises accountability and transparency in public administration. This case highlights once again the fatal consequences of inertia.
Accountability deficit – ignoring the public’s right
Van Nieuwenhuizen AJ, who presided over the case, was particularly critical of the GDoH’s lack of accountability. He highlighted the failure to maintain professional ethics, promote efficient use of resources, provide services impartially and respond adequately to patients’ needs.
The court stressed the gravity of the situation, noting that patients on the backlog list faced life-threatening illnesses. Without timely treatment, their health would inevitably deteriorate, potentially leading to premature deaths. This scenario constituted actual and ongoing irreparable harm, demanding immediate action.
The GDoH’s argument that these issues would be addressed in a future review application was dismissed as “insensitive and dismissive” of the patients’ suffering. The verdict shines a harsh light on the price of neglect. Ultimately, the court held that a “compelling need” existed to hold the GDoH accountable.
The court found that officials within the department acted independently, failing to recognise their obligation to the public interest. To rectify this, the court issued a supervisory interdict, effectively forcing the GDoH to take concrete steps.
Within 45 days, the department had to update the backlog list of cancer patients awaiting radiation oncology. It was also mandated to take all necessary actions to provide these services at Charlotte Maxeke Johannesburg Academic Hospital and Steve Biko Academic Hospital.
Finally, the GDoH must submit a report within three months detailing the steps taken and outlining a long-term plan for providing radiation oncology services. This legal order stands as a clear response to the dangers of governmental inaction.
Lessons learned
This ruling has far-reaching implications. Firstly, it reinforces the state’s undeniable constitutional obligation to provide access to healthcare. The judgment clarifies that merely allocating funds is insufficient. Instead, the state must actively ensure those funds deliver essential services.
Secondly, it sheds light on the critical importance of accountability and transparency in public administration. The court’s findings underscore that delays and inefficiencies in processes like tendering can have life-or-death consequences.
Lastly, the use of a supervisory interdict sets a precedent for future cases. It empowers courts to intervene when government entities fail to fulfil their constitutional duties. This tool ensures compliance and safeguards citizens’ rights, emphasising that the devastating effects of delay and inertia must be prevented.
In conclusion
The Cancer Alliance case represents more than just a legal victory. It serves as a powerful reminder of the human element in public service. It reasserts the vital role of the judiciary in ensuring that the state meets its constitutional obligations, particularly in areas as fundamental as healthcare.
The case stands as a crucial checkpoint for how public resources are managed. Above all, it highlights that delay and failure to act carry a cost, often a human one.
The judgment underscores that administrative functions must be carried out with ethical integrity, transparency, and a steadfast commitment to the public’s needs. The severe consequences of inaction and delay simply cannot be ignored.
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| Slade van Rooyen | Associate | mail me | |  |
| Farah Yassin | Candidate Attorney | mail me | |  |
| | Werksmans Attorneys | | |
