Authored By: Tania Janan
University of Johannesburg
Introduction
This case summary examines the decision of the Constitutional Court of South Africa in Soobramoney v Minister of Health, KwaZulu-Natal1 and its interpretation of the constitutional right of access to healthcare as a socio-economic right. The judgment considers how the right to life and the right to healthcare services may be limited, and how courts apply a law of general application in doing so. It also examines the relationship between the state, individuals, society’s needs, and limited resources.
Facts of the Case
This case came before the Constitutional Court on appeal from the High Court. The appellant was a 41-year-old unemployed man suffering from diabetes, ischaemic heart disease, cerebrovascular disease and irreversible chronic renal failure. Regular renal dialysis treatment was essential to keep him alive. Hospital policy only admitted patients suffering from acute renal failure — a condition that could be treated and remedied by renal dialysis — to the dialysis programme automatically. Patients like the appellant, who suffered from irreversible chronic renal failure, were not automatically admitted; they had to meet certain requirements, namely eligibility for a kidney transplant.
According to the hospital’s guidelines, a patient had to be free of significant vascular or cardiac disease to qualify for a kidney transplant. The appellant suffered from ischaemic heart disease and cerebrovascular disease and was therefore not eligible.
The appellant relied on section 27(3) and section 11 of the Constitution of the Republic of South Africa, 1996 (the Constitution),2 and brought an urgent application in the Durban and Coast Local Division of the High Court. He sought an order directing the hospital to provide him with ongoing dialysis treatment and interdicting the respondent from refusing him admission to the renal unit. The application was dismissed, and he appealed to the Constitutional Court.
The renal unit had 20 dialysis machines, and some of these machines were in poor condition. The hospital could not provide the appellant with treatment due to the limited facilities and resources available for kidney dialysis.
Legal Issues
The appeal raised two issues: first, whether the state is obliged to provide renal dialysis facilities to everyone suffering from chronic renal failure; and second, whether an individual has a right of access to kidney dialysis even where resources are limited.
Arguments
Appellant
Section 27(3) of the Constitution provides that “no one may be refused emergency medical treatment,” and section 11 provides that “everyone has the right to life.”3 The appellant relied on these provisions, contending that the state was obliged to provide treatment that would prolong his life. He argued that section 27(3) had to be interpreted consistently with the right to life in section 11, and that the state should make funding and resources available to fulfil this obligation. The appellant relied on Paschim Banga Khet Mazdoor Samity and Others v State of West Bengal and Another4 to support his argument on the right to life. In that case, the Indian Supreme Court reiterated the importance of preserving human life and held that government hospitals have a duty to provide medical assistance for the preservation of human life, and that a failure to do so constitutes a violation of the right to life guaranteed under Article 21 of the Indian Constitution.5 The appellant argued that the state could make additional funds available to provide life-saving treatment to patients suffering from chronic renal failure, and suggested better use of the dialysis machines, such as keeping the unit open for longer hours.
Respondent
The respondent, the Minister of Health, argued that the hospital was unable to provide the appellant with the treatment he needed because of the limited facilities available for kidney dialysis. The Department of Health contended that it had overspent its budget by R152 million in the 1996–1997 financial year.6 Dr Naicker argued that only patients suffering from acute renal failure — which could be remedied by renal dialysis — were given automatic access to the renal dialysis programme, and that the appellant, suffering from ischaemic heart disease and cerebrovascular disease, was not eligible for a kidney transplant.
The respondent contended that using the dialysis machines in accordance with the guidelines would benefit more patients than using them to sustain persons with chronic renal failure, since this outcome would be directed towards curing patients rather than maintaining them in a chronically ill condition. Dr Naicker further contended that admitting the appellant to the programme outside the guidelines would put patients who complied with those guidelines at risk. The respondent also argued that keeping the unit open for longer hours would create additional expense and place further strain on dialysis machines that were already showing signs of wear.
Court’s Reasoning and Analysis
Chaskalson P held that section 27(3) of the Constitution protects a right not to be refused “emergency” treatment: it requires that necessary and available remedial treatment be given immediately to prevent harm. The appellant suffered from chronic renal failure and required dialysis treatment at least three times a week to stay alive. The Court concluded that this was not an emergency requiring remedial treatment, but an ongoing state of affairs resulting from a deterioration of the appellant’s renal function that was incurable. Section 27(3) therefore did not apply to these facts, and the appellant’s reliance on Paschim Banga Khet Mazdoor Samity was misplaced:7 unlike the appellant, the patient in that Indian case had suffered a sudden injury requiring immediate medical attention. The Court noted that a person in a similar emergency should not be refused ambulance or other emergency services where these are available.
The Court held that the appellant’s claim had to be determined under section 27(1) and (2), rather than section 27(3). These provisions guarantee the right to healthcare services provided by the state “within its available resources.” The renal unit served the whole of KwaZulu-Natal, including patients from parts of the Eastern Cape, and there were more patients suffering from chronic renal failure than there were dialysis machines available to treat them: the unit’s machines could accommodate no more than 60 patients, yet were being used to treat 85. In response to the appellant’s suggestion that the unit extend its hours, the Court reasoned that the cost of providing dialysis three times a week to every patient in the appellant’s position would place an unsustainable burden on the healthcare budget.
The Court also considered Continuing Ambulatory Peritoneal Dialysis (CAPD) as an alternative, but found that only patients who were candidates for a kidney transplant were placed on CAPD. As the appellant was not a transplant candidate, he did not meet the criteria for CAPD either. The Court held that neither form of treatment constituted emergency treatment, and neither was accessible to the appellant, since both were subject to eligibility criteria he did not meet.
The central question for the Court was whether everyone has a right of access to dialysis machines even where resources are scarce. The Court held that the Constitution requires the state to take reasonable measures, within its available resources, to achieve the “progressive realisation” of the rights in the Bill of Rights — a formulation that recognises the Constitution’s inability to resolve all of society’s problems overnight. Accordingly, the respondent was not unreasonable in refusing the appellant access to treatment for which he did not meet the criteria. The Court suggested that a public health campaign to educate citizens on the causes of renal failure, including dietary measures, could help improve life expectancy in the longer term. Ultimately, the Court held that the right to life cannot be extended to encompass an indefinite right to evade death: dying is part of life, and the state’s resources are limited in ways that are beyond its control.8
Judgment and Ratio Decidendi
The right of access to healthcare is not absolute; it depends on the availability of resources. The appellant failed to prove that the state’s failure to provide renal dialysis treatment to persons suffering from chronic renal failure breached its constitutional obligations. The appellant was therefore not entitled to the relief sought, and his appeal against the High Court’s decision was dismissed.
Critical Analysis
Soobramoney established that socio-economic rights are subject to available resources, and that the rights in the Bill of Rights are not absolute. Section 36 of the Constitution provides that rights may be limited by a law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity and equality.9 The issue in this case was whether the appellant’s rights to healthcare and to life were lawfully limited. South Africa is a developing country facing significant financial constraints, and the phrases “within its available resources” and “progressive realisation” indicate that the state may have insufficient funds, and that the realisation of socio-economic rights is achieved over time.
The case is comparable to Government of the Republic of South Africa and Others v Irene Grootboom and Others.10 In that case, a group of people who had unlawfully occupied private land were evicted and left without shelter. They applied to the Constitutional Court for urgent relief, seeking temporary housing in terms of the constitutional right of access to adequate housing. The Court found that section 26(2) requires the state to realise this right progressively and within its available resources, and that section 26 does not entitle individuals to claim shelter immediately. The state had acknowledged its obligation but argued that it was not required to go beyond its available resources to provide housing immediately.
It can be argued that the right to life is the most fundamental of all rights and must be treated with the utmost care. In S v Makwanyane and Another,11 decided under the Interim Constitution of 1993, the right to life was described as “the most fundamental of all rights.”12 The Court held that the death penalty constituted cruel, inhuman or degrading punishment and declared it unconstitutional, holding further that the state bears a duty to adopt measures to safeguard human life from violation by others. Makwanyane is, however, distinguishable from Soobramoney: in Makwanyane, the Court was able to protect the right to life by declaring the death penalty unconstitutional, whereas in Soobramoney the state was unable to protect the appellant’s right to life because of a genuine scarcity of resources — a circumstance beyond its control.
In Makwanyane, counsel for the Attorney-General argued that the rights to life and dignity are not absolute and are, like all rights, subject to limitation.13 Fanyana ka Mdumbe (1998) argues that, under the rules governing the limitation of rights, the burden of disproving the availability of funds rests with the state.14 In Soobramoney, the state successfully demonstrated that limited financial resources restricted its ability to provide healthcare services, and section 27(2) supports the conclusion that this limitation was reasonable and justifiable in a democratic society. It could not have been the legislature’s intention to require the state to provide medical treatment where resources are simply unavailable; on this reasoning, it would be unjustifiable to disadvantage patients who can be cured by renal dialysis merely to prolong the life of another patient.
Conclusion
The Soobramoney decision brought about a significant development in South African constitutional law. The Constitutional Court confirmed that socio-economic rights are subject to available resources, and that the state is not obliged to provide life-saving treatment where those resources are genuinely limited. It remains in the interest of individuals engaging with these principles to understand that, while the state bears real obligations under the Bill of Rights, those obligations are not unlimited, and their progressive realisation is constrained by the resources the state actually has available.
Endnote(S):
1. Soobramoney v Minister of Health, KwaZulu-Natal 1998 (1) SA 765 (CC).
2. Constitution of the Republic of South Africa, 1996, ss 27(3) and 11.
3. Constitution of the Republic of South Africa, 1996, ss 27(3) and 11.
4. Paschim Banga Khet Mazdoor Samity and Others v State of West Bengal and Another AIR 1996 SC 2426.
5. V D Mahajan Constitutional Law of India 7 ed (Eastern Book Co, Lucknow, 1991) 230; B L Hansaria Right to Life and Liberty under the Constitution: A Critical Analysis of Article 21 (N M Tripathi, Bombay, 1993) 24.
6. Figure as supplied by the author — please verify against the reported judgment before publication (see accompanying analysis report).
7. Paschim Banga Khet Mazdoor Samity and Others v State of West Bengal and Another AIR 1996 SC 2426.
8. Attribution as supplied by the author — please verify against the reported judgment before publication (see accompanying analysis report).
9. Constitution of the Republic of South Africa, 1996, s 36.
10. Government of the Republic of South Africa and Others v Irene Grootboom and Others 2000 (11) BCLR 1169 (CC).
11. S v Makwanyane and Another (CCT3/94) [1995] ZACC 3.
12. S v Makwanyane and Another (CCT3/94) [1995] ZACC 3, para 144.
13. S v Makwanyane and Another (CCT3/94) [1995] ZACC 3, para 137.
14. Fanyana ka Mdumbe “Socio-economic Rights: Van Biljon v Soobramoney” (1998) — full journal citation to be confirmed by author.
Reference(S): List
Cases
Government of the Republic of South Africa and Others v Irene Grootboom and Others 2000 (11) BCLR 1169 (CC)
Paschim Banga Khet Mazdoor Samity and Others v State of West Bengal and Another AIR 1996 SC 2426
S v Makwanyane and Another (CCT3/94) [1995] ZACC 3
Soobramoney v Minister of Health, KwaZulu-Natal 1998 (1) SA 765 (CC)
Legislation
Constitution of the Republic of South Africa, 1996
Journal Articles
Fanyana ka Mdumbe “Socio-economic Rights: Van Biljon v Soobramoney” (1998) — full citation to be confirmed by author
Books
V D Mahajan Constitutional Law of India 7 ed (Eastern Book Co, Lucknow, 1991) 230
B L Hansaria Right to Life and Liberty under the Constitution: A Critical Analysis of Article 21 (N M Tripathi, Bombay, 1993) 24
