Authored By: Hitekani Success Sithole
Tshwane University Of Technology (TUT)
INTRODUCTION
Healthcare is widely recognized as a fundamental human right. However, for international migrants, the ability to access this right is often determined by immigration status. This legal distinction has direct consequences for health outcomes and access to services.
In South Africa, the Constitution guarantees the right to healthcare to “everyone,” not only citizens. Yet in practice, documented and undocumented migrants experience very different levels of access. Policy uncertainty, fear of data sharing with law enforcement, and administrative barriers continue to discourage many migrants from seeking medical care. Recent court decisions have begun to test the limits of these exclusions and whether they comply with constitutional and international human rights obligations. This raises a critical legal question: can a healthcare system that provides full access to documented migrants while imposing severe restrictions on undocumented migrants meet constitutional and human rights standards? Or does it reflect a systemic failure to protect the right to health for all people within South Africa’s borders, regardless of legal status? 1
2.MAIN BODY
(A) LEGAL FRAMEWORK
In South Africa, Section 27(1)(a) of the Constitution provides that “everyone has the right to have access to health care services”, and Section 27(3) prohibits the refusal of emergency medical treatment to anyone. The use of “everyone” suggests that this right extends to both citizens and non-citizens, documented and undocumented alike. Despite this, migrants continue to experience a two-tier system in practice. Administrative barriers, lack of clarity in policy, and fear of interaction with authorities often prevent undocumented migrants from accessing care, while documented migrants face fewer obstacles.
(B)Non-Citizens and Socio-Economic Right
Khosa v Minister of Social Development; Mahlaule v Minister of Social Development is the central precedent on the position of documented migrants. The Constitutional Court held that the word ‘everyone’ in the socio – economic rights provisions includes permanent residents and not only citizens, and that excluding permanent residents from social assistance was unconstitutional discrimination on the ground of citizenship. The Court accepted, however, that undocumented migrants and temporary residents could permissibly be treated differently, a qualification that has never been fully worked out in subsequent jurisprudence.
Lawyers for Human Rights v Minister of Home Affairs confirmed that even undocumented persons and foreigners at ports of entry are protected by the Bill of Rights, reinforcing that ‘everyone’ attracts baseline constitutional protection irrespective of documentation.
Union of Refugee Women v Director: Private Security Industry Regulatory Authority addressed the permissible limits of differential treatment of refugees relative to citizens in the regulation of the private security industry, and remains instructive on the standard of justification required for status- based differentiation.
(c) JUDICIAL INTERPRETATION
Asylum-seekers and refugees do have a legal right to health services and emergency treatment. In practice, however, hospital staff often demand valid permits and up-to-date documentation before admitting patients. As a result, many migrants, particularly those without documentation, are denied access to care. Another barrier cited by the state is “progressive realization” the argument that resources are not yet sufficient to fully meet constitutional health obligations. This leaves healthcare workers in a difficult position, forced to turn away patients, including those with life-threatening conditions. In the case of Soobramoney V Minister of Health, KwaZulu-Natal 1998 (1) SA 765 (CC)2 is the landmark judgment as it was the first case in South Africa which dealt with the socio-economic rights of an individual. This case paved a path for further discussion on this matter. Soobramoney, an Indian origin South African was denied dialysis treatment in a public hospital because of restrictive guidelines by the hospital. This case has extensively discussed the scope of Section 27 of the Constitution of South Africa which is right to access to health care services. The research paper tries to analyse the judgment of the Court. It is delivered by 10 judges of the Constitutional Court of South Africa where majority judgment was written by Justice Chaskalson, whereas Justice Madala and Justice Sachs had given the concurring judgment.
Statutory Framework
Section 4 of the National Health Act 61 of 2003 provides the primary statutory basis for free healthcare for pregnant and lactating women and children under six, without a nationality qualification, unless the Minister prescribes otherwise.
The Refugees Act 130 of 1998 formally entitles refugees to the same basic healthcare services and primary education as South African citizens, though it does not expressly extend this to undocumented migrants.
The National Health Insurance Act 20 of 2023 (now in force) departs from this position for two categories: clause 4 confines asylum seekers and undocumented migrants (‘illegal foreigners’) to emergency medical services and services for notifiable conditions of public health concern, while citizens, permanent residents and refugees receive full NHI Fund coverage; children of asylum seekers and undocumented migrants retain access to basic healthcare services.
Because chronic conditions such as HIV are not classified as ‘notifiable conditions’ in the applicable sense, commentators have warned that the NHI Act as currently framed would exclude asylum seekers and undocumented migrants from routine antiretroviral treatment obtained outside an emergency, notwithstanding the Health Minister’s public opposition to that outcome.
(D) CRITICAL ANALYSIS
(i)STRENGTH
Strong constitutional text: section 27 uses ‘everyone’ rather than ‘citizens’, and section 27(3) creates an unqualified bar on refusing emergency treatment, giving litigants a firm textual anchor irrespective of migration status.
A coherent doctrinal architecture: the Grootboom reasonableness test, refined through Treatment Action Campaign and Khosa, gives courts a workable and consistent tool for assessing whether excluding a category of persons from a public service is constitutionally justified.
Consistent judicial willingness to act: Khosa, the 2023 Charlotte Maxeke order and the December 2025 Treatment Action Campaign judgment show courts repeatedly favouring access over exclusion, including where the obstruction arises from organised community or vigilante resistance rather than formal government policy.
Existing statutory backing: the National Health Act and the Refugees Act give the constitutional principle legislative teeth, particularly for refugees and for the maternal and child health category.
(ii)WEAKNESSES
Khosa’s acknowledgment that differentiation against undocumented migrants may sometimes be permissible was obiter to its central holding on permanent residents, and the precise constitutional floor for undocumented migrants has never been authoritatively defined by the Constitutional Court leaving that boundary to be set by Parliament through the National Health Insurance Act rather than by judicial reasoning, a weak foundation for a rights-sensitive line.
A persistent implementation gap: the 2023 order and the December 2025 judgment address materially the same underlying problem recurring at the same facilities, indicating that litigation is succeeding in principle but not translating reliably into compliance on the ground, as the March 2026 contempt proceedings demonstrate.
The entire body of case law specific to undocumented migrants and healthcare currently rests on unreported High Court orders from Gauteng rather than Constitutional Court authority, leaving it vulnerable to being distinguished, limited to its facts, or reconsidered on appeal.
The National Health Insurance Act 2023 formally narrows access for asylum seekers and undocumented migrants to emergency and notifiable-condition care, cutting against the trajectory of the National Health Act and the 2023 court order, and creating an unresolved statutory conflict that has not yet been tested before the Constitutional Court.
(iii)GAPS
No decided case squarely tests the constitutionality of the National Health Insurance Act’s exclusion of asylum seekers and undocumented migrants from comprehensive coverage; existing commentary is predictive rather than adjudicative. Asylum seekers and undocumented migrants are frequently conflated in both legislation and case law, despite asylum seekers holding a distinct and protected status under international law; this conflation has not been squarely tested as a section 9 equality question.
There is limited judicial guidance on chronic, non-maternal and non- emergency care (for example HIV and TB management outside an outbreak framing, mental healthcare, and dialysis-type scenarios ofthe kind considered in Soobramoney) for undocumented migrants specifically; the case law clusters heavily around maternal and child health and emergency care.
The empirical and enforcement literature remains thin: existing scholarship documents policy exclusion and litigation outcomes well but offers limited facility-level compliance data, weakening claims about whether litigation is, in practice, an effective remedy compared with administrative or regulatory reform.
The state’s positive obligation to protect access to healthcare from third-party (vigilante or xenophobic) obstruction, as recognised in the December 2025 judgment, remains under-theorised in the academic literature, which has tended to frame the healthcare-access problem primarily as one of government policy exclusion rather than a duty to prevent private interference.
(E)Comparative Analysis: Documented vs Undocumented Migrants
Constitutional baseline
Documented migrants: Documented migrants (permanent residents and refugees) enjoy full protection under section 27 and are treated at near-parity with citizens, as established in Khosa.
Undocumented migrants: Undocumented migrants are protected by section 27(3) (emergency care) and by the general applicability of ‘everyone’ in section 27(1), but remain subject to the permissible differentiation Khosa left open and never resolved.
Key case law
Documented migrants: Khosa v Minister of Social Development (2004); Union of Refugee Women (2007); Lawyers for Human Rights v Minister of Home Affairs (2004).
Undocumented migrants: Section27 v MEC for Health, Gauteng (2023); Treatment Action Campaign, MSF and Kopanang v Minister of Police (December 2025) and the related March 2026 contempt proceedings.
Statutory entitlement
Documented migrants: The Refugees Act 130 of 1998 grants parity with citizens for basic healthcare, and the NHI Act 2023 grants refugees full Fund coverage.
Undocumented migrants: The National Health Act, section 4, grants free maternal and child care regardless of status, while the NHI Act 2023 confines undocumented migrants to emergency and notifiable-condition care.
Maternal and child health
Documented migrants: Free care is confirmed and largely uncontested in practice for this group.
Undocumented migrants: Free care was confirmed by the 2023 Charlotte Maxeke order, but access remains subject to recurring facility-level obstruction.
Chronic disease care (e.g. HIV, TB)
Documented migrants: Generally included under refugee and permanent resident entitlements.
Undocumented migrants: Excluded from comprehensive NHI Fund coverage under the current Act unless classified as an emergency or notifiable condition o a significant and contested gap.
Principal risk or vulnerability
Documented migrants: Administrative delay in status determination, and differentiation from citizens in ancillary schemes such as that considered in Union of Refugee Women.
Undocumented migrants: Facility-level denial of care, demands for advance payment, xenophobic obstruction, and legislative narrowing under the NHI Act.
Enforcement mechanism
Documented migrants: Secured mainly through individual and class litigation, with relatively settled compliance.
Undocumented migrants: Requires repeat litigation and contempt proceedings to secure compliance; enforcement remains the weakest link in this area.
(F)Conclusion
The South African case law establishes a clear constitutional and statutory floor of healthcare access that applies regardless of documentation status, particularly for emergency care and for pregnant and lactating women and children under six. Documented migrants, permanent residents and refugees enjoy a position close to parity with citizens, secured principally by and statutory entitlements. Undocumented migrants and, to a lesser extent, asylum seekers occupy a more precarious position protected in principle by section 27(3) and by targeted High Court relief, but now facing a legislative narrowing under the National Health Insurance Act that has yet to be tested against the Constitution. The central unresolved question for this field is whether that narrowing will survive constitutional scrutiny, and whether enforcement mechanisms can be strengthened to close the persistent gap between declared rights and facility-level practice.
(G)CASES
Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC).
Khosa v Minister of Social Development; Mahlaule v Minister of Social Development 2004 (6) SA 505 (CC); 2004 (6) BCLR 569 (CC).
Lawyers for Human Rights v Minister of Home Affairs 2004 (4) SA 125 (CC). Minister of Health v Treatment Action Campaign (No 2) 2002 (5) SA 721 (CC). Section27 & Others v MEC for Health, Gauteng & Others, Gauteng Division, Johannesburg, order of 14 April 2023 (unreported).
Soobramoney v Minister of Health, KwaZulu-Natal 1998 (1) SA 765 (CC).
Treatment Action Campaign, Médecins Sans Frontières and Kopanang Africa Against Xenophobia v Minister of Police & Others, South Gauteng High Court, December 2025 (unreported).
Union of Refugee Women v Director: Private Security Industry Regulatory Authority 2007 (4) SA 395 (CC).
(H) LEGISLATION
Constitution of the Republic of South Africa, 1996.
National Health Act 61 of 2003.
National Health Insurance Act 20 of 2023.
Refugees Act 130 of 1998.
