Authored By: Angela Okeke
University of the Western Cape
Introduction
At 2:30 AM on a cold winter morning in Johannesburg, Maria, a 28-year-old undocumented migrant from Zimbabwe, begins experiencing intense labour pains. She has no access to private transport and is rushed to the nearest public hospital by a neighbour who owns a bakkie. Upon arrival at the hospital gate, bleeding and barely able to walk, she is met by a security officer who asks for her ID or proof of legal residence. Maria explains in broken English that she has no papers but is in urgent need of medical care. The hospital staff, citing internal policy and resource limitations, refuses to admit her, stating that the facility is “for South Africans first.” No alternative is offered. She is told to seek help elsewhere — but it’s the middle of the night, and the next hospital is over 20 kilometres away. With no access to care and in extreme pain, Maria gives birth in the back of the bakkie outside the hospital gates. The baby is born prematurely and without medical assistance. When paramedics finally arrive too late the newborn has developed severe breathing complications, and Maria is unconscious from blood loss.
The Immigration Act defines an illegal foreigner as “a foreigner who is in the Republic in contravention of the Immigration Act, or someone who does not have an asylum-seeker permit, formal recognition of refugee status, or a refugee ID, or a valid permit or visa in their passport.[1]South Africa is particularly attractive to immigrants and refugees due to it’s higher wages, better living standards, and more secure future.”[2] According to Stats SA, it estimates that there were 3.96 million undocumented immigrants in South Africa by 2022, when the most recent census was held.[3] However, balancing national security and human rights obligations remains a significant challenge to healthcare providers in South Africa.[4] Directives were recently issued by the national and Gauteng health departments to begin billing foreign nationals the full rate for public healthcare services.[5] Only Gauteng passed these instructions onto its clinics and hospitals, specifying that all non-South Africans other than documented refugees should be charged full fees for all services including emergency treatment, maternity care and “basic health services”.[6] This is not only a threat to public health, but also violates people’s constitutional rights. Denying undocumented foreigners access to public healthcare in South Africa is unconstitutional, ethically unjustifiable, and harmful to public health as it undermines basic human rights, public safety, and the values of dignity and equality enshrined in our democracy.
Legal and Constitutional Framework
The Bill of Rights enshrined in Chapter 2 of the Constitution of the Republic of South Africa, 1996, is a cornerstone of democracy in South Africa.[7] It enshrines the rights of “everyone” in our country and affirms the democratic values of human dignity, equality and freedom.[8] S27(1)(a) of the Constitution of the Republic of South Africa 1996 states that everyone has the right to have access to health care services, including reproductive health care.[9] This inclusive language applies to everyone in the Republic and not just citizens are entitled to certain fundamental rights, including the right to access healthcare, protection of dignity, and the right to life. S4(3) of the National Health Act states that all pregnant and breastfeeding women and children under the age of six are eligible for free health care services at public clinics or hospitals.[10] Until a health minister publishes conditions to the contrary, this is the law that applies.[11] In the future, if this happens, a health minister won’t just be able to impose whatever conditions they like.[12] They’ll have to show their proposals take into account the free services already available and how changes would impact access to health care services and the needs of vulnerable populations such as women, children, the elderly and people with disabilities.[13] In the case of Soobramoney v Minister of Health, the court held that the right to emergency medical treatment had only limited meaning.[14] One who suffers a sudden catastrophe, which calls for immediate medical attention, should not be denied the available emergency services and should not be turned away from a hospital equipped to administer the necessary treatment.[15]
Ethical and Humanitarian Considerations
Ethically, it is challenging to justify refusing someone healthcare because they are undocumented. These are human beings we are talking about, many of whom are already in vulnerable situations. Migrants often come to South Africa in hopes of a better life, away from poverty, violence or instability.[16] They had no idea they will face tough conditions, discrimination, and limited access to basic needs. Denying them healthcare only increases their suffering, risking even their lives. One of the core ethical values of healthcare practitioners is compassion and justice.[17] Healthcare practitioners should be sensitive to and empathise with the individual.[18] Healthcare practitioners must treat all individuals and groups in an impartial, fair and just manner.[19] They have the duty to treat based on need, not legal status. If someone is in pain, injured, or in labour, their humanity must come before their paperwork. As South Africans we often talk about ubuntu, the idea that our humanity is tied to the humanity of others. If we really believe in dignity and compassion, we must come to terms with the fact that healthcare is a basic right and not a privilege for citizens only. Denying undocumented people healthcare goes against those values.
Public Health Perspective
National strategies for addressing both communicable and noncommunicable diseases lack migration awareness.[20] This is evident in the exclusion of migration and migrants from pandemic preparedness plans, including, most recently, the national COVID-19 vaccine program.[21]Denying healthcare can worsen communicable disease outbreaks such as HIV, TB and COVID 19. If people are too afraid to seek medical attention because of their documentation, these infectious diseases will spread across the country, putting the wider population at risk. Diseases do not respect borders or legal status. It was pointed out in the SAHRC that exclusionary practices undermine the health system’s ability to respond effectively to health threats. A healthy society depends on inclusive healthcare systems that treat everyone with dignity and prioritizes prevention, early intervention and public safety.
Resource and Economic arguments
Since South Africa’s democratic transition in 1994, the country has been associated with a progressive Constitution and a rights-based legislative framework enshrining rights for all those within its borders.[22] For 30 years, the post-apartheid government’s commitment to building robust and accessible public services, such as health and education, has offered hope of an inclusive and equitable approach to socioeconomic development for all.[23] The interplay of poor governance, resource constraints, and historical inequalities has negatively impacted all in South Africa and trapped many in cycles of poverty and unemployment.[24] The South African healthcare system struggles to provide sufficient medical care to any person, regardless of their nationality or status. [25] South Africa’s biggest problem is that the health needs of its people exceed capacity.[26] Regardless of these challenges, placing the blame on undocumented foreigners for lack of resources is both misleading and counterproductive. Migrants only make up a fraction of the population accessing public healthcare, and many contribute indirectly to the economy through labour and taxation, such as VAT on goods and services. Moreover, denying a certain group of people does not solve the underlying issues of poor planning, corruption and mismanagement that affect service delivery for everyone. What it does instead, is fosters division and scapegoating, shifting attention away from government’s responsibility to build a stronger more efficient healthcare system. A reliable system requires inclusive policies, not exclusionary ones that weaken public trust and deepen inequality.
Social and Political Realities
There have been many xenophobic attacks in South Africa against African and Asian foreign nationals living in the country, including refugees, asylum seekers, and both documented and undocumented migrants.[27] A documentary was released by BBC Africa Eye which investigates the increase in xenophobic attacks in the country and follows Operation Dudula, an anti-immigrant vigilante group that is reportedly violently targeting and harassing foreign nationals.[28] The movement is better known for calling for mass deportation of undocumented migrants, blocking immigrants from accessing healthcare, raiding businesses belonging to foreign nationals, and forcing their shops to close.[29] The documentary explains how xenophobia is within the Operation Dudula movement. “To tell you the truth, I hate foreigners,” a member of Operation Dudula said. “How I wish they could just pack and go and leave our country.”[30] According to the movement’s members, foreign nationals are the cause of South Africa’s economic hardship and challenges delivering services.[31] However, as the documentary explains that scapegoating immigrants will not improve basic service provision.[32] It also highlights that Operation Dudula will register as a political party and contest the elections.[33] South Africa’s Constitution guarantees rights to both citizens and non-citizens, including the right to freedom and personal security, as well as protection from all forms of violence—whether committed by the state or private individuals. It is essential that South African authorities uphold these constitutional principles by publicly condemning xenophobia, holding perpetrators of violence against foreign nationals accountable, and actively fostering inclusion and social unity.
Conclusion
At the heart of this issue is a simple question: do we deny someone medical help because of where they come from? I’ve learned that the Constitution is not just a legal document, it’s a commitment to dignity, equality, and justice for everyone in South Africa, regardless of status. Section 27 doesn’t say “only citizens.” It says “everyone.” Yes, South Africa faces serious challenges when it comes to resources and capacity in the public healthcare system. But turning away undocumented people, especially in life-threatening situations, goes against both the law and basic humanity. It shifts the blame for systemic failures onto the most vulnerable and risks deepening division and xenophobia. We need to be honest denying healthcare doesn’t fix the health system. It simply makes us less humane. If we want to live in a society that takes the Constitution seriously, we must treat everyone with care and dignity, especially when they need help the most. Our legal and moral values demand no less.
Bibliography
Cases
Soobramoney v Minister of Health (KwaZulu-Natal) [1997] ZACC 17, 1998 (1) SA 765 (CC), 1997 (12) BCLR 1696 (CC)
Constitution
Constitution of the Republic of South Africa, 1996 (Section 27(1))
Statutes
Immigration Act 13 of 2002 (South Africa)
National Health Act 61 of 2003 (South Africa)
Journal Articles
Klaaren J and Murray C, ‘The Challenge of Immigration Policy in the New South Africa’ (1995-1996) 3 Ind J Global Legal Stud 255
Maphumulo WT and Bhengu BR, ‘Challenges of Quality Improvement in the Healthcare of South Africa Post-Apartheid: A Critical Review’ (2019) 42 Curationis 1
Walker R and Vearey J, ‘Punishment over Protection: A Reflection on Distress Migrants, Health, and a State of (Un)care in South Africa’ (2024) 26 Health and Human Rights Journal 91 https://www.hhrjournal.org/2024/12/08/punishment-over-protection-a-reflection-on-distress-migrants-health-and-a-state-of-uncare-in-south-africa/ accessed 23 July 2025.
Articles and Reports
Hoffman P, ‘The Rights of Undocumented Immigrants in SA’, Accountability Now (22 January 2025)
Moolla M, ‘Understanding South Africa’s Immigration and Refugee Policies: Key Laws and Recent Court Rulings’ (Jan/Feb 2025) De Rebus https://www.derebus.org.za/understanding-south-africas-immigration-and-refugee-policies-key-laws-and-recent-court-rulings accessed 23 July 2025
Rensburg R, ‘Healthcare in South Africa: How Inequity Is Contributing to Inefficiency’ Wits University (7 July 2021) https://www.wits.ac.za/news/latest-news/opinion/2021/2021-07/healthcare-in-south-africa-how-inequity-is-contributing-to-inefficiency.html accessed 23 July 2025.
Stevenson S, ‘Are Foreigners Really Entitled to Free Healthcare in South Africa?’ Bhekisisa Centre for Health Journalism (6 March 2019) https://bhekisisa.org/article/2020-04-24-foreign-doctors-not-allowed-help-during-covid-19-outbreak-in-south-africa accessed 23 July 2025.
Masiko-Mpaka N, ‘Xenophobia Rears its Ugly Head in South Africa’, Human Rights Watch (28 September 2023) https://www.hrw.org/news/2023/09/28/xenophobia-rears-its-ugly-head-south-africa accessed 23 July 2025
Guidelines
Health Professions Council of South Africa, General Ethical Guidelines for the Healthcare Professions (Booklet 1, December 2021) https://cdn.ymaws.com/saslha.co.za/resource/collection/3DBDE116-0E29-401E-BC6F-488950C17A0D/Booklet_1_Guidelines_for_Good_Practice_Dec_2021.pdf accessed 23 July 2025.
[1] Immigration Act 13 of 2002 § 1(xviii) (S. Afr.).
[2] Jonathan Klaaren & Christina Murray, The Challenge of Immigration Policy in the New South Africa, 3 Ind. J. Global Legal Stud. 255, 255 (1995–1996).
[3] Paul Hoffman, The Rights of Undocumented Immigrants in SA, Accountability Now (Jan. 22, 2025) (on file with author fact‑checking Stats SA’s estimate of 3.96 million undocumented migrants in SA).
[4] Mohamed Moolla, Understanding South Africa’s Immigration and Refugee Policies: Key Laws and Recent Court Rulings, De Rebus (Jan./Feb. 2025)
[5] Sasha Stevenson, Are Foreigners Really Entitled to Free Healthcare in South Africa?, Bhekisisa Cent. for Health Journalism, Mar. 6, 2019
[6] Sasha Stevenson, Are Foreigners Really Entitled to Free Healthcare in South Africa?, Bhekisisa Cent. for Health Journalism, Mar. 6, 2019
[7] S. AFR. CONST., 1996, § 7(1).
[8] S. AFR. CONST., 1996, § 27(1).
[9] S. AFR. CONST., 1996, § 27(1).
[10] National Health Act 61 of 2003 (S. Afr.).
[11] National Health Act 61 of 2003 (S. Afr.).
[12] National Health Act 61 of 2003 (S. Afr.).
[13] National Health Act 61 of 2003 (S. Afr.).
[14] Soobramoney v Minister of Health (KwaZulu-Natal), [1997] ZACC 17, 1998 (1) SA 765 (CC), 1997 (12) BCLR 1696 (CC).
[15] Soobramoney v Minister of Health (KwaZulu-Natal), [1997] ZACC 17, 1998 (1) SA 765 (CC), 1997 (12) BCLR 1696 (CC).
[16] Jonathan Klaaren & Christina Murray, The Challenge of Immigration Policy in the New South Africa, 3 Ind. J. Global Legal Stud. 255, 255 (1995–1996).
[17] Health Professions Council of South Africa, General Ethical Guidelines for the Healthcare Professions (Booklet 1, Dec. 2021), https://cdn.ymaws.com/saslha.co.za/resource/collection/3DBDE116-0E29-401E-BC6F-488950C17A0D/Booklet_1_Guidelines_for_Good_Practice_Dec_2021.pdf.
[18] Health Professions Council of South Africa, General Ethical Guidelines for the Healthcare Professions (Booklet 1, Dec. 2021), https://cdn.ymaws.com/saslha.co.za/resource/collection/3DBDE116-0E29-401E-BC6F-488950C17A0D/Booklet_1_Guidelines_for_Good_Practice_Dec_2021.pdf.
[19] Health Professions Council of South Africa, General Ethical Guidelines for the Healthcare Professions (Booklet 1, Dec. 2021), https://cdn.ymaws.com/saslha.co.za/resource/collection/3DBDE116-0E29-401E-BC6F-488950C17A0D/Booklet_1_Guidelines_for_Good_Practice_Dec_2021.pdf.
[20] Rebecca Walker & Jo Vearey, Punishment over Protection: A Reflection on Distress Migrants, Health, and a State of (Un)care in South Africa, 26 Health & Hum. Rts. J. 91 (2024), available at https://www.hhrjournal.org/2024/12/08/punishment-over-protection-a-reflection-on-distress-migrants-health-and-a-state-of-uncare-in-south-africa/.
[21] Rebecca Walker & Jo Vearey, Punishment over Protection: A Reflection on Distress Migrants, Health, and a State of (Un)care in South Africa, 26 Health & Hum. Rts. J. 91 (2024), available at https://www.hhrjournal.org/2024/12/08/punishment-over-protection-a-reflection-on-distress-migrants-health-and-a-state-of-uncare-in-south-africa/.
[22] Rebecca Walker & Jo Vearey, Punishment over Protection: A Reflection on Distress Migrants, Health, and a State of (Un)care in South Africa, 26 Health & Hum. Rts. J. 91 (2024), available at https://www.hhrjournal.org/2024/12/08/punishment-over-protection-a-reflection-on-distress-migrants-health-and-a-state-of-uncare-in-south-africa/.
[23] Rebecca Walker & Jo Vearey, Punishment over Protection: A Reflection on Distress Migrants, Health, and a State of (Un)care in South Africa, 26 Health & Hum. Rts. J. 91 (2024), available at https://www.hhrjournal.org/2024/12/08/punishment-over-protection-a-reflection-on-distress-migrants-health-and-a-state-of-uncare-in-south-africa/.
[24] Rebecca Walker & Jo Vearey, Punishment over Protection: A Reflection on Distress Migrants, Health, and a State of (Un)care in South Africa, 26 Health & Hum. Rts. J. 91 (2024), available at https://www.hhrjournal.org/2024/12/08/punishment-over-protection-a-reflection-on-distress-migrants-health-and-a-state-of-uncare-in-south-africa/.
[25] W.T. Maphumulo & B.R. Bhengu, Challenges of Quality Improvement in the Healthcare of South Africa Post-Apartheid: A Critical Review, 42 Curationis 1 (2019).
[26] Russell Rensburg, Healthcare in South Africa: How Inequity Is Contributing to Inefficiency, Wits University (July 7, 2021), https://www.wits.ac.za/news/latest-news/opinion/2021/2021-07/healthcare-in-south-africa-how-inequity-is-contributing-to-inefficiency.html.
[27] Nomathamsanqa Masiko-Mpaka, Xenophobia Rears its Ugly Head in South Africa, HUMAN RIGHTS WATCH (Sept. 28, 2023), https://www.hrw.org/news/2023/09/28/xenophobia-rears-its-ugly-head-south-africa.
[28] Nomathamsanqa Masiko-Mpaka, Xenophobia Rears its Ugly Head in South Africa, HUMAN RIGHTS WATCH (Sept. 28, 2023), https://www.hrw.org/news/2023/09/28/xenophobia-rears-its-ugly-head-south-africa.
[29] Nomathamsanqa Masiko-Mpaka, Xenophobia Rears its Ugly Head in South Africa, HUMAN RIGHTS WATCH (Sept. 28, 2023), https://www.hrw.org/news/2023/09/28/xenophobia-rears-its-ugly-head-south-africa.
[30] Nomathamsanqa Masiko-Mpaka, Xenophobia Rears its Ugly Head in South Africa, HUMAN RIGHTS WATCH (Sept. 28, 2023), https://www.hrw.org/news/2023/09/28/xenophobia-rears-its-ugly-head-south-africa.
[31] Nomathamsanqa Masiko-Mpaka, Xenophobia Rears its Ugly Head in South Africa, HUMAN RIGHTS WATCH (Sept. 28, 2023), https://www.hrw.org/news/2023/09/28/xenophobia-rears-its-ugly-head-south-africa.
[32] Nomathamsanqa Masiko-Mpaka, Xenophobia Rears its Ugly Head in South Africa, HUMAN RIGHTS WATCH (Sept. 28, 2023), https://www.hrw.org/news/2023/09/28/xenophobia-rears-its-ugly-head-south-africa.
[33] Nomathamsanqa Masiko-Mpaka, Xenophobia Rears its Ugly Head in South Africa, HUMAN RIGHTS WATCH (Sept. 28, 2023), https://www.hrw.org/news/2023/09/28/xenophobia-rears-its-ugly-head-south-africa.
