Authored By: Sibongakonke Mkhize
University of South Africa
Introduction
A long-standing controversy has resurfaced in recent months regarding the constitutional rights afforded to “everyone” under the Constitution. Naturally, not everyone advocates for the Constitution’s generosity in this regard. Rights afforded to everyone are commonly known as fundamental human rights, much like the right to access healthcare.1 This study focuses on the dilemma that specifically applies to the fundamental right to access healthcare in South Africa, which the Constitution affords to everyone, including non-nationals. This paper presents different perspectives on this dilemma and evaluates the healthcare system’s current capacity to fulfil that right. For the purposes of this study, “non-citizens” includes asylum seekers, undocumented non-citizens, and migrants.
Constitutional Obligations and Other Legal Frameworks
Section 27(1)(a) of the Constitution expressly states: “Everyone has the right to have access to health care services, including reproductive health care services.”2 As mentioned, the term “everyone” includes all people regardless of national status and documentation, which is the core of the dilemma that exists today. Subsection (2) further states that the state must take reasonable legislative measures, within its available resources, to achieve the progressive realisation of this right.3 This speaks not only to financial limitations but to the very capacity of the public healthcare system. Subsection (3) emphasises that no one may be refused emergency medical treatment, a provision that carries greater force than section 27(1).4 Unlike subsection (1), subsection (3) is not qualified by the availability of resources or the need for legislative measures.
Turning from the Constitution to the National Health Act, whose purpose is to regulate the healthcare system within constitutional and other legal parameters.5 Equitable access is strongly advocated for, but free healthcare is guaranteed only to a defined group of people under section 4 of the National Health Act, which includes “women, children, older persons and persons with disabilities.”6 This protection applies broadly, regardless of citizenship. Section 5 gives further effect to section 27(3) of the Constitution’s guarantee that no one may be refused emergency medical treatment. The state may charge for medical services based on a patient’s financial means, not on their nationality or citizenship status alone.7
In Soobramoney v Minister of Health (KwaZulu-Natal), the Constitutional Court reiterated the nature of socio-economic rights, emphasising that while these rights — particularly the right to healthcare — impose duties dependent on available resources, the right to emergency medical treatment is an immediate obligation.8 The key takeaway from this case is that the right to healthcare does not impose an unqualified obligation on the state, but rather requires progressive realisation within the state’s limited resources. The Court held that the state may lawfully limit access based on resource constraints, and that the right itself is not unlimited. In Minister of Health v Treatment Action Campaign, the Court held that government must take reasonable steps to expand access to healthcare, in fulfilment of its constitutional obligations.9
The Less Inclusive Approach
In a constitutional democracy, everyone is, in principle, entitled to rights regardless of nationality or citizenship. It is well established that South Africa’s healthcare system is overburdened in its attempt to accommodate everyone, particularly given that South Africa remains a developing country.10
Because resources are inherently limited, difficult choices must be made. As the Court confirmed in Soobramoney, the state’s obligation is limited by its capacity, meaning that providing full and equal access to “everyone” is not sustainable in practice. Public healthcare is funded primarily through taxpayer contributions, and the South African Revenue Service can only tax individuals it is aware of and who meet the relevant legal requirements — the majority of whom are South African citizens. On this basis, one could argue that citizens contribute disproportionately to the healthcare system and should therefore receive priority access to long-term or specialised care. However, such an approach would almost certainly reduce the standard of care available to non-citizens and would not be constitutionally sound: it would directly violate non-citizens’ rights to dignity and equality, and would amount to the discriminatory exclusion of already vulnerable groups such as refugees.
The Balanced Approach
This approach recognises the importance of universal access to emergency medical treatment, regardless of socioeconomic status, while proposing a structured system of conditional access for non-emergency care. Under this model, the right to access healthcare remains intact, but for non-citizens, priority for non-emergency services is determined by status — such as recognised refugee status, or documented versus undocumented residency. This framework removes arbitrary discrimination while establishing clear, justifiable guidelines on the level of care to which a person is entitled. It aligns with the reasoning in Minister of Health v Treatment Action Campaign, which requires government to act reasonably in expanding access.11 This approach respects all constitutional rights, acknowledges the state’s genuine resource limitations, and eases pressure on the healthcare system through better resource management and administrative efficiency. In essence, it represents the most constitutionally sound path forward, and reflects the principle of Ubuntu — a value that similarly envisions collective unity and mutual responsibility.
Conclusion
This study has presented the current dilemma and two possible approaches, weighing their respective strengths and weaknesses. Throughout, the importance of upholding constitutional values — and the rights that flow from them — has been central, reflecting both the essence of democracy and the principle of Ubuntu introduced above.
The right to access healthcare reflects South Africa’s commitment, as a democratic country, to human dignity and equality in the post-apartheid era. However, this right is not absolute; it is constrained by the state’s limited resources. An unrestricted approach continues to strain the healthcare system, whereas a balanced approach, underpinned by clear policy, offers a more constitutionally sound and practically effective solution — one in which emergency treatment remains accessible to all, while non-emergency services are carefully regulated. Ultimately, the challenge is not one of choosing between citizens and non-citizens, but of developing a sustainable regulatory framework that gives real effect to the constitutional promise of access to healthcare for everyone.
Endnote(S):
1. Constitution of the Republic of South Africa, 1996.
2. Constitution of the Republic of South Africa s 27(1)(a), 1996.
3. Ibid s 27(2).
4. Ibid s 27(3).
5. National Health Act 61 of 2003.
6. Ibid s 4.
7. Constitution of the Republic of South Africa s 27(3).
8. Soobramoney v Minister of Health (KwaZulu-Natal) 1998 (1) SA 765 (CC), 12.
9. Minister of Health and Others v Treatment Action Campaign 2002 (10) BCLR 1033 (CC), 23.
10. N Aikman, The Crisis Within the South African Healthcare System: A Multifactorial Disorder (Health and Medical Publishing Group 2019) 52.
11. Minister of Health v Treatment Action Campaign 2002 (10) BCLR 1033 (CC), 23.
