Forceful ruling in Gauteng cancer case has far-reaching implications
A new ruling against the Gauteng Department of Health makes use of a supervisory interdict. This sets a precedent for future cases, empowering courts to step in when government entities fail to fulfil their constitutional duties, write Helen Michael, Slade van Rooyen and Farah Yassin of Werksmans Attorneys.
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In a decisive move that underscores the judiciary's role in safeguarding constitutional rights, the Gauteng Local Division of the High Court, Johannesburg, recently issued an urgent interim relief order against the Gauteng Department of Health (GDoH). This order, stemming from the case of Cancer Alliance v Member of Executive Council for Health Gauteng Province and Others, mandated the GDoH to immediately formulate and implement a plan to address the growing backlog in radiation oncology services at two of its key hospitals.
This ruling isn't merely a legal decision; it's a stark reminder of the critical intersection between public administration, budgetary allocation, and the fundamental right to healthcare.
The heart of the issue lay in the GDoH's apparent failure to utilise allocated funds effectively. In March 2023, the Gauteng Provincial Treasury earmarked R784 million to bolster surgical and radiation oncology services, with a significant R250 million specifically designated for outsourcing radiation oncology. Shockingly, these designated funds for outsourcing were not used and were eventually returned to the Treasury at the end of the fiscal year.
This inaction became the focal point for Cancer Alliance, a collective of non-profit organisations and advocates who brought the matter to court. They argued that the GDoH's dereliction not only squandered allocated resources, but also directly violated several constitutional provisions.
The case brought to the forefront critical constitutional sections that underpin the state's responsibility to its citizens. Section 7(2) mandates the state to protect and fulfil the rights enshrined in the Bill of Rights, while section 27 assures everyone the right to access healthcare services. Additionally, the argument hinged 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, leading to a severe crisis in cancer care.
Forceful
The court's judgment was forceful and unambiguous. It recognised the urgent need for intervention, noting 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 drove home the devastating real-world impact of administrative delays and bureaucratic missteps.
The judge found that the GDoH had unjustifiably ignored the patients' right to receive outsourced radiation oncology, especially when funds had been specifically allocated for that purpose. Furthermore, the GDoH had sidestepped attempts by Cancer Alliance to engage in discussions about the tender process and to follow established regulatory procedures. This lack of engagement was seen as a direct violation of section 195 of the Constitution, which emphasises accountability and transparency in public administration.
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 to patients' needs adequately. The court emphasised the gravity of the situation, noting that the patients on the backlog list were facing life-threatening illnesses. Without timely treatment, their health would inevitably deteriorate, potentially leading to premature deaths. This scenario, according to the court, constituted actual and ongoing irreparable harm, demanding immediate action. The GDoH's argument that the issues would be addressed in a future review application was dismissed as 'insensitive and dismissive' of the patients' suffering.
Ultimately, the court held that a 'compelling need' existed to ensure the GDoH was held accountable. It found that officials within the department had essentially 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 was ordered 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 ruling has far-reaching implications. Firstly, it reinforces the state's undeniable constitutional obligation to provide access to healthcare. The judgment makes it clear that merely allocating funds is insufficient; the state must actively ensure those funds are used to deliver essential services. Secondly, it shines a 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 step in when government entities fail to fulfil their constitutional duties, providing a powerful tool for ensuring compliance and safeguarding citizens' rights.
Powerful reminder
In conclusion, the Cancer Alliance case is more than just a legal victory; it's 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. It stands as a crucial checkpoint for how public resources are managed and highlights that inaction has 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 needs of the public they serve.
This week, the Gauteng health department announced that it would appeal the ruling.
Helen Michael is a director, while Slade van Rooyen and Farah Yassin are candidate attorneys at Werksmans Attorneys.
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Many companies, including Amazon, have affiliate marketing programs in which people with substantial social media followings can sign up to receive a percentage of sales or some other benefit when someone clicks through and buys a product using a special individualized link or code shared by the influencer. Means has used such links to promote various products sold on Amazon. Among them are books, including the one she co-wrote, 'Good Energy'; a walking pad; soap; body oil; hair products; cardamom-flavored dental floss; organic jojoba oil; a razor set; reusable kitchen products; sunglasses; a sleep mask; a silk pillowcase; fitness and sleep trackers; protein powder and supplements. She also has shared links to products sold by other companies that included 'affiliate' or 'partner' coding, indicating she has a business relationship with the companies. The products include an AI-powered sleep system and Daily Harvest, for which she curated a 'metabolic health collection.' On a 'My Faves' page that was taken down from her website shortly after Trump picked her, Means wrote that some links 'are affiliate links and I make a small percentage if you buy something after clicking them.' It's not clear how much money Means has earned from her affiliate marketing, partnerships and other agreements. Daily Harvest did not return messages seeking comment, and Means said she could not comment on the record during the confirmation process. Means has raised concerns that scientists, regulators and doctors are swayed by the influence of industry, oftentimes pointing to public disclosures of their connections. In January, she told the Kristin Cavallari podcast 'Let's Be Honest' that 'relationships are influential.' 'There's huge money, huge money going to fund scientists from industry,' Means said. 'We know that when industry funds papers, it does skew outcomes.' 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Vivek Murthy, who served as surgeon general twice, under Presidents Barack Obama and Joe Biden, made more than $2 million in COVID-19-related speaking and consulting fees from Carnival, Netflix, Estee Lauder and Airbnb between holding those positions. He pledged to recuse himself from matters involving those parties for a period of time. Means has not yet gone through a Senate confirmation hearing and has not yet announced the ethical commitments she will make for the role. Hund said that as influencer marketing becomes more common, it is raising more ethical questions, such as what past influencers who enter government should do to avoid the appearance of a conflict. Other administration officials, including Homeland Security Secretary Kristi Noem and Centers for Medicare and Medicaid Services Administrator Dr. Mehmet Oz, have also promoted companies on social media without disclosing their financial ties. 'This is like a learning moment in the evolution of our democracy,' Hund said. 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Welcome to Nucleus — Nucleus Genomics (@nucleusgenomics) June 4, 2025 Nucleus says it can test IVF embryos not just for well-known specific genes that have a high chance of illnesses like breast cancer, but also for appearance — sex, height, hair color, eye color — as well as IQ and complex health attributes like anxiety and ADHD. The launch video includes a screen shot of a comparison menu. The idea is to help parents choose which embryos to pick and which ones to, perhaps, discard. Nucleus Genomics embryos features screen Image Credits:Nucleus Genomics (opens in a new window) Genetic testing of embryos isn't unheard of. IVF physicians can test for genes that can cause conditions like Down syndrome, or when parents know they are of high risk for a particular genetic disorder, like cystic fibrosis. Techcrunch event Save $200+ on your TechCrunch All Stage pass Build smarter. Scale faster. Connect deeper. Join visionaries from Precursor Ventures, NEA, Index Ventures, Underscore VC, and beyond for a day packed with strategies, workshops, and meaningful connections. Save $200+ on your TechCrunch All Stage pass Build smarter. Scale faster. Connect deeper. Join visionaries from Precursor Ventures, NEA, Index Ventures, Underscore VC, and beyond for a day packed with strategies, workshops, and meaningful connections. Boston, MA | REGISTER NOW But that's not exactly what Nucleus is doing. It is using controversial 'polygenic scores' to determine 'complex genetic outcomes, like intelligence and anxiety,' a spokesperson says. According to the National Human Genome Research Institute, polygenic scores only calculate the probabilities of a certain complex illness occurring, mainly within populations. 'A polygenic risk score can only explain the relative risk for a disease,' the NHGR says. This is not the same as discovering a specific gene, such as for example the BRCA1 gene mutation, which gives a person a 60-80% 'absolute risk of breast cancer,' the NHGR says. There's a reason doctors don't typically use such tests for individuals. 'Polygenic risk scores are not yet routinely used by health professionals because there are no guidelines for practice and researchers are still improving how these scores are generated,' according to the NHGR. Nucleus defends that its method can be used to determine an individual's risk. The spokesperson pointed us to a 2018 paper where the authors said they had developed validated methods for five common diseases: coronary artery disease, atrial fibrillation, type 2 diabetes, inflammatory bowel disease, and breast cancer. That paper was advocating screenings to help individuals make lifestyle or therapeutic decisions, similar to Nucleus's initial concept. Wednesday's tweet was promising parents that Nucleus can help them create designer babies. It has now been viewed more than 4 million times and has hundreds of comments, many of them either expressing disbelief that this works as promised, or horror at the idea. One VC chimed into the discussion saying, 'I was going to type something like Noah get the boat but honestly the reality of this just makes me so nauseous.' I was going to type something like Noah get the boat but honestly the reality of this just makes me so nauseous — Max Niederhofer ❤️🔥 (@maxniederhofer) June 5, 2025 Nucleus has experienced this kind of controversy before, as TechCrunch previously reported, when it its $14 million series A earlier this year. The startup is backed by Founders Fund, Alexis Ohanian's 776, and angels including Adrian Aoun (CEO at Forward Health), Brent Saunders (former CEO at Allergan), and Matteo Franceschetti (CEO at Eight Sleep). Last year, Sadeghi launched Nucleus IQ, which is supposed to tell users how much their genetics influence intelligence. The product was blasted as 'bad science and big business' by some critics. Sadeghi published a lengthy defense of his company's methodology. Even so, telling adults that they are genetically smart is one thing. Telling IVF parents that they can choose the appearance and other complex attributes for their children is, many would argue, something else. Nucleus is not currently conducting such tests via IVF lab partners itself, The Wall Street Journal reports. It's partnering with Genomic Prediction, which works with IVF clinics. A Genomic executive told the WSJ that many parents request intelligence tests, and it doesn't provide that. Parents can voluntarily upload genetic data information to Nucleas if they want to pursue it. Or, as Sadeghi said in the launch video aimed at would-be parents: 'Not that long ago IVF-1 sparked fear and the stigma of test tube babies,' he said. 'What was once controversial is now an everyday practice. The same is true with genetic optimization. The technology is now here and it's here to stay.'
