08-05-2025
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.
