Originally published in Legal Times 9 March 2012
Chapter 2 of the Constitution contains the Bill of Rights. Included in this chapter is the right to healthcare. Yet refugees in South Africa are often being refused medical care and services by government clinics and hospitals.
The question that needs to be answered is whether this is lawful under our Constitution and the resulting legislation.
In the Constitution, the right to healthcare is placed alongside the rights to food, water and social security and is thus of similar importance. Section 27(1)(a) of the Constitution dictates that "everyone has the right to have access to healthcare services, including reproductive healthcare". Further, in terms of section 27(2) the state is obliged to take "reasonable legislative and other measures within its available resources, to achieve the progressive realisation" of this right.
While section 27(2) imposes obligations on the state to realise all rights set out in 27(1), the Constitution takes the right to healthcare and the need therefor one step further, and in section 27(3) states that "no one may be refused emergency medical treatment".
The National Health Act 61 of 2003, in its preamble takes cognisance of the duties imposed upon the state in sections 7 and 27 of the Constitution, and in terms of section 4(3)(b) of the National Health Act "the state and clinics and community health centres funded by the state must provide ... all persons, except members of medical aid schemes and their dependants and persons receiving compensation for compensable occupational diseases, with free primary healthcare services".
The contents of section 27(3) is also supported by section 5 of the National Health Act, which demands that "a healthcare provider, health worker or health establishment may not refuse a person emergency medical treatment".
Does this right apply only to South African citizens, or does it extend to refugees?
In examining whether this right extends to refugees it is necessary to consider what type of person constitutes a "refugee" under South African law.
According to section 3 of the Refugee Act 130 of 1998 (the Act) a person qualifies for refugee status if that person, "owing to a well-founded fear of being persecuted by reason of his or her race, tribe, religion, nationality, political opinion or membership of a particular social group, is outside the country of his or her nationality and is unable or unwilling to avail himself or herself of the protection of that country, or, not having nationality and being outside of his or her former habitual residence is unable or, owing to such fear, unwilling to return to it; or owing to external aggression, occupation, foreign domination or events seriously disturbing or disrupting public order in either a part of the whole of his or her country of origin or nationality, is compelled to leave his or her place of habitual residence in order to seek refuge elsewhere."
Not everyone who satisfies the requirements set out above qualifies for refugee status; there are exclusionary provisions in the act.
If an applicant has committed a crime, is guilty of acts contrary to the objects of the United Nations Organisation or the Organisation of African Unity, or enjoys the protection of another country, he will not qualify for refugee status.
It is clear that the act has sought to constrain the type of persons who qualify for refugee status and has taken active steps to ensure that every applicant is scrutinised before given refugee status and the rights that flow therefrom.
The rights and obligations of refugees is contained in Chapter 5 of the act, section 27 thereof stipulates that "a refugee enjoys full legal protection, which includes the rights set out in Chapter 2 of the Constitution". Accordingly, a refugee is legally entitled to access to healthcare services and cannot be denied emergency medical treatment.
This is in line with the proper interpretation of section 27(1) which states that "everyone" is entitled to access to the right to healthcare not just "citizens" as is provided for in other sections of the Constitution, such as section 22.
Section 27(2) further states that "no one" may be deprived of these rights. This interpretation is supported by section 7 of the Constitution which states that the rights contained in the Bill of Rights are the "cornerstone of democracy in South Africa". It enshrines the rights of "all people in our country" not just South African nationals or citizens.
Practically, we must remember that refugees are often extremely vulnerable members of society who have fled their countries of origin with little and now live in abject poverty. In South Africa this is further exacerbated by the xenophobic attitude of members of our population resulting in refugees often leaving their possessions behind to find a new safer place to live. Given that refugees often have little and cannot afford medical care from private institutions, they fall squarely within the ambit of section 4(3) of the National Health Act.
South Africa's legislation regarding healthcare to refugees is in line with the stance taken in the United States of America and the United Kingdom. On paper it appears that South Africa is taking the steps required to realise the healthcare rights of refugees, but we know that in practice this is not being adhered to.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.