Section 27(1) of the Constitution of the Republic of South Africa, 1996, clearly states that: “Everyone has the right to have access to healthcare services, including reproductive healthcare.”

This constitutional provision means that all people in South Africa regardless of nationality, legal status, race, gender, age, income level, or geographic location are entitled to access basic healthcare services. This includes:

• South African citizens
• Refugees and asylum seekers
• Documented and undocumented migrants\
• Stateless persons
• Children, including separated, unaccompanied and stateless children.
• Persons in detention
• Vulnerable populations, such as persons with disabilities, the older persons, and persons living in poverty

The Constitution does not qualify or limit this right based on immigration status or citizenship. Furthermore, in accordance with Section 27(3), “No one may be refused emergency medical treatment.” This provision ensures that emergency healthcare must be provided unconditionally by both public and private health facilities.

The SAHRC is deeply concerned by reports of healthcare facilities that deny treatment to individuals on the basis of nationality or documentation status. Such practices are not only unethical and unlawful but also inconsistent with South Africa’s obligations under both domestic and international human rights law.

The SAHRC is also concerned that people are taking laws into their own hands and making it difficult for people to access medical care due to their nationality. It is important to note that no civic group or individual has the legal authority to control access to public health facilities or to enforce immigration laws. The power to inspect, arrest, or detain undocumented persons lies solely with the Department of Home Affairs, supported by the South African Police Service (SAPS) when lawfully required. The SAHRC urges both the Department of Home Affairs and SAPS to diligently perform their duties, to avoid citizens taking the law into their hands.

The Commission, through its monitoring work has seen challenges in the healthcare sector including staffing shortages, long queues in clinics and hospitals, shortage or limited bedspaces. The Commission continues to engage healthcare facilities leadership, MECs, and the relevant departments of health with a view to address these systemic challenges.

The Commission would like to remind members of the public and civic groups that access to healthcare is central to the right to dignity, the right to life, and the right to equality. The denial of healthcare on discriminatory grounds undermines the constitutional promise of a just, inclusive and caring society.

The SAHRC therefore:

• Urges all public healthcare providers and provincial health departments to ensure non-discriminatory access to services in compliance with the Constitution and the National Health Act.
• Calls on healthcare professionals to uphold their ethical duties to treat all patients with humanity and impartiality.
• Appeals to law enforcement to remain vigilant and to intervene where public conduct may lead to violence or infringes on the rights of others.

The South African Human Rights Commission remains committed to promoting and protecting the right to health for all persons in South Africa.  The Commission is dedicated to educating the public about their rights and responsibilities. We also urge law enforcement to monitor the situation before the tensions can escalate to violence.

The Commission calls of members of the public who are frustrated by lack of access to health to raise concern with relevant departments or lodge complaints with the Commission. Manning of clinics and hospital entrances citing challenges with accessing healthcare services is a violation of human rights.

ISSUED BY THE SOUTH AFRICAN HUMAN RIGHTS COMMISSION