Claim alleging a violation of health rights by South African health authorities when refusing renal dialysis treatment to a patient suffering from terminal illness; whether there has been a violation of the right to life; whether there has been a violation of the right to medical treatment; rationality review; allocation of resources; progressive realization.
This decision of the Constitutional Court of South Africa seemed to signal an excessively deferential approach in social and economic rights cases. However, the subsequent decision of the Constitutional Court in Grootboom has alleviated these concerns. The Court would appear to have moved to a more rigorous “reasonableness” standard of review, requiring attention to the needs of the most disadvantaged if the governments are to fulfil their constitutional obligations.
This was the first case in South Africa in which the Constitutional Court had to decide on the constitutional right to health care for everybody in light of the problem of scarce resources for the funding of the health care system. The Court accepted that rationing of resources is integral to health service delivery in the public sector even though this might support ongoing inequities between the private and public sector. However, the Court implied that there might be grounds for the challenge of executive policies if such policies were unreasonable or if they were not applied fairly and reasonably.
Counsel for the Appellant: MA Jacobs instructed by Vijay Kooblal and Associates Kooblal House 101 Stamford Hill Road Morningside Durban 4001 www.vkooblal.com vijay@vkooblal.com Counsel for the Respondent: CJ Pamenter SC and JS Moodley instructed by the State Attorney, KwaZulu-Natal