Region: Africa
Year: 2007
Court: High Court - Cape of Good Hope Provincial Division
Health Topics: Hospitals
Human Rights: Freedom of association, Right to health, Right to work
Tags: Access to treatment, Diagnostics, Examination, Health facilities, Public hospitals, Secondary care, Tertiary care
A public sector strike took place in 2007. The State contended that not all employees of the State have a right to participate in such a public sector strike, in particular those engaged in essential services. The State subsequently obtained an order in which an interdict was granted to the effect that essential services employees were prohibited from engaging in the strike.
A number of essential services employees nevertheless participated in the strike. The abovementioned order and an ultimatum to return to work was brought to the attention of the employees in essential services engaged in the strike. This was followed by the decision to dismiss the said employees. As a result, 41 workers from health clinics in Khayelitsha, in the Western Cape Province, were dismissed.
The Treatment Action Campaign (TAC), along with other Applicants, including children and adults living in Khayelitsha who required ongoing care and treatment for their illnesses, approached the court in an application for urgent relief. The sought a declaration addressing the legality of the dismissals, namely that they were procedurally unfair and amounted to an invasion of the Applicants’ constitutionally guaranteed right to adequate health care and inter-related rights to life and dignity. The relief sought focused on both the reinstatement of the dismissed health care workers and the restoration of a reasonably functioning health service.
TAC contended that the dismissal of some of the health and support workers at the Khayelitsha health clinics severely disrupted an already attenuated service and had the potential to cause irreparable harm to many chronically ill patients.
Respondents, namely health and public service and also administration authorities, denied that the dismissals were unlawful.
The court considered the following two issues: whether the court was in a position to reinstate the dismissed workers, and whether the Applicants’ constitutional rights had been infringed by the dismissals, and if so, what order was to follow.
As to the first issue, the court noted that none of the dismissed employees or their trade unions were applicants in the matter, the dismissed employees had not sought reinstatement through an application in the court, and the Applicants did not have the requisite authority to act on behalf of the dismissed employees. The court thus held that the fairness of the dismissals was to be determined in other fora, in particular under provisions of the Labor Relations Act and the Constitution of the Public Health and Welfare Sector Bargaining Council.
As to the second issue, the Applicants argued that the Respondents’ conduct constituted an infringement of the rule of law and the State’s constitutional obligations in relation to articles 27 and 28 of the Constitution, in particular the right of access to adequate public health services, including the rights to emergency medical care, reproductive health and basic health services for children. Applicants further contended that the inability of persons in Khayelitsha to access chronic and emergency services was the direct consequence of the Respondents’ dismissal of health workers in that township.
The court was presented affidavits, which it noted contained compelling evidence demonstrating the potential for irreparable harm to the patients of health clinics in Khayelitsha. The affidavits showed that difficulties already existed in maintaining an adequate level of service delivery at the clinics. Moreover, thirty of the 41 dismissals were from the busiest of the three clinics in Khayelitsha, Ubuntu Clinic. Some units at this clinic were managing more than 2,000 patients and seeing 180 patients per day. It was argued that these dismissals disproportionally affected the people of Khayelitsha, particularly because the public health system in the township was already overburdened.
The court stated that the affidavits demonstrated that health services in Khayelitsha had been severely curtailed as a result of the dismissals. The court noted that the dismissals had been conducted without the adoption of a proper contingency plan and adequate consideration of the deleterious effect they would have upon the health of the weak, disabled and ill of Khayelitsha. The court further recognized that the dismissals were likely to result in irreparable harm to health services in the township and the health of chronically ill patients, including children.
The court noted that South Africa had ratified the International Covenant on Economic, Social and Cultural Rights, which recognizes the right of everyone to the highest attainable standard of physical and mental health. The court stated that the matter at hand involved the State’s negative obligation to protect against the invasion of socio-economic rights and to “refrain from actions that serve to deprive individuals of their rights.” It added that this negative obligation applied to the right of access to health care services.
The court granted a rule nisi and called upon the Respondents to show cause why a final order should not be made ordering them to “restore and guarantee the provision of reasonably functioning health services in Khayelitsha including emergency, chronic, child and reproductive health services.”
“[The doctor’s affidavit] paints a graphic picture of the constraints under which doctors and nurses work in Khayelitsha to give their patients an acceptable level of medical care. His conclusions of possible irreparable harm caused by their dismissals are premised upon his experience and cannot be easily disregarded.” Page 6.
“It is apparent from the affidavits referred to herein, that health services in Khayaletsha have been severely curtailed as a result of the dismissals. These steps were taken without proper contingency plans being adopted.” Page 8.
“This matter relates to the negative obligation on the State to respect socio-economic rights – in other words the rights can be negatively protected from improper invasion . . . The ‘negative obligation’ applies equally to the right of access to healthcare services.” Page 8.
“The applicants, and those whom they represent, have a clear right to be afforded some protection against an invasion of the constitutionally guaranteed rights. They are in jeopardy of irreparable harm and have had no option but to approach this Court for appropriate relief.” Page 9.