Pretoria - The Gauteng High Court, Johannesburg, has upheld the right of all pregnant and lactating women and children under 6 to access free health services at all public health establishments, including hospitals.
This is irrespective of their nationality and documentation status.
It was ordered that the Gauteng regulations and a policy, introduced by the Gauteng Department of Health in 2020, which denied free health care services to pregnant and lactating women and young children who are asylum seekers, undocumented, or persons affected by statelessness, are declared unlawful.
The Gauteng Department of Health was ordered to amend its policy by October 16 this year.
It was also declared that any other similar policies or circulars that prevent pregnant and lactating women and children under 6 from accessing free health services are declared inconsistent with the National Health Act and are invalid.
The court included two orders designed to disseminate and increase the awareness of the court order – by no later than May 15, the national Health Department must issue a circular to all provincial health departments, recording that all pregnant and lactating women and children under 6 (who are not members or beneficiaries of medical aid schemes, and who have not come to South Africa for the specific purpose of obtaining health care) are entitled to free health services at any public health establishment.
The department was ordered to, by no later than July 17, direct the display of posters or notices at all health establishments in all the provinces. These posters must make it clear that all pregnant and lactating women, as well as all children below 6, are entitled to free health services at any public health establishment, irrespective of their nationality or documentation status.
It must also be made clear this is only for those who do not have medical aid and who have not come to the country with the specific aim of receiving medical care.
Government respondents (the MEC and head of the Department for Health, Gauteng, Minister of Health and the CEO of Charlotte Maxeke Johannesburg Academic Hospital) are required to report to the court on compliance with each element of the court’s order by affidavit and to appear in court on October 23 to provide a comprehensive report on their compliance with the order.
The order followed an application lodged in May last year by Section27, together with two women denied access to free health services while pregnant and one whose child that was under 6 was denied free health services.
The government failed to respond to the litigation other than filing a notice of intention to oppose in July.
As a result, case management by Deputy Judge President Roland Sutherland commenced and culminated in the withdrawal of the notice to oppose. Instead, the government was consulted about the proposed order, which was made an order of the court.