Gauteng high court orders urgent action to address cancer treatment backlog in public hospitals

The Gauteng High Court in Johannesburg has ordered the province’s Department of Health to take “all steps necessary” to provide radiation oncology services to patients on the backlog list for treatment at Charlotte Maxeke Johannesburg Academic Hospital and Steve Biko Academic Hospital.

The court ruled that the department’s failure to implement a plan to provide timeous radiation oncology services to cancer patients on the backlog list was unlawful and unconstitutional.

This comes after the Cancer Alliance, represented by lawyers from the human rights organisation SECTION27, took Gauteng health officials to court for failing to use R784-million allocated in March 2023 by the Gauteng Provincial Treasury for addressing radiation and surgical backlogs in the province.

In the judgment handed down by Acting Judge Stephen van Nieuwenhuizen on 27 March 2025, he noted that the constitutional rights of patients on the radiation oncology backlog list had been “trampled upon” by the Gauteng Department of Health due to the fact that ring-fenced funds intended for these patients went unspent after the department failed to outsource the radiation oncology service.

“The cancer patients on the backlog list are facing life-threatening illness. If they do not receive the radiation oncology treatment, they may not survive. In the absence of such treatment, their health continues to deteriorate significantly,” said Van Nieuwenhuizen.

“Backlog list patients have already passed away, waiting for such treatment that has not been forthcoming. Actual, irreparable harm has already occurred, continues to occur and is reasonably apprehended… The provincial health respondents, however, ignore this.”

In Van Nieuwenhuizen’s interim order, Gauteng Health MEC Nomantu Nkomo-Ralehoko, the head of the provincial health department, Arnold Malotana, and the CEOs of the Charlotte Maxeke and Steve Biko hospitals were given 45 days to update the backlog list of cancer patients who were awaiting radiation oncology services in the province.

These health officials were directed to “take all steps necessary to provide radiation oncology services to backlog list patients who are awaiting treatment at Charlotte Maxeke Johannesburg Academic Hospital and Steve Biko Academic Hospital in Gauteng at a public and/or private facility”.

Charlotte Maxeke Hospital in Johannesburg. (Photo: Sharon Seretlo / Gallo Images )

Steve Biko Academic Hospital in Pretoria. (Photo: Wikipedia)

They were also ordered to file an updated report within three months, giving a progress update on the steps taken to provide radiation oncology services to cancer patients on the backlog list, as well as Nkomo-Ralehoko’s long-term plan to provide radiation oncology services at the Charlotte Maxeke and Steve Biko hospitals.

The director of the Cancer Alliance, Salomé Meyer, told Daily Maverick that the judgment was a “landmark decision” in the context of health rights cases and “a significant victory for health and human rights in South Africa.

“This judgment has further clarified the concept of progressive realisation. It emphasises that when funds are allocated for a purpose, they must be used effectively — failing to do so is not just negligent, it is unacceptable,” she said.

Fumbled funds

The judgment noted that when the allocation of R784-million was announced in March 2023, the Gauteng Provincial Treasury explicitly stated that the money would be used to “clear the backlog”.

As these funds were intended for use over the three-year medium-term expenditure framework, the Gauteng Department of Health set aside R250-million for outsourcing radiation oncology services in the 2023/24 financial year and R261-million for 2024/25.

While the department awarded a one-year tender worth just over R17-million to Siemens Healthcare in February 2024 for “planning services”, the payments for these services did not kick in before the end of 2023/24. No tender for outsourced radiation treatment services was ever awarded.

The department failed to use any of the R250-million allocation by the end of the 2023/24 financial year, meaning the funds were returned to the provincial Treasury unspent.

It was alleged by the Cancer Alliance that as of 15 October 2024, the Gauteng Department of Health had not spent any of the R511-million allocated between 2023/24 and 2024/25 to provide urgent services to cancer patients on the backlog list.

In the Cancer Alliance’s court submissions, Meyer argued that the National Department of Health had been “opaque” about what the planning services provided by Siemens Healthcare entailed.

“[The provincial health respondents] allege that the applicant [Cancer Alliance] suffers no harm with the awarding of the tender to Siemens Healthcare,” stated the judgment.

“The provincial health respondents appear insensitive and dismissive of the actual harm that has been … and is being suffered by the cancer patients on the backlog list, to whom they owe (undisputed) constitutional obligations.”

It was noted in the judgment that the Gauteng Department of Health would again be required to return any unspent funds for clearing the patient backlog to the provincial Treasury at the end of the 2024/2025 fiscal year.

Systemic struggle

The Gauteng Department of Health’s lack of openness and transparency is a critical issue, according to Meyer.

“They chose not to collaborate or improve cancer care services, leaving patients who have been waiting for extended periods without treatment or even any updates. This judgment is a win for these patients, who can now feel assured that their voices have been heard,” she told Daily Maverick.

Meyer said that cancer care in South Africa required a comprehensive overhaul, as the disparity between the public and private sectors remained “staggering”, with 86% of the population relying on only 20% of available cancer care services.

“The situation is further complicated by the absence of standardised treatment guidelines and a lack of clear referral pathways. As a result, most patients in the public sector are diagnosed at advanced stages of cancer, significantly undermining treatment outcomes,” she said. DM