High court upholds right of pregnant women, young children to free health services — regardless of documentation status

The Gauteng high court has issued a court order upholding the right of all pregnant and lactating women, and children under the age of six, to access free health services at all public health institutions in South Africa, irrespective of nationality or documentation status.

The order, handed down on 14 April, requires the amendment of a policy issued by the Gauteng Department of Health in 2020 — the Policy Implementation Guidelines on Patient Administration and Revenue Management — so that it expressly reflects this right.

The 2020 policy was “fraught with internal contradictions”, allowing hospitals to interpret its provisions to deny certain groups of pregnant women and young children access to free services, according to a publication released by Section27 and partner organisations in November 2022.

Read more in Daily Maverick: No cash, no care – Gauteng hospitals turn away undocumented children and pregnant women

“Prior the court ruling, there were certain categories [of pregnant and lactating women and children under six] that were struggling to access free healthcare services more than others in Gauteng — it mainly affected asylum seekers, undocumented persons and persons who are at risk of statelessness,” explained Mbali Baduza, legal researcher at Section27.

The significance of the court order, she continued, was that it reaffirmed the law in terms of the National Health Act 61 of 2003, which states that all pregnant and lactating women and children under the age of six years — who were not beneficiaries of medical aid schemes — had to be provided with free public health services.



The order follows a court application brought by Section27 in May 2022, together with two women who were denied free health services while pregnant, and one whose child under six was denied free services. The respondents in the case include the MEC of Health in Gauteng, the minister of health, the director general of the Department of Health, and Charlotte Maxeke Johannesburg Academic Hospital.

The government respondents ultimately withdrew their notice of intention to oppose the application and entered into discussions with the applicants on a proposed court order, according to Section27.

The final court order declares that any policies or circulars that require pregnant and lactating women, and children under six, to go through a classification and fees determination process are inconsistent with the National Health Act and therefore invalid.

“The effect of this court order is that it applies across the country… Medical xenophobia or health xenophobia has been on the rise in certain provinces, and this court order makes it clear that all pregnant women and children under six — regardless of their status — can access hospital care for free… and that’s an important precedent,” said Baduza.

The court has given the Gauteng Department of Health until 16 October to amend its 2020 policy. The minister of health has until 15 May to issue a circular to all provincial health departments, recording that all pregnant and lactating women and children under six who are not beneficiaries of medical aid schemes, and have not come to South Africa for the specific purpose of obtaining healthcare, are entitled to free health services at any public health establishment.

The minister is further ordered to ensure that posters reflecting the above are prepared and displayed in all health establishments in all provinces by 17 July.

A cause for concern

Timely access to comprehensive medical care is essential for all people, but is particularly critical for pregnant and lactating women and children under six who may face additional vulnerabilities, according to Dr James Smith, migration health access advisor for Doctors Without Borders.

“When these groups are denied access to healthcare, the outcomes can be catastrophic. We know that charging for healthcare is one of the biggest barriers to care-seeking in South Africa and globally,” he said.

“We commend this landmark ruling that affirms free access to essential public health services for these groups, whether they are South Africans or non-South African nationals. Moving forward, monitoring and ensuring compliance with the ruling will be essential to ensure equitable receipt of essential maternal and child healthcare for both migrants and South African nationals.”

Dale McKinley, a spokesperson for Kopanang Africa Against Xenophobia (Kaax), said that while Kaax welcomed the court ruling, it should never have been necessary for SECTION27 to take on the Gauteng Health Department to enforce the Constitution.

“We should be angry that we’ve had to go this far and that we have to continue to force our government to do the most basic things in terms of what our law says,” he said. 

This sentiment was echoed by Sharon Ekambaram, head of the Refugee and Migrant Rights Programme at Lawyers for Human Rights and a spokesperson of Kaax. She condemned the circumstances that saw pregnant women denied healthcare and “stripped of dignity”, despite the rights they were entitled to by law.

“It is concerning that our government needs to be reminded of their constitutional obligations as set out in our Constitution and in our policies. This situation is but one component of a much broader crisis of institutionalised xenophobia,” she said.

“We need to understand that we have to hold this government to account… [and] ensure that the constitutional imperative… to transform our country from the conditions of indignity suffered predominantly by black African people under apartheid is enforced by the state.” DM/MC