Access to healthcare: a battleground for South African citizens and foreign nationals

The South African Human Rights Commission (SAHRC) is currently facing mounting pressure from March and March, a non-political movement, and Operation Dudula, an anti-migrant group, as they staged protests outside the commission offices in both KwaZulu-Natal (KZN) and Gauteng last week. 

The demonstrations were aimed at submitting a memorandum, detailing their concerns regarding foreign nationals accessing public healthcare and various government services, and demanding that South Africans be prioritised. 

Over the past few weeks, members from the groups have blocked access to state hospitals and clinics in both provinces. They are checking the identity documents and appointment cards of patients at the entrances. Foreign nationals - whether documented or not - are not permitted to enter. 

Pavershree Padayachee, the provincial manager for the SAHRC in KZN, said these groups do not have legal authority to turn foreign nationals away from various government healthcare and other facilities. She said they were not the responsible authorities to enforce immigration laws. 

“Such power to inspect, arrest, or detain any undocumented persons lies solely with the Department of Home Affairs, supported by the South African Police Service (SAPS) when lawfully required.” 

Padayachee said the commission expected to provide responses to the memorandums in a few days.

Teresa Nortje, chairperson of the March and March movement committee, said they decided to take action after they received complaints from South African citizens about the long waiting times and shortage of medication at government hospitals. 

“South Africans complained about having to sit at the hospital from 7am to 4pm, only to be told they have to come back the next day to see the doctor or there was no medication. They said there were more foreign nationals filling the benches than South Africans.”

She, together with other members of the movement, stood at the entrance of the Addington Hospital in Durban on Friday, checking patients' identity documents and appointment cards.  

Nortje said last week, a woman was taken into the emergency unit of Addington Hospital and needed to be admitted. She said due to the lack of beds, because the majority had allegedly been taken up by foreign nationals, the woman had to sit in the emergency unit for two days. 

“How is that fair? We are now not letting any foreign nationals enter the hospital, even if they have ‘documents’. We have learnt that there is a person in the vicinity making these documents which look real. 

“We are also calling on the Department of Home Affairs to send an official to the hospital and check these documents to see if they are real or fake. We also call on the department to apprehend and deport those who are here illegally back to their country.

“Why should taxpayers have to bear the burden? Furthermore, South Africans are required to get medical insurance when they visit other countries, so should foreign nationals,” she asked. 

Nortje said since they started the movement about a month ago, they have received positive feedback from patients. 

“We have South Africans come up to us and say 'thank you'. They are now being treated in less than two hours and getting their medication. There are accusations of xenophobia, but we are not  doing this because of any hate. This is purely us ensuring that South Africans are getting what they are rightfully entitled to.”

Nortje added that people have reached out to them from areas such as Chatsworth and Phoenix to assist at hospitals and clinics there. 

Reaction

- Asha Ramgobin, the executive director of the Human Rights Development Initiative, said most provisions in the Bill of Rights began with the words “Everyone has the right to...” 

This, she said, included the rights to dignity, equality before the law and equal protection of the law, access to health care services, and basic education. 

“The only rights that are limited to citizens are political rights relating to voting, establishing and joining political parties, citizenship and freedom of trade, occupation and profession. Every other right is available to everyone.”

Ramgobin said the government had the obligation under the Constitution and under international human rights law to respect, protect and fulfil all human rights.

“The obligation to respect requires that the government refrain from infringing the rights of people, the obligation to protect requires the state to take proactive action to prevent its agents and others from infringement, and the obligation to fulfil requires that the state develop policy, legislation and systems for rights protection. 

“In the context of the situation at public hospitals today, the obligation to protect the right of access to health care services requires that the state deploy its agents to protect the sick from anyone who harasses, persecutes or interferes with their ability to access health care services. It is this simple,” she said. 

- Devoshum Moodley-Veera, an integrity activist, said the Constitution enshrined the basic right to health for all and that the State had an ethical responsibility to provide the necessary resources to everyone, regardless of their documentation status.

“The uncomfortable question we must confront is not, if we should provide care, but how the State plans to address the immense strain on our healthcare services. Let us be clear, foreign nationals, documented or otherwise, are estimated to constitute a mere 3% of our population. While every additional patient adds pressure, it's disingenuous to suggest they are the sole, or even primary cause of the systemic challenges we face.”

Moodley-Veera said there was a desperate need for proper, consistent processes within the healthcare system that catered to all who needed help.

“How will the State deal with the current strain? This is where strategic planning, not exclusionary policies, must come to the fore. Every individual, irrespective of their origin, deserves the opportunity to access basic health services.”

- Raymond Perrier, Director of the Denis Hurley Centre, said: “The South Africa Constitution and law does not give the right to government health institutions to refuse to serve people who are foreign, whether they are documented or undocumented. The argument that foreigners are not paying taxes to contribute to the healthcare provided is untrue. They do pay taxes in various ways.

“Furthermore, the argument that they (March and March and Operation Dudula) are entitled to prevent foreigners from accessing services is also untrue. Most importantly, the health of the entire community depends on the health of each individual, and preventing foreigners from accessing, for example, tuberculosis medication or antiretrovirals, is not only putting the person at risk, but the wider community.”

- Yolanda Akram, an attorney specialising in immigration and constitutional law, said Section 27 of the Constitution states, “Everyone has the right to have access to health care services, including reproductive health care...”

“The use of the word ‘everyone’ is deliberate and inclusive. It does not limit the right to citizens only. Our courts have repeatedly affirmed that basic rights apply to all people within South Africa, irrespective of nationality or legal status.” 

Akram said from a practical standpoint, denying foreign nationals access to healthcare does not make South Africa safer or more economically sound. 

“On the contrary, it increases the risk of unchecked communicable diseases, strains emergency services, and drives desperate people underground, creating public health blind spots.”

She added that the denial of healthcare to foreign nationals was a direct violation of the Constitution and South Africa's democratic values. 

“It erodes our human rights framework and risks creating a dangerous precedent of selective humanity. If there are administrative or budgetary concerns within the Department of Health, they should be addressed through policy reform and funding mechanisms, not by excluding vulnerable people from lifesaving services.

“Government departments, healthcare administrators, and frontline workers are urged to respect the Constitution and treat all people, regardless of nationality or immigration status, with the dignity, compassion, and fairness they deserve,” she said.  

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