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The Gauteng High Court, Johannesburg on Friday upheld the right of all pregnant and lactating women, and children under 6, irrespective of nationality and documentation status, to access free health services at all public health establishments, including hospitals.  

The Court ordered that Gauteng regulations and a policy, introduced by the Gauteng Department of Health in 2020, that denies 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 16 October 2023. 

The Court 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. 

1. The Court included two orders that are designed to disseminate and increase the awareness of the court order:  
2. The Court ordered that, by no later than 15 May 2023, the National Department of Health must issue a circular to all provincial departments of health 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 National Department was ordered, by no later than 17 July 2023, to direct the preparation and display of posters or notices in all health establishments in all the provinces, which state that: 

• ALL pregnant women,
• ALL women who are lactating, and
• ALL children below the age of six

Are entitled to free health services at any public health establishment, irrespective of their nationality and documentation status, unless: they are members or beneficiaries of medical aid schemes; or they have come to South Africa for the specific purpose of obtaining health care.

Government respondents (the MEC and Head of Department for Health, Gauteng, the 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 23 October 2023 to provide a comprehensive report on their compliance with the order. 

The order follows a Court application brought in May 2022 by SECTION27 together with two women who were denied access to free health services while pregnant and one whose child that was under 6 was denied free health services. Government respondents failed to respond to the litigation, other than filing a notice of intention to oppose in July 2022. 

As a result, case management of the matter by Deputy Judge President Sutherland commenced and then culminated in the withdrawal of the notice of intention to oppose, and discussions with the respondents on a proposed order, a version of which has now been made an order of Court.  

The Court’s order is a significant victory as it affirms the position already contained in our law that all pregnant and lactating women, and children under 6, are entitled to access free health services at public health facilities, including hospitals. The order will contribute to South Africa’s progress towards decreasing maternal and child morbidity and mortality. This Court order is in the interests of individual women and young children and the public health interest. For this reason, the order is warmly welcomed. 

SECTION27 wishes to thank the pro bono team at Cliffe Dekker Hofmeyr (CDH), and our counsel, Advocates Kate Hofmeyr SC and Thabang Pooe for representing the applicants in this case. We also thank Jesuit Refugee Service (JRS), Doctors Without Borders (MSF), the Southern African HIV Clinicians Society (SAHCS) as well as Jo Vearey, an Associate Professor with the African Centre for Migration & Society at the University of the Witwatersrand who supported the application through affidavit. The litigation was enhanced by the valuable interventions of the following amici curiae: 

• Centre for Child Law
• International Commission of Jurists (represented by the Centre for Applied Legal Studies)
• Amnesty International (represented by the Women’s Legal Centre)
• UN Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health
• UN Special Rapporteur on Violence Against Women and Girls
• UN Working Group on Discrimination Against Women and Girls; and 
• UN Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance (the last four being represented by Lawyers for Human Rights). 

The European Union funding supports SECTION27 and the Centre for Child Law’s work in enhancing accountability in health and education in South Africa. 

Issued by SECTION27