Health

• Date: 01 January 1997
• Published date: 01 January 1997
• Author: J. Sarkin
• Pages: 97-138
• DOI: 10.10520/EJC34826

97

5

Health

Jeremy Sarkin*

Introduction

This chapter provides an overview of the health care sector in South

Africa for the years 1997 and 1998. During this period the discrepancy

between private and public health care continued to reflect the legacy of

apartheid. Although only 18% of South Africans belong to a medical

aid this group has access to

85% of the pharmacists and 60% of the medical specialists.1 In fact, the

discrepancy in the amount spent in these two sectors has grown over

the last five years, further advantaging the recipients of private health

care.

During this period the government passed a great deal of new, often

controversial, legislation and regulation2 aimed at ensuring a more accessible

and cost-effective health care system. However, in many cases the legislation

was pushed through without adequate consultation and negotiation, which

has led to resentment from the affected parties.3 During these years health

care and the Minister of Health, Dr Zuma, were almost always in the news.4

* BA LLB (Natal), LLM (Harvard), LLD (UWC); attorney of the High Court of

South Africa, attorney at law in the State of New York, USA, Associate Professor,

Law Faculty, University of the Western Cape.

1 Health Systems Trust (1998) South African Health Review Chapter 1.

2 See J Sarkin ‘The Development of a Human Rights Culture in South Africa’ 20(3)

Human Rights Quarterly (1998) 628, 644.

3 The editor of the South African Medical Journal, Daniel Ncayiyana, in (April 1998)

88(4) SAMJ noted: ‘Unfortunately, this Ministry is already widely perceived as

being arrogant and autocratic even by some of its own friends’.

4 This has been a trend continued from previous years. See J Sarkin ‘Health’ South

African Human Rights Yearbook (1996) 115.

Jeremy Sarkin

98

The increase in health legislation has unfortunately been hampered by a

shortage of skilled personnel in health law. This has inhibited the evolution of

a coherent health law structure at both national and provincial levels.5

The government’s successes include improved provision of health care

through clinics. Thus, two studies found that whereas in 1997 only 70 % of

clinics provided daily family planning services, this figure had risen to 80 % in

1998.6 Although many new clinics remained closed initially because of

funding problems and staff shortages, there has nevertheless been an

improvement in the delivery of health care services.7 Other successes include

the restructuring of the various health care sectors, development

infrastructure, mass immunisation against polio and measles, the introduction

of hepatitis B vaccinations for babies, a system to monitor maternal mortality

and the introduction of a management system for tuberculosis (TB), as well as

the introduction of an Essential Drugs List to make available ‘quality’ drugs.8

The Department of Health also takes credit for a Primary School Nutrition

Programme which provided meals for 4 million children in 14 000 schools.9

However, South Africa still faces serious health problems. For example,

during this period 29 160 cases of malaria and 158 deaths were reported10 as

well as over 100 000 new cases of TB.11 In fact, the World Health Organisation

has named South Africa as one of 16 countries that lack the political will to

wipe out TB. The South African Medical Research Council (SAMRC) says

about 3,5 million people could be infected within the next eight years.

In an editorial in May 1998, the Mail & Guardian12 claimed that ‘disease’

racks the State health service:

a lethal mixture of underfunding, incompetence and political point-

scoring ... Kwazulu-Natal stops sending out ambulances to rural areas,

Gauteng closes some of its busiest emergency facilities; medical staff are

paid to quit the service; premature babies are allowed to die ... New

clinics often lack staff, while established clinics give their staff pay-

offs.13

5 Health Systems Trust (1998) South African Health Review Chapter 1.

6 Health Systems Trust (1998) South African Health Review Chapter 1.

7 Department of Health (1997) Annual Report Foreword.

8 Ibid.

9 Ibid.

10 Department of Health (1997) Annual Review 34.

11 Ibid at 33.

12 Mail & Guardian 22 May to 28 May 1998.

13 Ibid

Health

99

A memorandum presented by doctors and hospital superintendents in

Gauteng to the authorities at the end of 1998 stated:

We cannot in good conscience accept that financial constraints will

mandate the collapse of health services in Gauteng. We are tired of

being held responsible by patients ... for dirty wards, long queues, no

beds, unfriendly and inadequate services. It is time for those in power to

stand up and be accountable for this crisis in public hospitals.

They warned that health services were heading toward ‘irreversible collapse’.

In March 1999 it was reported that “almost nothing has happened to change

that - if anything, the situation is deteriorating”.14

In spite of these daunting problems, the independent NGO, The Health

Systems Trust (HST), reported at the end of 1998 that South Africa is slowly

moving towards delivering equitable health care for all.15 Their report cited

improvements in infrastructure and equipment, human resources,

pharmaceutics, health information and management systems. They did,

however, criticise the state on a number of points, including an incoherent

primary health care policy.16

This chapter examines the Constitution, court cases, legislation, policy,

regulation and the restructuring of various health sectors. Specific issues

such as those concerning doctors and medical graduates, AIDS, abortion,

euthanasia, tobacco and the Truth and Reconciliation Commission hearings

on health are also discussed.

The Constitution17 and court decisions

The 1996 Constitution18 contains various clauses that have a bearing on

health.19 The right to health is stated in section 27.

On 11 November 1997 the Constitutional Court heard a case of critical

significance for health care availability in South Africa. This is the case of

14 Mail & Guardian 26 February to 4 March 1999.

15 Health Systems Trust (1998) South African Health Review Chapter 1.

16 The Star 29 January 1999.

17 See J Sarkin ‘The Effect of Constitutional Borrowings on The Drafting of South

Africa’s interim Bill of Rights and the Role Played by Comparative and

International Law in the Interpretation of Human Rights Provisions By The

Constitutional Court’ (1999) Journal of Constitutional Law and J Sarkin ‘The

Drafting of South Africa’s Final Constitution From a Human Rights Perspective’

(1999) American Journal of Comparative Law 601.

18 See generally J Sarkin ‘Innovations in the Interim and 1996 South African

Constitutions’ (June 1998) The Review 57.

19 See J Sarkin ‘Health’ in South African Human Rights Yearbook (1996) 115.