Scope and limits of judicialisation of the constitutional right to health in South Africa: an appraisal of key cases with particular reference to justiciability

Abstract

Section 27 of the South African Constitution guarantees everyone a right of access to healthcare services, including reproductive healthcare. This paper discusses how domestic courts have interpreted and applied section 27. It explores the extent to which section 27 is justiciable in the sense of being amenable to judicial interpretation and application in practice. The paper highlights the scope as well as the limits of the constitutional and institutional competences of the courts to adjudicate a claim relating to the right to health that is guaranteed by section 27. The justiciability of the right to health under the South African Constitution is interrogated through a critical appraisal of three cases decided by the South African Constitutional Court, namely, Soobramoney versus Minister of Health KwaZulu-Natal Minister of Health and Others versus Treatment Action Campaign and Others, and Government of the Republic of South Africa and Others versus Grootboom and Others against the backdrop of the transformation of the South African constitutional landscape in the post-apartheid era.

Keywords

• Constitutional Competence
• Institutional Competence
• Justiciability
• Right to Health
• Socioeconomic Rights