Court orders action against xenophobic clinic blockades

The Department of Health has been compelled to act against alleged xenophobic vigilantes after the Gauteng High Court ruled that blocking access to public health facilities is unlawful, as reported by the Independent on Saturday.

Judge Steven Wilson ruled on Thursday that such blockades violate both legal and constitutional rights to healthcare. He further warned that xenophobia poses not only a societal problem but a direct threat to democracy and human rights.

“Xenophobia is one of the greatest threats to democracy and human rights we presently face. Leaving aside that it feeds on the most toxic of human instincts — the hatred of the other — the problem with xenophobia is its misdirection. If we can blame foreigners, we need not look to ourselves for the solutions to the poverty and inequality that scar our society,” he said.

The judgment followed an application brought by three civil society organisations on behalf of foreign nationals, and some South Africans, who were harassed or denied treatment at public clinics for failing to present a South African identity document.

Although the majority of illegal protests occurred in KwaZulu-Natal and Gauteng, the applicants — the Treatment Action Campaign, Médecins Sans Frontières, and Kopanang Africa Against Xenophobia — focused on unlawful conduct at Johannesburg’s Yeoville and Rosettenville clinics. Respondents included the national and Gauteng departments of health, the national and provincial police commissioners, and the South African Human Rights Commission.

Judge Wilson questioned why clinic security personnel appeared to have relinquished control of access to the protestors.

“If the vigilantes have overwhelmed the security guards (there is little to suggest this on the papers), then security needs to be enhanced. If the security guards are actively assisting the vigilantes because they are sympathetic to the vigilantes’ aims, steps must be taken to discipline or replace them,” he stated.

He also criticised the police for asserting that their role was limited to investigating complaints, rather than taking proactive measures.

“The answer, it seems to me, is plain enough: wrest control of the clinics from the hands of the vigilantes, or show that it is beyond the capacity of the police — assisted, where necessary, by the other state respondents — to do so. Once that is done, the police will have discharged their responsibilities,” he wrote.

Foster Mohale, spokesperson for the National Department of Health, told the Independent on Saturday that authorities would work with other state entities to ensure that access to public clinics is not obstructed.

“No unauthorised person may obstruct or hinder physical access to this clinic or the provision of healthcare services within the clinic. Any person violating this instruction will be removed from the premises and its surroundings and reported to the police,” he said.

Constitutional law expert Dr Suhayfa Bhamjee noted that, while the case initially appeared limited to two clinics, it carried far-reaching implications.

“In reality, it is a stark reminder that the constitutional promise of healthcare for all is under siege, and that government inertia can be as dangerous as vigilante violence,” she said. The court ruled that the actions were unlawful, discriminatory, and “a direct attack on the right to health enshrined in Section 27 of the Constitution”.

Dr Bhamjee added that Judge Wilson’s order compels the City of Johannesburg, Gauteng health authorities, national health officials, and SAPS to act “immediately and decisively”.

“While the interim order applies only to two clinics, the reasoning applies everywhere. The Constitution does not stop at provincial borders. Nor does the National Health Act, which obliges both the Minister of Health and provincial departments to remove barriers to access. Provinces cannot shrug off these duties or hide behind service-level agreements. The court made that crystal clear.”

She warned that similar court orders would likely follow if blockades occurred elsewhere.

“Provinces that fail to act could face urgent litigation, structural interdicts, and hefty cost orders. The judgment sets a persuasive precedent that will shape policy and policing nationwide.”

She said provincial health departments must audit clinics, train security staff, and coordinate with SAPS to prevent discrimination.

“Waiting for a crisis or a court order is not an option,” she said.

Dr Bhamjee further stated that the ruling revealed weaknesses in the state’s response to xenophobic violence. As Judge Wilson observed, “It is a great pity that litigation was required” to enforce what should have been a basic government responsibility.

Dr Raymond Perrier, director of the Dennis Hurley Centre in Durban, welcomed the ruling. He said that, following months of illegal protests — during which hundreds of South Africans and foreign nationals fell ill and some died — the court’s injunctions now legally oblige the police and Department of Health to act.

“As Judge Wilson points out, it is a source of shame that government officials need to be forced by the courts to do their job. But now there can be no excuse. The police must stop the illegal protests at Addington and elsewhere. And the CEO of Addington, and other health managers, must act decisively to ensure all patients have equal access to healthcare.”

Earlier this year, during a blockade at Addington Hospital, Perrier and public health expert Professor Salim Abdool Karim visited the facility to witness the situation firsthand and were themselves harassed by protestors.

Perrier said the number of patients at the Dennis Hurley Centre has nearly doubled since the onset of the crisis.

“I think it’s helpful for people to know that patients are not being abandoned. But it’s costing us a huge amount of money to keep people alive — which is fine, that’s what we’re here for — but it shouldn’t be as a result of illegal protests. We normally see 2,000 consultations a month. In October and November, we saw 3,400 each month,” he said.

The centre is currently running a deficit of nearly R700,000 and has been forced to draw on reserves to fund staffing and additional medicines.

“Because of medicines we’re buying — like insulin and hypertension drugs — we’ve never had to purchase before. If people are angry and want to do something about it, one way is to give us money, because we are doing the job the Department of Health should be doing, and it’s outrageous,” Perrier said.

IOL