Gauteng and KwaZulu-Natal Circulars on migrants may be a sign of things to come

Opinion by Sasha Stevenson

The first few days of March 2019 must have been a time of great uncertainty for migrants in South Africa in need of health care services.

On 1 and 6 March, circulars from the Gauteng and KwaZulu-Natal Departments of Health respectively came to light. The Circulars said that all non-South Africans, other than refugees, would from now on have to pay in full for all health care services at public clinics and hospitals. Payment would be due upfront or on discharge. This was a huge change from the current legal position which assures everyone, regardless of citizenship or immigration status, free primary health care services and requires that refugees, asylum-seekers and undocumented migrants from SADC states be treated like South Africans when needing hospital care and means tested to determine their ability to pay. Pregnant and breastfeeding women and children under six are given special protection and assured free services in government facilities.

By 3 March the National Department of Health had said that it had withdrawn the national-level memo on which the Gauteng and KwaZulu-Natal Circulars were based. By the following day, Gauteng too withdrew its Circular. After various requests for clarity KwaZulu-Natal’s Acting Head of Health Dr Musa Gumede confirmed on Thursday night (7 March) that their circular had too been withdrawn (Five weeks after it had been sent).

So the question now is what this flurry of memos and circulars (and failure to clarify) says about what is happening in the National, KwaZulu-Natal and Gauteng Departments of Health. Over-eager junior officials have taken the blame for the distribution of the memo from the National Department but the Gauteng and KwaZulu-Natal Circulars are more or less in line with the approach to migrants in the NHI Bill. The sentiment didn’t come from nowhere.

The NHI Bill repeals the provision of the National Health Act that provides for free health services. It also cuts out entirely undocumented people from NHI and limits services available to refugees and asylum-seekers under NHI to emergency services, services for notifiable conditions of public health concern, and paediatric and maternal services at primary health care level. So if, as a refugee fleeing persecution in the DRC you need to give birth in a hospital or your child is seriously ill or you need ARVs, you will have to pay for them.

In this way, the NHI Bill, like the National memo and Gauteng and KwaZulu-Natal Circulars, envisage a step backwards in access to services for people who aren’t South African. This is the opposite of progressive realisation of rights – a constitutional imperative.

And so while the battle for now seems to have been won, the war is far from over. In a country with limited resources and a strained health system, there will always be pressure to cut spending. We cannot, however, do so in a way that violates constitutional rights.

Read the full SECTION27 statement here

* Sasha Stevenson is an attorney and the head of health at SECTION27