Looking back to look forward: the next 21 years of the Constitution

By Mark Heywood

On 10 December 2017 the Constitution Hill Trust marked the 21 years since the signing of our Constitution by holding a lekgotla in the foyer of the Constitutional Court. Present were a rare combination of judges, former judges, lawyers (past present and future), politicians, activists and school children. On a stormy Highveld afternoon, in the shadow of the Johannesburg version of the Arch for the Arch, they debated the achievements and failings of the Constitution, as well as our relationship with it. Below is an edited version of comments made by Mark Heywood, the Director of SECTION27.

December 10th 2017 marks the 21st anniversary of the signing by Nelson Mandela of our Constitution. Today we come of age as a constitutional democracy, and I am grateful to the organisers of this event for creating an opportunity to reflect on the Constitution in a dignified way and in this most appropriate setting. It is a privilege to be part of a panel that includes living heroes like Justice Albie Sachs, whose passion and vision helped shape the Constitution, and Shaeera Kalla, a respected student leader from FeesMustFall, a movement whose demands will test whether the Constitution can live up to its promise “to free the potential of each person.”

My few words today are drawn from my experience as a social justice activist (once upon a time we called ourselves “socialists”) over the last 20 years. They will reflect on two themes that have struck me from my experience of using the Constitution. These are:

  1. The sense of dignity and power that is felt by people who are poor and oppressed when they use the Constitution to assert rights;
  2. The power that is latent within the Constitution and the constitutional scheme to bring about far-reaching change in South Africa; a power we must still recognize and use.

To illustrate what I mean I will talk mainly about the litigation brought by the Treatment Action Campaign (TAC), 17 years ago, to compel the government to provide access to anti-retroviral medicines to prevent mother to child HIV transmission.

I believe that this case, and the campaign that triggered it, is one of the greatest vindications of the Constitution – it is tangible and tested (as opposed to bookish and theorised) evidence of the Constitution’s power to alter lives for the better.

But before I talk about the ‘macro’-power of the Constitution I want to talk about the impact I have observed that it can have on individuals.


I came to the Constitution through the HIV/AIDS epidemic.

In the early 1990s, at the very same time as the Constitution’s drafters were fashioning a template for a post-apartheid society based on equality and dignity, HIV had another plan entirely. Silently and unacknowledged this virus was rapidly accelerating its progress through vulnerable and poor people in our country – the same people who had the most to gain from freedom – and laying new foundations for disease, discrimination and death.

In the 1990s and most of the 2000s, before the advent of anti-retroviral treatment, HIV used to announce its presence in the way it stripped people of their dignity. This happened on three levels:

  • Firstly, there was the Internal stigma and loss of self-esteem – people fell into the trap of believing that there was something shameful and aberrant about being infected with HIV. HIV was felt as a stigma, a marker, in the purest sense of the word;
  • Then there was the undignifying experience of prolonged and debilitating ill-health as HIV was left untreated for most people;
  • And finally there was the unfair discrimination, often by big companies.

However, as we began to use the Constitution as a legal counter to acts of discrimination I witnessed how invoking the Constitution often brought about a restoration of dignity for a person. I first witnessed this in case we called “A vs SAA”, which eventually reached the Constitutional Court in 2000 and became known as Hoffman v SAA.

‘A’ was a young black man, flush with our new found freedom. Yet when I first met him, he was broken. His dreams of freedom had been dashed by a senior manager at SAA who had heartlessly stamped “HIV +” — and thus considered unfit for employment — on his otherwise successful application to be a cabin attendant. But as ‘A’ fought back and learnt about his rights under the Constitution, learnt that avenues existed especially for people like him – victims of the abuse of power – I saw the restoration of self-belief.

Eventually the Constitutional Court declared that condemning someone to “economic death” because they had HIV was unlawful. Over the following years tens of thousands more people benefitted from this prohibition on HIV related discrimination.

For the first time the court talked about Ubuntu.

But my most abiding memory of this process of restoration is of one of the activists in the TAC case, Sarah Hlalele.

My first meeting with Sarah was at her uncle’s small matchbox house in Sharpeville. I had been told her sad story by a member of a support group and drove out to enlist her to the TAC case. When I was ushered into the house I found her sobbing, huddled against the wall in a corner of a room, eating out of a pot (because the family would not allow her to use the normal kitchen utensils). Sarah was afraid of herself and the people around her.

Over the next year though Sarah joined TAC and many other young women with HIV to assert their constitutional rights on marches, in meetings and in the courts. By December 2001, when we won our first judgment, she was a different woman: dressed smartly, in her “HIV positive T-shirt”, openly living with HIV. Talking to the media.



I have seen mobilization for the rights in the constitutional and litigation (in that order) take many, many other people along the same journey. I have seen how the Constitution, without fail, once explained, invests oppressed people with a feeling of dignity, autonomy and then agency.

I have seen this in transformation in thousands of people with HIV; amongst people with disabilities in the far corners of the Umkhanyakude district in KZN; in the mother and father of Michael Komape; and most recently in the bereaved families of the victims of the Life Esidimeni disaster.

That is why I insist that one of the greatest powers of the Constitution is the sense of dignity and worth it should bestow on “everyone” –  that poverty and inequality is not our lot.

We have rights.

We are entitled to something better.


I believe the Constitution gives us each power. If we do not use that power it is not the fault of the Constitution, but our own fault.

For me, the clearest example that there is a causal relationship between the tangible advance of rights and a mobilization to demand rights that culminates in litigation remains the TAC case.

The facts speak for themselves: when we commenced litigation in August 2001 25% of mothers with HIV gave birth to HIV+ children; 70,000 infants died of AIDS every year. Cruel preventable deaths.

16 years later, as a result of a nationwide roll-out of anti-retroviral medicines ordered by the Court and enforced by TAC on the ground, less than 2% of pregnancies of HIV positive mums lead to infection of the baby and there are less that 5,000 deaths of infants per annum!

But the TAC case was not just about the many thousands of lives saved. It created immeasurable hope. The momentum garnered by that started mobilisation led to a huge infusion of resources into the health system. Although TAC never had need to come back to the Constitutional Court on the question of access to treatment it used its victory to inspire and animate every campaign it has conducted since then.

Every TAC activist is a constitutional rights activist.

Today access to treatment for HIV is the only issue in our country where social justice and equality can be said to exist; the over four million people receiving ARVs and care through the public health system can attest to that.

In this regard, I must say a special thank you to Albie Sachs and the judges of the Constitutional Court for your principle and bravery in that case. As is happening again now, as you are compelled to enunciate and protect constitutional principles related to the NPA and other crucial organs of state, you were under extreme political pressure and sometimes threat, but you did the right thing.


I am bound, unfortunately, to end on a more somber note. It is a pity that in the annals of jurisprudence the TAC case is as isolated as it is. It’s a proof of concept, but it’s a slender and vulnerable one.

The problem is that tangible evidence of the transformative power of the Constitution can be found in only a few areas of life; very rarely do the people who most need the Constitution as a shield or a sword feel its power. There are vast areas of public life that need the Constitution blown through them. I think of

  • The crisis in basic education that is condemning another generation of young people to failure and marginalization;
  • The stunted malnourished children and the 12 million people who feel hunger daily;
  • The inequality that persists in race.

So, as we celebrate the Constitution we must never forget that it is people-made….so it’s not eternal. It wasn’t easily created … but it can be swept aside easily.

In my view its ability to age and survive another 21 years depends on two things in particular:

  1. Mass, meaningful campaigns to create constitutional literacy amongst ordinary people;
  2. Much much wider access to affordable and quality legal services than exists now, so that people are able to challenge rights violations and insist that the state fulfills its mandate to bring about equality and social justice.

Both can be achieved, and I have ideas about how, but that’s a discussion for another day.



Spotlight on TAC Provinces

The Treatment Action Campaign (TAC) reports for Spotlight on some of
its recent work in the seven provinces where TAC has branches and
provincial structures.


Following heavy rains in May, a malaria outbreak hit Limpopo. Clinics and other primary health facilities did not have enough testing kits or malaria treatment to deal with the outbreak.

Patients were therefore being transferred to Nkhensani Hospital. As there were too few beds, patients at the hospital were being admitted only to be left in an undignified condition on the floors of the wards. Immediately, TAC Limpopo organised a meeting with the CEO and Communications Manager of the hospital to address our concerns. The hospital acknowledged the challenges; in the interim, they erected tents to deal with the influx of patients. TAC Limpopo was not satisfied with this action, and escalated the matter. We wanted to know what the provincial department’s plan would be to resolve this crisis. Soon after engagement with the office of the MEC of Health, Dr Phophi Ramathuba, testing kits and malaria treatment were delivered to most of the facilities that were relieving the burden on the hospital.

In July, Mopani district in Limpopo was facing a shortage of HIV-testing kits. After many calls from members of the public who had been unable to take an HIV test, TAC Limpopo intervened. Following a snap survey, TAC members found that the following health facilities had either very few, or no testing kits at all: 1) Vyeboom Clinic; 2) Basani Clinic; 3) Hlaneki Clinic; 4) Ratanang Clinic; 5) Xivulani Clinic; 6) Mapayeni Clinic; 7) Khujwana Clinic; 8) Giyani Health Centre; 9) Nkhensani Hospital; 10) Thomo Clinic; 11) Dzumeri Health Centre; and 12) Ratanang Clinic. Knowing their HIV status is the most important thing people can do to protect their own health and avoid the spread of HIV, meaning that the shortage was a crisis for the HIV response in the area.

After hearing and validating the complaints, TAC Limpopo escalated the matter to the District Health Department and the Office of the Mayor. The official response from government was that the supplier’s tender had come to an end, and they had failed to calculate the risks and put measures in place to avoid a stockout. Following TAC’s intervention, limited stock was quickly delivered to Giyani Health Centre, Nkhensani Hospital, and Thomo Clinic. Shortly afterwards, TAC Limpopo received a call from Giyani Health Centre extending their gratitude for our intervention in the matter. The situation must be resolved urgently at the other facilities, to ensure that HIV testing can resume.


In May, it came to light that KwaZulu-Natal’s healthcare services are in a state of emergency, with shocking details shared by health workers in the province.

Reports reflected a collapsing health system which is in many cases no longer delivering adequate healthcare to the most vulnerable. Hospitals are experiencing shortages of life-saving medicines and equipment, and suffering through departments that are entirely depleted of staff. Major delays for treatment and care continue to be felt in oncology and various other departments. In June, TAC KZN met with MEC of Health Dr Sibongiseni Dhlomo, and raised these issues. In response, the MEC complained of cost cutting and budget cuts by the provincial Treasury. The response of the MEC failed to alleviate the concerns of TAC KZN. A suitable turnaround plan must urgently be put in place by the MEC, or TAC will be forced to escalate our advocacy around this crisis. The Provincial Congress will discuss and resolve a way forward. TAC will work with SECTION27, the South African Medical Association (SAMA), and the South African Human Rights Commission on this matter.

In July, TAC KZN welcomed the announcement that the University of Zululand would provide HIV treatment to students and staff on campus. If implemented effectively, this should provide an easier and quicker system for young people and staff at the university to collect their ARVs, and therefore ensure better treatment adherence. Making medicines more accessible will benefit the health of all people living with HIV on campus. The evidence is clear that earlier treatment reduces serious adverse events, such as TB and various cancers. Adhering properly to HIV treatment is critical to staying healthy. Additionally, this will also help prevent many new HIV infections. Studies show that people who are stable on treatment with undetectable viral loads are highly unlikely to transmit HIV to their sexual partners.

The dysfunction in the public healthcare system creates its own challenges for people to remain adherent. The reality is that our clinics are in crisis. People must wait in long queues for hours to get their HIV treatment. Sometimes medicine stockouts or shortages mean people leave empty-handed. This forces people to default, and puts their health and lives at risk. Students must take the decision to miss classes in order to wait at the clinic; those staying in residence must travel home to collect their treatment. Our rights to health and education are in conflict. Providing medicines on campus will not only promote better adherence for students and staff at the university; it will also relieve the burden on health facilities that are already stretched to capacity. Given the increasing uptake of HIV treatment through ‘Universal Test and Treat’, this burden will only grow.

Since 2016, TAC KZN has been working on a campaign to ‘Help Teens Protect Themselves’. Through our engagements with the MEC of Health and the MEC of Education, and in the KZN Provincial AIDS Council, TAC KZN has been advocating for better access to prevention methods, the roll-out of prevention and treatment literacy training, and easier access to treatment, including on campuses. Both MECs made a clear commitment to improve youth-targeted HIV interventions. Now it is important for TAC KZN to monitor the roll-out. Treatment accessibility must be coupled with counselling and adherence support on campus. We also urge the University of Zululand to provide easy access to preventative measures such as male and female condoms, as well as pre-exposure prophylaxis (PrEP). PrEP aimed at youth and the general population may have an important role to play in reducing new infections. Further, and critically, measures must be put in place to prevent the disclosure of people’s HIV status on campus, which would cause unnecessary stigma and discrimination. For instance, people should not be forced to enter buildings reserved only for collecting HIV medicines, and their clinic files must not be colour-coded or marked to show their status. TAC KZN will monitor the roll-out and advocate for other campuses to adopt this approach.


“Police in Ermelo used to assault, insult and arrest us often,” says Boitumelo*, a sex worker from Mpumalanga. 

“They would arrive at our houses, kick stuff, call us names, beat us. They would confiscate our medications (including HIV treatment), destroy our foods, ruin our furniture, even take our condoms. And after they had arrested us, we would spend the entire weekend in the dirty, smelly, and cold cell. Sometimes we would be released on the Monday with R500 each. Then we would appear in court where eventually the charges would be dropped.”

Boitumelo and other sex workers in the Ermelo area have been victimised by the police for years. After a chance meeting in the mall with a member of NAPWA – who happened to be wearing a T-shirt saying ‘sex work is work’ – Boitumelo and other sex workers were soon introduced to TAC Mpumalanga. In late 2015, TAC facilitated a safe-space workshop where an advocate from the Women’s Legal Centre promised to represent the sex workers in case of further arrests.

“It was here that we started to feel safe and confident to talk,” Boitumelo continues. “It wasn’t long before we got arrested again, in December. We were told to be in court on 4 December. The advocate came to represent us and TAC members were there in numbers supporting us. We had done nothing wrong. We were sleeping when the police kicked down the doors. We were just sitting inside the house. The case was withdrawn on the day.”

TAC assisted in mobilising other sex workers and members of the LGBTQIA+ community to support us on 10 December in marching to the police station, to demand an end to the police harassment. “We walked through the township singing and holding placards. We were about 300 in total, wearing our mini- skirts and high heels,” remembers Boitumelo. “Police used to say we were whores because we are dressed in mini-skirts and that is why we wore it on the day. We wanted them to arrest us officially on this day; but instead, police came to escort us – after refusing to give us permission to hold the march.”

After this, the harassment and arrests did not stop.

TAC and partners escalated the matter to the MEC of Health, Gillion Mashego. They wrote to the MEC and the Brigadier of the SAPS to demand a meeting. The police had previously refused to meet, but engaged once the MEC was involved. In the meeting, after hearing the issues, the MEC demanded that the police stop harassing the sex workers and stop taking their condoms and medications. While the police tried to deny all that the sex workers said, photographs of beaten bodies, destroyed homes, and medications thrown on the floor, shocked the attendees of the meeting. The MEC instructed the police to engage with all departments and ensure that the victimisation and harassment would finally end.

“Since October 2016 we have not had problems with police. Since the police vans are no longer coming to our place, even clients come freely, and business has been better. Now I can at least send some money to my kids.”

Since last year, KwaMhlanga Hospital in Mpumalanga has been facing a severe crisis. A shortage of staff meant that doctors in the facility repeatedly went on strike. They were overworked, without the people-power to attend to all those in need of medical care. The maternity ward was overcrowded. Women would deliver their babies, after which they would be moved to a chair to sit for six hours observation, and then be sent home. Bloody and wet sheets would remain, as the next to give birth would occupy them. The nurses had no gloves or gowns; their clothes were dirty from delivering babies. The intensive care unit (ICU) was empty – no furniture, beds, or medical equipment; an abandoned, empty space. Conditions were untenable. At the district People’s Health Assembly organised by TAC in 2016, many complaints of poor service at KwaMhlanga were made, with members of the District Health Department in attendance: reports of people dying unnecessarily; people waiting months for simple procedures. The situation was so bad that even the National Portfolio Committee on Health visited the province and gave a damning report, which lead to the notorious threats made against MP Dr Makhosi Khoza.

TAC Mpumalanga met with the Hospital CEO to raise the various challenges that had been reported to us. The matter was escalated to the District Health Department, and then the Provincial Health Department. A meeting with Gillion Mashego, the MEC of Health, led to the removal of the CEO. An interim CEO was appointed in February 2017, after which the hospital received an injection of two million rand. The maternity ward was extended into a portion of the ICU to relieve the burden on the overcrowded ward, and a new position to manage this maternity ward has been advertised. The interim CEO visited hospitals in the North West to benchmark and gain guidance as to how to turn the crisis around. Some stability has finally been found. TAC will monitor the situation, and continue engaging with the new MEC.

* Not her real name – changed to protect her identity.

Western Cape

For a long time, TAC Western Cape received complaints about Michael Mapongwana Community Health Clinic in Khayelitsha.

Parents with children and babies would be seen in a container at the back of the clinic. They would wait outside for long periods, whatever the weather conditions, to be attended to by health workers. They would have to undress their children outside because of a lack of space on the inside. Children with illnesses shared the same space with those attending post-natal check-ups. Late last year, TAC Western Cape held a picket outside the clinic, and met with the Health Department to address these concerns. Finally, in February 2017, following pressure from TAC, a new structure was opened that could accommodate the children in a dignified and appropriate manner.

Eastern Cape

Since 2016, TAC Eastern Cape had received numerous complaints from the Clinic Committee and community members fearful of accessing health services at Philani Clinic. Mostly this was due to the bad attitude and lack of respect shown to patients by one of the nurses.

This nurse had repeatedly and publicly disclosed people’s HIV status and other health conditions without their consent. The situation had left community members not wanting to use the clinic at all.

While the Mayor had proposed suspending the nurse in question pending a disciplinary hearing, the Sub-District Health Manager undermined this decision. The community were understandably angry at the change. In April 2017 they shut the clinic down in protest, locking its gates until the matter was resolved. According to the community, the clinic would only be reopened given the removal of the nurse. This meant no-one could access services at all. Worryingly, TB and drug-resistant TB patients in the area could not undergo treatment reviews, as their folders were locked inside the clinic. They had no option but to use another facility, given that the nearest TB hospital is 350km away.

TAC Eastern Cape and the Queenstown Council of Churches urgently mobilised the Clinic Committee, community organisations, churches and partners in the area to meet in Queenstown and come up with a strategy to re-open the clinic, to ensure people could access health care. TAC met with MEC of Health Phumza Dyantyi and Clinic Committee members to demand a way forward. After this pressure, the clinic was re-opened in June 2017, and the nurse was removed. While one battle was won, the clinic is now understaffed, with one nurse being dismissed and one more resigning. TAC Eastern Cape will continue to demand that the vacant posts are filled urgently.

Free State

TAC Free State hears many complaints of medical negligence, and endeavours to assist people in getting the healthcare they need and deserve. One incident in Botshabelo involved Samuel Selebedi, who was bleeding profusely after falling onto a glass bottle.

After attending the clinic, he was rushed to Botshabelo Hospital. A painful surgery was conducted to stitch the bleeding arm, but doctors failed to remove the glass that had been lodged inside. No X-ray was taken. Mr Selebedi was sent home. Two months later, he faced complications. When he returned to Botshabelo Hospital, no-one attended to him. He then visited a private health practitioner, who was the first person able to explain what had gone wrong. The doctor advised him to return to the hospital, to demand surgery to remove the glass from his arm. At this point, TAC Free State were contacted for support. TAC Free State accompanied Mr Selebedi to the hospital, supporting him to advocate for his right to health. The matter was escalated to the CEO of the hospital. Finally, a thorough surgery took place, and the glass was removed. TAC Free State will continue to support Mr Selebedi as he raises a case of medical negligence against the hospital, and will hold the CEO to account in ensuring no other cases of negligence occur.

In a landmark judgment in November 2016, with important implications for the right to protest in South Africa, the Bloemfontein High Court set aside the convictions and sentences of the 94 community healthcare workers (CHWs) known as the #BopheloHouse94. This finally brought to an end the state’s callous and vindictive persecution of this courageous group of mostly elderly women.

The #BopheloHouse94 are CHWs from across the Free State. They were arrested in June 2014 at a peaceful night vigil at Bophelo House, the headquarters of the Free State Health Department. They were protesting the collapse of the Free State public healthcare system, and the April 2014 decision of then MEC of Health, Dr Benny Malakoane, to dismiss without warning or cause approximately 3 000 CHWs in the province. Malakoane has recently been removed as MEC of Health.

Since the judgment, TAC Free State has been engaging with the new MEC of Health, Butana Komphela. Not only have they been advocating for the turnaround of the broken public healthcare system, they also advocated for the reinstatement of the CHWs. A Memorandum of Understanding is in development that will ensure that TAC branches in Free State can work better with clinics to ensure a functioning health system. Furthermore, a plan to reinstate the CHWs is in motion. Phase one will be the re-hiring of those in the case, with phase two seeing a bigger expansion of the programme. TAC Free State will meet with the MEC quarterly, and continue to monitor the state of health care in the province.


In March, community members phoned TAC Gauteng outraged and concerned after watching a white pick-up truck dump medical waste near the taxi rank in Mamelodi. Tablets, capsules, loose powder, syringes, pregnancy tests, HIV tests and office papers were strewn across the ground.

When TAC Gauteng arrived on the scene, a child was playing in the waste. Residents informed them that some of the powder and syringes had been taken by those passing by. A steady stream of people were passing by. It was not safe to leave the waste unattended. TAC Gauteng found business cards among the waste from a company called Jade Pharmaceutical Enterprises. After calling the company they were told it had closed a year earlier – the woman on the phone tried to tell them that the waste was not harmful. When they called back a second time, they were told conflicting information – that the company had closed in 2013. Calls to the police and the local counsellor landed on deaf ears. Messages were sent to the MEC of Health to intervene urgently. The local municipality was contacted. TAC Gauteng remained on the scene from the afternoon until midnight. To protect their own safety they left, returning at 4am when residents would begin to pass by in the morning. Eventually, after pressure from TAC Gauteng, the local municipality made arrangements for someone to take over from TAC in guarding the waste – and another company was hired to remove the waste entirely.

In March, TAC Gauteng was alarmed at the collapse of an entrance to the Charlotte Maxeke Hospital in Johannesburg. A hospital should be a place of safety and shelter, not a place where people are hurt. TAC Gauteng were unequivocal that urgent steps needed to be taken by MEC of Health Gwen Ramokgopa to audit the infrastructure all Gauteng health facilities, and ensure this does not happen again.

TAC Gauteng launched a fact-finding mission into the state of hospitals across the province. Not only are they monitoring the state of the infrastructure but also the state of service delivery. Are there enough doctors, nurses, porters and security guards? Are people sent home without medicines? How long must people wait to be seen in these facilities? Are the facilities clean? Are there enough beds? Do people get the service they need?

On 16 March, TAC Gauteng met with MEC Ramokgopa for the first time. They are committed to engaging with her constructively to bring an end to the crisis in the public healthcare system. In addition to other issues, they raised concerns over the state of facilities. They urged MEC Ramokgopa to undertake an urgent audit of health facilities across the province, the results of which must be made public, together with a plan to address any failings. The department must strengthen the Infrastructure Unit (in conjunction with the Department of Public Works) to address backlog maintenance, routine maintenance and the building of new health facilities – as well as ensuring better monitoring and oversight of material procurement processes – in order to prevent any further disasters in our health facilities.

Since 2012, TAC Gauteng have been raising concerns about the dire state of health facility infrastructure in the province. A report issued by TAC and SECTION27 at the time highlighted issues including the poor condition of buildings, power failures, the lack of safety features, potholes, and the non-functioning lifts; and the impact of these failures on the provision of healthcare. As recently as last September, TAC Gauteng picketed outside Thelle Mogoerane Hospital in Vosloorus, noting – among other issues – cracks and leaks in the hospital building that have yet to be addressed. Another picket took place at Pholosong Hospital in Tsakane, which is also in disrepair.

Especially alarming were reports that doctors at Charlotte Maxeke Hospital have been complaining for years about the structural problems. Even worse is that they felt the need to remain anonymous in making these reports. In our meeting, we urged MEC Ramokgopa to ensure a new era of openness, engagement and accountability from the provincial health department. No healthcare worker should fear victimisation or lack of job security as a result of speaking out. In order to ensure better communication flows, accountability structures such as hospital boards and clinic committees should be fully functional, to ensure the concerns of health workers and community members are addressed effectively. A system should be established to take management teams out of their offices and into the community to listen to the needs of the people on a regular basis.

Proper maintenance of existing infrastructure and the development of more suitable infrastructure is essential to ensure safety, suitability, cleanliness and the proper functioning of facilities across the province. While Treasury may cut the health facility revitalisation grant, the onus is on MEC Ramokgopa to ensure enough money is put towards maintenance projects through the equitable share. National cuts must not impact negatively on the quality of our health facilities.

Round-up of responses to SA’s new AIDS/TB plan

By Staff writer

On Friday 31 March 2017 South Africa’s National Strategic Plan (NSP) for HIV, TB an STIs 2017 – 2022 was launched in Mangaung, Free State. However, as of noon on Monday 3 April the final plan has not yet been made public. Most commentary is thus based on almost-final versions of the plan and/or a summary of the plan published by the South African National AIDS Council (SANAC).

At the launch, Deputy President of South Africa and head of the South African National AIDS Council (SANAC), Cyril Ramaphosa, said that “this is a pivotal moment in our fight against the epidemics because, despite our successes, we need to significantly expand and accelerate our efforts.” He said that the new NSP “emphasises the need for leadership participation and accountability at all levels to achieve the 90-90-90 targets.”

“We should, at minimum,” said Ramaphosa, “reach the 90-90-90 targets for HIV and TB by 2020.” He said that  “this must be the commitment of government, business, labour and every formation within civil society.”

NSP not endorsed by TAC and SECTION27

On the night of March 30, lobby groups the Treatment Action Campaign (TAC) and SECTION27 released a joint media statement in which they said that they cannot endorse the NSP in its current form. They argued that the NSP falls short in four areas: lack of accountability, human resources, funding, and the NSP’s “weakness” on a number of specific issues – of which they identified access to condoms in schools and the decriminalization of sex work as key examples.

TAC and SECTION27 did however indicate that they would consider endorsing the NSP should certain additional implementation plans be developed and costed. Amongst others, they wish to see an addendum giving detailed guidance to provinces on NSP implementation, an addendum that sets out the additional human resources required to implement the interventions identified in the NSP, and a full costing of the NSP and a realistic assessment of where the needed funds will be found.

The two groups also indicated that they are “deeply concerned” by what they describe as the “ongoing governance crisis at SANAC”. “Serious questions about governance at SANAC remains unanswered despite various letters from TAC and meetings with key individuals,” the statement read. “We are particularly concerned by the lax way in which SANAC has handled conflicts of interest and the process of appointing a new CEO.”

Comment from MSF, RHAP, Sonke and others

Previously, writing on Spotlight, Julia Hill of Medecins Sans Frontieres (MSF) argued that we need to take the NSP to local, community level otherwise we only have a “pie-in-the-sky document” which makes it difficult for communities most affected by HIV and TB to hold to account AIDS Council governance structures and government departments. National success, she says,  depends on smaller programmatic successes at district, sub-district, and service provision level. Monitoring and evaluation (M&E) standards must therefore be put in place at these system levels to ensure people are able to access services intended to lead to achievement. In this regard, she argued, the NSP falls short.

Russell Rensburg of The Rural Health Advocacy Project (RHAP), also writing on Spotlight,  pointed out that what makes a good plan is a plan that promotes equity and a plan that is informed by the people most affected. “A good plan is a plan that we know will be implemented due to robust accountability mechanisms. These in our view are the Achilles’ heels of the new NSP.”

He cautioned that the reality is that the NSP kicks off at a time when resources for health are diminishing, a weak currency is contributing to significant increases in drug prices, and there is a deepening crisis in human resources because resources are insufficient to meet basic HR needs. The system is close to collapse. He also called for a “strong SANAC that can lead, direct and accelerate the response. Rather damningly, they conclude that, “We fear SANAC in its current state does not meet this muster.”

Ariane Nevin of Sonke Gender Justice and Thulani Ndlovu of Zonk’izizwe Odds Development wrote that the first draft of the NSP, released in November 2016, was cause for some jubilation for prisoners’ rights activists, for the first time including inmates as an HIV key population and incorporating important human rights language and interventions for prisons. However, they celebrated too soon, as two drafts later, following “a far from transparent or inclusive political process”, the prison-focused language has been markedly stripped down. Although inmates remain a key population for both HIV and TB, and recipients of a core package of services targeting key populations, the NSP is missing interventions directed at addressing the causes of the TB and HIV epidemics in prisons: insufficient infection control, non-implementation of the Policy to Prevent Sexual Abuse of Inmates, dismal levels of overcrowding , inadequate ventilation, and insufficient re-integration support or linkage to care for ex-inmates upon release, to list but a few.

Marlise Richter, of Sonke Gender Justice, and Thuli Khozaof and Katlego Rasebitseof the SANAC Sex Work sector, writing in Spotlight,  also highlight the “tricky” drafting process of the NSP.  They made the case for a much more robust section on the structural factors that impact on sex work. These include a strong call for the decriminalisation of sex work with clear indicators, the elimination of the police practice of ‘Condoms as Evidence’, removing ideology-based funding restrictions and including a migration focus.

Sasha Stevenson of SECTION27 argued that the NSP offers promising statements on human resources for health in general, and community health workers in particular, but that the question is how far the new NSP goes in advancing the discussion around and demand for the development and integration of community health workers as a vital cadre of health care worker for the implementation of the NSP and strengthening of the health care system. The answer, unfortunately, she says, is “not far enough”.

NOTE: Spotlight is published by the TAC and SECTION27 – both of which are mentioned in this article. The editorial team has however been given editorial independence – which we guard jealously.

Towards a workable plan

By Vuyokazi Gonyela, SECTION27

A key ingredient to ensuring our response to the AIDS and TB epidemics is effective, is having a workable plan. To that end, consultants and experts are working furiously to make sure South Africa has a new National Strategic Plan (NSP) to take us through to 2022.

But we know what is said about South Africa and our plans and policies: Full marks for great plans and policies; fail for implementation. The involvement of civil society is a critical component of a

The involvement of civil society is a critical component of a workable plan.
The involvement of civil society is a critical component of a workable plan.

workable plan. Established civil society structures already exist within the various AIDS councils at national, provincial and municipal (local or community) level but there is an unequal distribution of resources from the councils to these structures, which, in turn, means they struggle to get work done and to participate meaningfully in processes.

South Africa’s response to the HIV/AIDS, TB and Sexually Transmitted Infections (STI) epidemics requires coordination and leadership from various accountability structures, including the South African National AIDS Council (SANAC). This body hosts the National Civil Society Forum (CSF), which monitors progress on the implementation of the NSP and holds government accountable on behalf of the users and practitioners in the health-care system.

Theoretically, national structures that manage the HIV/AIDS TB and STI response should function in a manner that provides both leadership and support to provincial and local structures. But, provincial and local bodies need to be just as empowered to hold the government accountable – even more so – on behalf of the health-care users on the ground.

Despite this theoretical commitment to the development and strengthening of provincial structures, little has been done to provide these structures with the resources and authority that they need.

In provinces like the Eastern Cape, the struggles and difficulties are clearly visible. The province has struggled to implement strategies to respond to HIV/AIDS, which has left the community at a great disadvantage. Among the factors that impact negatively on the work to be done, is poor leadership. In the Eastern Cape, for example, the former elected CSF chairperson was last seen in 2015. This critical position was left unattended because the leader had other interests that compromised, not only the forum, but the entire provincial mandate.

The intervention campaign and strategies also need to adapt and respond to new data. Recent statistics indicate that the prevalence of HIV/AIDS has shifted from adolescents to young women and girls: the stats show about 2,363 new infections weekly in South Africa, with AYWG accounting for almost 1,750 of these infections.

The goal to end HIV/AIDS by 2030 is far from being realised, particularly because there is little investment in developing young leaders and creating more active citizens. They have a big role to pay and are central in our response to HIV if we truly want to deliver on the rhetoric of ending AIDS.

A further concern is that women are grossly under-represented within provincial leadership sectors tackling HIV. Across the nine provinces, the leadership is mainly dominated by men. Provincial CSF chairpersons sit on the Provincial Councils on AIDS as co-chairpersons; seven of the nine provincial chairs are male. The Eastern Cape took a bold stand in September 2016 and elected the first woman as a CSF chairperson. No attention is paid to this.

The voices of many women are suppressed in their households, communities and in leadership structures. Provincial AIDS structures need to take the lead, transform themselves, and support capacity-building female leadership as a critical investment, not only for the provinces but for the country. Nothing less will do.

A new coalition for people-centred health care

By Ufrieda Ho

Two specific issues emerged as priorities for Gauteng from the Provincial Health Assembly this year: migration and mental health.

Migration has always been part of human behaviour, moving to and from places for better opportunities or to flee harsh, untenable living conditions. The challenge of managing health care in the context of migration, though, can be complicated. Undocumented individuals who have no medical records, or are suspicious of anything associated with the state, remain highly vulnerable and they are prone to fall through the cracks. There can also be language and cultural barriers and a state of perpetual transience that makes sticking to health-care regimes or follow-up medical checks difficult for patients.

Gauteng is also subjected to xenophobia directed at those who are seen as outsiders taking up scarce resources in the economic heart of South Africa, which makes managing migration a heightened priority for the province.

But it’s mental health issues that have come into sharp focus for the province, brought into the open with news breaking in September that 36 psychiatric patients, who were among 1,300 patients relocated from Life Esidimeni facilities to NGOs, had died. Life Esidimeni, a subsidiary of the Life Healthcare Group, cared for indigent patients, and were part of a public/private partnership that worked under contract to national and provincial health departments.

The patients who were reported dead, died within three months of the MEC for Health’s decision to end her department’s contract with Life Esidimeni. She said that the facilities were too expensive.

SECTION27 has represented The South African Depression and Anxiety Group (SADAG), the South African Society of Psychiatrists, SA Federation for Mental Health, and a number of families since last year, when the decision was taken to relocate the patients. SECTION27 believes the number of reported deaths is an underestimate.

‛Besides not having accurate records of where users are or which users have died, it does not include deaths at home or in other hospitals (SECTION27 is aware of at least one death in each of these categories,’ it was stated in an open letter to the MEC, dated 22 September. The letter is signed by SECTION27, the TAC, SADAG‚ the People’s Health Movement-South Africa‚ the Public Health Association of South Africa and the Junior Public Health Association of South Africa.

The crisis around mental health has spurred the revitalisation of a new coalition seeking to

Brainstorming at the Provincial Health Assembly on mental health and migration.
Brainstorming at the Provincial Health Assembly on mental health and migration.

revitalise the Gauteng People’s Health Movement (PHM). The PHM is a global network that draws together grassroots health activists, civil society organisations and those representing academic institutions. The PHM promotes health care that is guided by the People’s Charter for Health and is meant to present an alternative to health-care models that are not meeting the needs of society’s most vulnerable members.

The approach is to look for horizontal links and collaboration in health-care practices, rather than remaining stuck in a top-down, silo-approach to implementing programmes and plans.

It was this new coalition that called for a meeting with the Gauteng Health MEC, Qedani Mahlangu, in October 2016, demanding clearer answers for the families of the 36 mentally ill patients who had died. It also sought to open up channels for dialogue, communication with the Department of Health, and to hold the authorities to account.

‛What we are saying is, we want to work together with the Department but we also believe that the truth has been lost somewhere, and we are still looking for answers for the families of the patients.

‛Going forward, we want to be equal partners with the Department of Health in deciding how the treatment of high-level-needs patients can be met,’ says Shehnaz Munsi, an occupational therapist, part of the PHM and a master’s student at Wits University.

At the meeting, the MEC stated that the high costs of care, which she said had a similar price tag to intensive-care treatment at a private hospital, was what swayed the decision to relocate the patients.

Mahlangu also claimed that family members of some the patients had been ‛coached and coerced’ into slamming the Department of Health in the media. She added that other patients had been happy with the department, and had phoned her privately to express their thanks.

Mahlangu, who has come under intense scrutiny since the news broke and who been fighting off calls for her sacking, acknowledged the new coalition and committed to more regular meetings. She invited members of the coalition to accompany her and her team for unannounced inspections of the mental health facilities in the province.

The coalition has called for the current investigation into the deaths to be given terms of reference wide enough to establish the immediate and root causes of the decision to discharge patients. They have also called for an audit of the NGOs that are taking care of patients and a list of the other former Life Esidimeni patients who are being housed, with an update on their treatment plans and current health status.

The coalition is still in its infancy but Professor Laurel Baldwin-Ragavan of Wits University’s Family Medicine department, who is also part of the coalition, says the umbrella body is ‛about galvanising many people across sectors of society to apply their minds to solve complex health and social issues.’

By strengthening networks within networks, we can present a powerful force to shift the inequalities that exist in health care today, and to work on alternatives for improved models of health care that are responsive and relevant for the urgent health needs of a modern world.

Why TB and HIV community should care about the private health inquiry

In South Africa, people seek their constitutional right to access to healthcare in the public sector or the private sector, or both. Approximately 19 percent of the population or 8.8 million people use the private health sector, with the remainder relying on the limited resources in the public sector.

The public sector continues to see stockouts of essential medicines, and a shortage of adequate staff, equipment and proper infrastructure. While the private sector is better equipped to deliver healthcare services, those services are out of reach of the majority of people. The inequality in the health system in some ways reflects the inequality in our society.

In January 2014, the Competition Commission launched a far-reaching inquiry into the private health sector to understand the nature of the sector and the way it delivers healthcare services.

Ultimately, the inquiry may deliver recommendations for changes to the system that will go some way to address the inequalities.

SECTION27 has been involved in the inquiry from the very start, emphasising the need for a patient-focused inquiry. The sector is complex, involving hospital groups, manufacturers and distributors of medicines and medical devices, pharmacies, health professionals, medical aid schemes, and, of course, the regulators – the Council for Medical Schemes, Health Professions Council of South Africa and Department of Health – all of which have a public interest mandate to protect members of the public who access the private health system.

In 2011, Andaleeb Rinquest was diagnosed with XDR-TB. Andeleeb spent a lot of money on doctors and tests but could not continue to self-fund her treatment. She sought treatment in the public sector after her health had deteriorated. The treatment was unsuccessful and she was hospitalised again in 2013, in a private hospital. However, Discovery Health, her medical aid scheme, refused to pay for the full treatment of XDR-TB and sent her to the public sector to seek treatment. While treatment for XDR-TB is available in the public sector, it is limited by the high cost of the drugs. SECTION27 lodged a complaint to Discovery, alleging that the refusal to pay for her treatment was a violation of her rights. Discovery eventually paid for her treatment, in the private sector. Andeleeb completed her treatment and is in good health.

Patients living with HIV have also struggled to access treatment in the private sector. ‘ES’, a mother and teacher living with HIV from Pretoria, is a member of Genesis Medical Scheme. Her medical scheme told her to go to the public sector for treatment and to get the clinic to invoice the scheme. However, ES has not disclosed her HIV status and fears being seen collecting treatment at her community clinic. As a teacher, she must be in school early in the morning and stays late, preparing lessons and helping learners in need. She therefore has gone to a private clinic to buy her treatment and funds the entire monthly cost herself as her scheme refused to pay for treatment in the private sector. SECTION27 is also providing legal assistance to ES.

The question, however, still remains: how do the majority of patients navigate this complex system without assistance? The health inquiry is considering these kinds of barriers to access.

All schemes are obliged to pay in full for the diagnosis, treatment and care of HIV/AIDS and TB, regardless of the plan the member and their dependants are on. However, Andaleeb, ES and many others face financial hardship, debt and despair when they try to access their rights to healthcare services through the private sector. The health inquiry is, among other issues, looking at the legal framework and the ability of regulators to meet their mandate to protect all patients. The impact of the failures in the private system on access to health services in the public health system is also an important aspect of the inquiry.

In February 2016, the health inquiry will hold public hearings in which all stakeholders will participate. It is important for patient advocacy groups to participate in this inquiry to ensure that the commission is not only concerned with the complexities of the companies involved in the sector, but that the rights of those who use the system are central to the inquiry.

At the end of 2106, the commission will publish its final report, which may include recommendations for reforms to the sector. SECTION27 believes that any such recommendations must protect the rights of people in the TB and HIV community.

HIV in your province

Photo by Oupa Nkosi, courtesy of the Treatment Action Campaign Archive.


Underspending on Hospital Revitalisation Grants

Eastern Cape by R191 million (52% underspent)

KwaZulu-Natal by R228 million (full budget figure missing)

Free State by R134 million (35% underspent)

Limpopo by R89 million (27% underspent)

Northern Cape by R158 million (37% underspent)

Eastern Cape underspent its HIV/AIDS grant by R105 million and its forensic pathology budget by R14 million.

Limpopo underspent its HIV/AIDS grant by R49.5 million and its forensic pathology budget by R1.2 million.

Source: Bateman, C. ‘Will our public healthcare sector fail the NHI?’ South African Medical Journal, Vol 102, No 11 817-817, (2012).


HIV in your province

There are signs that South Africa is slowly turning the tide against the HIV epidemic. The rate of new infections seems to be declining, life expectancy is increasing, and the number of HIV-positive people receiving treatment continues to grow. However, in many of our provinces stockouts of essential medicines, shortages of health workers, corruption and poor budgeting are threatening to undo much of the progress of recent years.

Click here to see this graphic bigger.

HIV in your province

Photo by Oupa Nkosi, courtesy of the Treatment Action Campaign Archive.


Underspending on Hospital Revitalisation Grants

Eastern Cape by R191 million (52% underspent)

KwaZulu-Natal by R228 million (full budget figure missing)

Free State by R134 million (35% underspent)

Limpopo by R89 million (27% underspent)

Northern Cape by R158 million (37% underspent)

Eastern Cape underspent its HIV/AIDS grant by R105 million and its forensic pathology budget by R14 million.

Limpopo underspent its HIV/AIDS grant by R49.5 million and its forensic pathology budget by R1.2 million.

Source: Bateman, C. ‘Will our public healthcare sector fail the NHI?’ South African Medical Journal, Vol 102, No 11 817-817, (2012).


HIV in your province

There are signs that South Africa is slowly turning the tide against the HIV epidemic. The rate of new infections seems to be declining, life expectancy is increasing, and the number of HIV-positive people receiving treatment continues to grow. However, in many of our provinces stockouts of essential medicines, shortages of health workers, corruption and poor budgeting are threatening to undo much of the progress of recent years.

Click here to see this graphic bigger.