By Teri Brown and Thembi Mahlathi
The media has reported several incidents where people were turned away at public healthcare facilities because they did not possess South African identity documents. As related cases slowly grind through the courts, Teri Brown and Thembi Mahlathi of SECTION27 connect the dots between what the law says and what people are experiencing.
Over the years, many migrants and undocumented people have reached out to SECTION27, where we both work, for assistance. These were often pregnant women, lactating mothers and children under six years, who were denied access to healthcare facilities.
Initially, it was easy to simply write a letter to hospital and clinic personnel where our clients were being denied access. But as time went on, the situation got significantly worse and more migrants were being denied access to public healthcare facilities. Writing letters and asking for meetings clearly wasn’t enough anymore.
We went to court and in April 2023 got an order in which the South Gauteng High Court held that important sections of the National Health Act applies to all pregnant women, lactating women and children under the age of six years, irrespective of their documentation status. This affirmed that in South Africa, they have the right to access free healthcare services at all public health establishments, including hospitals and clinics.
Public sector hospitals and clinics are required to assess the status of migrants and then apply a lawful means test to determine the healthcare services that can be offered to them. However, this does not appear to be done routinely. Instead, particular focus is often placed on South African identity documents, while other forms of documentation held by migrants are disregarded.
There have been incidents where entry to facilities such as Rahima Moosa Mother and Child Hospital in Coronationville and South Rand Hospital in Rosettenville and several clinics across Gauteng have been denied to people, including South African nationals who have the necessary documentation.
Furthermore, we are aware that to avoid being refused healthcare and to demonstrate the urgency of their need for treatment for themselves or their kids, migrants have sometimes been forced to disclose their HIV status – information which they would otherwise have kept private.
In mid-2025, we started receiving a surge of calls from clients complaining about not being able to enter public sector clinics that they were previously assisted at. They informed us that a group of people stationed outside these clinics requested their identity documents, and when they produced their documents confirming either their refugee status or asylum seeker status, they were unlawfully prevented from entering the clinics. These group of people explicitly told them that they should go to a private clinic for treatment or go back to their home country.
Thus, two years after the April 2023 court order, the denial of access to healthcare had worsened, as it was not only women and children who could not access clinics, but anyone who could not provide South African identity documentation. The situation was also exacerbated by the fact that it wasn’t just healthcare staff denying access anymore, but vigilante groups stationed outside healthcare facilities.
Despite the crisis being widely reported, the state failed to address it effectively. We had no choice but to go back to court, and again the court found in our favour.
In December 2025, the South Gauteng High Court ordered the state to take immediate and decisive action to end the obstruction of access to public healthcare facilities in Gauteng. The case was brought by the civil society organisations the Treatment Action Campaign, Doctors Without Borders, and Kopanang Africa Against Xenophobia (the applicants), all represented by SECTION27.
In this landmark judgment, Judge Stuart Wilson concluded that the state entities tasked with upholding the constitutional mandate to safeguard everyone’s right to access healthcare had failed to prevent the obstruction of access to public health facilities. Consequently, this failure was in violation of the constitutional rights of patients seeking care at the Yeoville and Rosettenville clinics.
Despite this court order, our monitoring found ongoing vigilante activity at the two clinics. The applicants then launched an urgent contempt application, heard in March 2026, arguing that the state had failed to fully comply with Judge Wilson’s court order.
Following this, a court ordered settlement agreement was reached with the Gauteng Department of Health and other respondents. Among other things, it required the authorities to take reasonable steps to ensure safe and unhindered access to the Yeoville and Rosettenville clinics, and to report on the implementation by 18 May 2026. It also makes provision to continue legal proceedings if necessary to enforce full compliance with Judge Wilson’s order.
The laws governing healthcare for migrants in South Africa
Taking a step back from this case, and its specific set of facts, it is worth remembering that South African law really does provide extensive protection to migrants who need to access healthcare services.
The right to access healthcare services is guaranteed by section 27 of our Constitution, which states that everyone has the right to have access to healthcare services, and that no one may be refused emergency medical treatment. The term “everyone” is not restricted to South Africans only. It includes everyone within the borders of South Africa, regardless of their nationality.
This right extends to all children living in South Africa under section 28(1)(c) of the Constitution. This guarantees all children access to basic healthcare services dependent on the availability of resources, to which they can never be completely denied.
After the Constitution, the most important piece of healthcare legislation relevant to migrants is the National Health Act (NHA). The NHA assists in giving effect to the constitutional right to basic healthcare services by outlining who can receive services at public clinics free of charge. It obligates the provision of free healthcare services to women who are pregnant or breastfeeding, or children under six. Moreover, the NHA requires that free primary healthcare be provided to those without medical aid. It also makes it clear that those working in healthcare cannot refuse any person emergency medical treatment.
Along similar lines, South Africa’s Refugees Act states that a refugee is entitled to full legal protection, which includes the rights set out in the Bill of Rights, except those reserved for citizens. The Act formally acknowledges that refugees are entitled to the same basic healthcare services and primary education that South African citizens receive. While the Act does not expressly cover undocumented migrants, it is grounded on the principle of non-discrimination, which supports equal access to essential services.
South Africa is also party to several international and regional human rights instruments that prohibit discrimination and guarantee equal access to healthcare for all. These include the African Charter on Human and Peoples’ Rights, the Convention Relating to the Status of Refugees, the International Covenant on Economic, Social and Cultural rights, the Convention on the Rights of the Child, and the Convention on the Elimination of All Forms of Discrimination against Women.
Why all this matters
The denial of healthcare services has significant impacts on many aspects of people’s lives. Migrants often become so desperate to receive care that they feel compelled to disclose their HIV status, which infringes on their rights, particularly the constitutional rights to privacy and dignity. It also creates feelings of stigma and discrimination, further marginalising people who are often already vulnerable.
There are also direct health consequences. Denying treatment to a migrant not only negatively impacts that person’s health it can also result in the continued transmission of infectious diseases to both other migrants and South Africans. For example, HIV and TB typically become non-infectious a while after someone starts treatment. Deciding not to treat someone ends up harming everyone. As untreated conditions worsen, it may require emergency medical attention that could have been avoided through early treatment. All of this places extra pressure on an already fragile health system – extra pressure that could be avoided by providing more migrants with healthcare services as soon as they need it.
The failure to provide healthcare services also affects migrants’ livelihoods and well-being. For those who run their own businesses, being unable to access treatment may prevent them from working altogether and could lead to them and other people, possibly South Africans, losing their jobs. Ultimately, this has a ripple effect on the country’s economy, job security, and perpetuates cycles of poverty and vulnerability.
At its heart then, this issue is about who we choose to be as a society. Turning people away at their most vulnerable moments erodes not only their dignity, but also their humanity and ours. In a country built on the values of equality and dignity, we cannot allow this attack on our basic humanity and decency to succeed. We are, and must be, better than that.
*Brown is a legal researcher and Mahlathi is a paralegal with SECTION27. In the court case discussed in this article, SECTION27 represented the Treatment Action Campaign, Médecins Sans Frontiers, and Kopanang Africa Against Xenophobia.
Note: Spotlight is published by SECTION27, but is editorially independent – an independence that the editors guard jealously. Spotlight aims to deepen public understanding of important health issues by publishing a variety of views on its opinion pages. The views expressed in this article are not necessarily shared by the Spotlight editors.
Republished from Spotlight under a Creative Commons licence.
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