The First Socio-Economic Rights Case
Soobramoney v Minister of Health (1997)
In a constitutional democracy where the right to access healthcare is protected, can a hospital refuse a seriously ill patient treatment because of a lack of resources?
Background
This was the first case in the Constitutional Court which adjudicated socio-economic rights. Thiagraj Soobramoney, a 41-year-old diabetic unemployed man, suffered a stroke. He was also in the final stages of chronic renal failure and his condition was, sadly, irreversible. He sought treatment to prolong his life from the renal unit of the Addington State Hospital in Durban. The hospital stated that due to budgetary constraints, they had been told by the provincial health department that only patients who suffer from acute (and not chronic) renal failure could be treated.
In response to the hospital’s policy, Soobramoney made an urgent application to the High Court for an order directing the hospital to provide him with ongoing dialysis treatment. The matter ended up in the Constitutional Court.
Path to the Constitutional Court
In July 1997, following the hospital’s decision not to provide him treatment due to budgetary constraints, Soobramoney made an urgent application to the Durban High Court for an order directing the hospital to provide him with ongoing dialysis treatment. Soobramoney claimed that in terms of the Constitution, the hospital was obliged to make dialysis treatment available to him. The Minister of Health opposed the application. The High Court dismissed the application.
Soobramoney then applied to the Constitutional Court for leave to appeal against the judgment of the High Court, which was granted.
Some of the Arguments
Thiagraj Soobramoney
Soobramoney claimed that in terms of section 27(3) of the 1996 Constitution, the hospital was obliged to make dialysis treatment available to him. The section states: “No one may be refused emergency medical treatment”. Section 11 which stipulates that: “Everyone has the right to life.” Soobramoney’s legal counsel said, “If I get my argument wrong, my client could die”.
Minister of Health
The Minister of Health argued there were no funds available to provide patients such as Soobramoney with the necessary treatment.
What did the Constitutional Court decide?
The Court found that Soobramoney was not entitled to the order for dialysis that he sought. The Court expressed sympathy for Soobramoney and his family who faced the cruel dilemma of having to impoverish themselves in order to secure the treatment that he sought to prolong his life. They recognised that had Soobramoney been a wealthy man, he would be able to procure such treatment from private sources.
The Court held that if all persons in South Africa who suffer from chronic renal failure were to be provided with dialysis treatment, the cost of doing so would make substantial inroads into the health budget. But the state’s resources were limited and Soobramoney did not meet the criteria for admission to the renal dialysis programme.
However, the Court found that it had not been shown in the present case that the state’s failure to provide renal dialysis facilities for all persons suffering from chronic renal failure constituted a breach of the state’s obligations in terms of the right to health.
The Court found that when assessing the department of health’s budget and its policies informed by such budget, as in Soobramoney’s case, a court should be slow to interfere with rational decisions taken in good faith by the political organs and medical authorities whose responsibility it is to deal with such matters.
The appeal before us brings into sharp focus … the problems attendant upon trying to distribute scarce resources on the one hand and satisfying the designs of the Constitution with regard to the provision of health services on the other.
Justice Tholie Madala
from the Soobramoney Judgment, 11 November 1997
The Constitution accepts that it cannot solve all of our society’s woes overnight but must go on trying to resolve these problems. One of the limiting factors to the attainment of the Constitution’s guarantees is that of limited or scarce resources.
Justice Tholie Madala
from the Soobramoney Judgment, 11 November 1997
Impact and Significance
Soobramoney died shortly after the Court’s decision was passed down. A journalist at Mail & Guardian expressed a commonly held criticism of the Court’s decision, namely that the Soobramoney case contradicted the death penalty judgment.
Ordinarily fundamental rights are not rationed. But by their very nature, socio-economic rights are rationed – there is never enough. The question becomes if the criteria for limiting them are in line with the Constitution.
Justice Albie Sachs
2019
Critics argued that had Soobramoney been a serial murderer, the earlier decision of the Constitutional Court guaranteed his life would never fall under the shadow of the gallows. Instead, shelter and sustenance for the rest of his days would be guaranteed, regardless of the budget of the government department responsible for keeping him in jail. He would enjoy professional medical care, again regardless of cost. Even if his kidneys failed while he was in prison, he would receive the necessary treatment. They argued that from the moment his illness became expensive to treat, what befell Soobramoney was more or less what, in apartheid’s heyday, used to befall black people in search of medical treatment that went much beyond the patch and soothe.
The Court had to give a decision quickly because of Soobramoney’s deteriorating health. The Court felt his anguish. In its judgment, the Court expressed the judicial emotion which reflected the tragic circumstances of the case and the terrible reality of the situation.
