For many of us involved in struggles for social justice, the South African Constitution is the equivalent of what the Freedom Charter was to activists fighting apartheid. Both frame the kind of society we are fighting for. The Freedom Charter was an aspirational roadmap beyond the apartheid state, seen by the majority as a crime against humanity that needed to be destroyed. The most important difference is that the Constitution is the supreme law of the land.

Yet it is questionable whether every one of us uses the Constitution for what it was intended, to challenge inequity and fight for redress. A blueprint for equality and transformation. A mandate to end all unfair discrimination and to fight for equality. That is justice.

I ask this because when a young person dies because there was a question mark over his legal status in our constitutional democracy, then you are left questioning what the struggle to destroy apartheid was all for.

Consider the plight of Moses Mathe. He was 21 years old. In the prime of his life, with hopes and dreams of life, love and happiness. He was also Mozambican. And because of that, his dreams and hopes of life were ended.

Lawyers for Human Rights became aware of his existence after his family approached us for help. By that time Moses had already been admitted into high care at Chris Hani Baragwanath (CHB) Hospital and was being intubated.

He had been assaulted and approached CHB for treatment for his head injury. He sustained no permanent damage to his brain but was placed on paracetamol and anti-epileptic medication. Subsequently, he went into liver failure.

He was set up to undergo a liver transplant on Thursday 13 February, but when the medical institution discovered he was a Mozambican national, they stopped the procedure. The hospital indicated that he would need ministerial authorisation to undergo the procedure.

If he was South African, he would be able to undergo the procedure free.

Moses died on Sunday morning.

Is Moses’ death the result of a failure by the hospital, the state, or even the Constitution? A doctor would, in the current legislative framework, be breaking the law if she were to perform a transplant on Moses without a ministerial waiver. This means that because Moses was not South African, the decision to save his life, an ancient ethical duty arising from the Hippocratic Oath taken by every doctor to “act in the best interests of the patient”, was taken away from the doctor. The State allowed Moses to die.

It is scary that a person’s right to life is determined by his legal status: passports have replaced the dompas; neighbouring countries have replaced the Bantustans. This may be the law, but what moral value do we as a country attach to the life of a young person? Is SA not the champion of human rights and respect for human dignity enshrined in our Constitution?

Does our Constitution not say that “no one may be refused emergency medical treatment?” Are migrants now less than “no one”?

In 2003, Nelson Mandela said that “children… have an entrenched right to be whatever they want to be, and that they can achieve this only if they are given the space to dream and live out their dreams.”

Moses’ dream of life was cut short at 21. MC

Sharon Ekambaram works for Lawyers for Human Rights and is Manager for the Refugee and Migrants Rights Programme.