Section 27 of the Constitution provides everyone with the right of access to healthcare services. Section 27(2) qualifies this right thus:

“The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights.”

In the Treatment Action Campaign case in 2002, the Constitutional Court interpreted this provision as follows:

“We therefore conclude that section 27(1) of the Constitution does not give rise to a self-standing and independent positive right enforceable irrespective of the considerations mentioned in section 27(2). Sections 27(1) and 27(2) must be read together as defining the scope of the positive rights that everyone has and the corresponding obligations on the state to ‘respect, protect, promote and fulfil’ such rights. The rights conferred by sections 26(1) and 27(1) are to have ‘access’ to the services that the state is obliged to provide in terms of sections 26(2) and 27(2).”

The question that needs to be answered in the context of the Covid-19 pandemic is whether the state has provided sufficient access to the requisite healthcare within available resources. In addition, the further issue arises as to whether in exercising its powers in response to Covid-19 the state has acted in a rational manner as defined by our courts.

To date, the record is troubling.

It is now clear that until January, nothing of consequence was undertaken to procure vaccines. Thanks to this inexplicable lethargy South Africa was always behind the curve in procuring the necessary vaccines in compliance with its constitutional obligations. For months thereafter South Africans were told about the vast vaccine procurement — claims and promises that invariably turned out to be false.

Yes, initial research cautioned against the use of the AstraZeneca vaccine to combat the Beta variant, and there has been difficulty using the J&J vaccine because of US regulatory issues. In addition, many countries have battled to roll out vaccines. But, for lack of transparency to the public it serves, the national government is in a league of its own.

In this very publication, Professor Shabir Madhi, on any objective standard (research publications, academic rating, peer reviews) one of South Africa’s foremost experts in the field of virology, has argued that, based on a research study published in The Lancet, recognised as one of the most prestigious medical publications, a shot of the AstraZeneca vaccine and a further shot of the Pfizer vaccine is extremely effective.

AstraZeneca is accessible, but instead the state, presumably bowing to South Africa’s other leading expert on virology, Julius Malema, is considering the Chinese and/or the Russian vaccine, notwithstanding the disturbing evidence from Chile, Bahrain and Seychelles concerning the Chinese vaccine Sinopharm. The reluctance/unwillingness to pursue procurement of AstraZeneca may well be in breach of the legal framework set out above.

Can we be told the real reason?

In similar fashion, the manner in which the Gauteng provincial government has failed to staff its newly established facilities to deal with Covid-19 is not only irrational, but is close to criminal neglect.

Experts had warned about a third wave for some time, and to be so ill-prepared is an appalling reflection of the state of governance and the lack of care and concern for ordinary people’s lives. In turn, this raises the question as to who is advising the government with regard to the complex science. Politics rather than expertise appears to be the dominant consideration. 

Politics clearly influences the drafting of the regulations. How is it possible to allow 50 people at a funeral or 15 in a taxi at this moment of great peril? As much as it is important to respect mourning, for the next two weeks, while we try to get a handle on the Delta variant, we surely need to be consistent in our approach, that is, take no chance of superspreader events.

Politics also looms large in the extraordinary situation that, in the middle of the greatest health crisis faced by this country in more than 100 years, the Department of Health is now led by an acting minister who has her own portfolio to occupy her energy and time. As Trevor Manuel — who knows a thing or two about governance — argued, a dedicated appointment is needed in the nation’s hour of need. It could be the deputy minister, but why can the president not take the bold step of appointing someone from the well-organised private health sector, who would bring the necessary expertise and organisational experience to the department?

This is the quintessential time to adhere meticulously to our constitutional commitments, and that means placing the nation above the party. History will be a harsh judge of people who have continuously put politics above the wellbeing of the nation. DM