The court found that cancer patients faced 'irreversible and permanent harm' that affected not only their health but also their families.
The Gauteng High Court in Johannesburg says the cancer patients do not have the “luxury of time” handing down a ruling that the Gauteng Health Department has to abide by a previous order relating to the provision of radiation oncology services.
In March, the Gauteng High Court in Johannesburg declared the province’s health department’s failure to provide radiation and oncology services to cancer patients “unlawful and unconstitutional.”
The court also ordered the Gauteng Health Department to take “all steps necessary” to provide radiation oncology services to patients on the backlog list for treatment at Charlotte Maxeke Johannesburg Academic Hospital and Steve Biko Academic Hospital.
Ruling
After the judgment, the department filed an application for leave to appeal the decision.
The Court made it clear that Acting Justice Stephen van Nieuwenhuizen’s judgment and order, handed down on March 27, 2025, will not be suspended until the Supreme Court of Appeal’s (SCA) decision on the respondents’ appeal against the judgment and order, as well as the outcome of any appeal that may be launched in the Constitutional Court.
‘Luxury of time’
Judge Fiona Dippenaar ruled that the department’s arguments failed to provide factual evidence to counter the applicants’ cases.
“This vulnerable group of people are at the heart of this application. While the respondents contended that they are taking steps to provide radiation oncology treatment to cancer patients, they did not present any evidence that patients on the backlog list are receiving such treatment.
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“To direct otherwise may well be the death knell for many vulnerable cancer patients on the backlog list who have been waiting for years for life-saving treatment. They do not have the luxury of time,” Dippenaar ruled.
Liability
Dippenaar ordered that Gauteng health MEC, the provincial health head of department (HOD) and the CEOs of Charlotte Maxeke and Steve Biko Academic hospitals be held personally liable for the costs of the application.
“It was not disputed that the backlog list, comprising some 3 000 patients, continues to grow and that, absent radiation oncology treatment, the cancer patients who are on the backlog face the inevitable risk of early death.”
Harm
Dippenaar stressed that the backlog meant that patients were being denied treatment within the treatment windows required for radiation to be effective, which had “dire consequences”.
ALSO READ: Court orders Gauteng Health to clear radiation oncology backlog at public hospitals
The court found that patients faced “irreversible and permanent harm” that affected not only their health but also their families and loved ones, which in turn created a broader public health and societal crisis.
Ruling welcomed
Advocacy group Section27 and the Cancer Alliance welcomed the urgent judgment of the Gauteng High Court.
“This judgment is a critical affirmation of the rights to life, dignity and access to healthcare services. The judgment is also a reminder that the state must act with urgency, transparency, and accountability when lives are at stake,” said Section 27 spokesperson Pearl Nicodemus.
Section 27 and the Cancer Alliance called on the Gauteng Department of Health, the Minister of Health, and hospital CEOs to fully “comply with the order and, to stop using legal processes as delaying tactics, and without further delay”, to ensure that the patients on the backlog list receive urgent, life-saving treatment they need.
“Every day of inaction means more families losing loved ones unnecessarily,” they said.
Cancer backlog
The Cancer Alliance, represented by advocacy group Section 27, filed an application in the High Court in Johannesburg against the Gauteng health department for allegedly failing to spend R784 million allocated by the Gauteng Treasury in 2023.
The radiation and other surgical backlogs showed that about 3 000 cancer patients were awaiting cancer treatment, some for more than three years.
ALSO READ: Gauteng cancer patients battle illness and broken system amid R784m funding dispute
