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Corte Costituzionale Sud Africa - Caso 32/97

La dispensa fa riferimento alle lezioni di Diritto Costituzionale Italiano e Comparato, tenute dalla Prof. ssa Lucia Scaffardi nell'anno accademico 2008.
Il documento riporta il testo in inglese del caso 32/97 sottoposto alla Corte Costituzionale sudafricana riguardante il diritto di un paziente... Vedi di più

Esame di Diritto Costituzionale Italiano e Comparato docente Prof. L. Scaffardi




many others who need access to renal dialysis units or to other health services. There are

also those who need access to housing, food and water, employment opportunities, and

social security. These too are aspects of the right to

. . human life: the right to live as a human being, to be part of a broader community, to

A. 14

share in the experience of humanity.@

The state has to manage its limited resources in order to address all these claims. There

will be times when this requires it to adopt a holistic approach to the larger needs of

society rather than to focus on the specific needs of particular individuals within society.

[32] In his concurring judgment in this matter Madala J refers to the possibility of the

appellant being treated by Continuing Ambulatory Peritoneal Dialysis (CAPD). This

treatment is dealt with fully by Dr Naicker in a supplementary affidavit lodged by her in

response to an averment made by the appellant in his replying affidavit that there is

treatment, other than renal dialysis, which would be of benefit to him, but had not been

offered to him by the Addington Hospital.

[33] Dr Naicker explains that CAPD treatment makes patients vulnerable to infections

14 Per O=Regan J in S v Makwanyane above n 5 at para 326.


and leads to patients having to be put on dialysis for two to three months when such

infections occur. If an infection occurs frequently or is severe the patient has to be put

onto dialysis permanently. A study undertaken at the hospital shows that over 60% of the

patients treated at the hospital by CAPD have had to be placed on dialysis permanently.

The cost of the treatment is high the fluids used in the treatment call for an expenditure


of approximately R4000 per month and there is the additional cost of having to


accommodate the patient at the hospital and treat him or her in the surgery. Because of

the high cost of the treatment and the demands that it makes on hospital resources

including dialysis facilities, the hospital has also set criteria for treating patients by

CAPD. Only patients who are candidates for transplant are placed on CAPD and

approximately 130 such patients are being treated in this way at the hospital. The

appellant is not a candidate for a transplant and accordingly does not meet the criteria for

CAPD treatment.

[34] Counsel for the appellant, correctly in my view, appreciated that there was no

material difference between the appellant=s claim to be placed on dialysis (which is his

preferred option) and the alternative of being treated by CAPD. Neither form of treatment

is treatment@, neither is accessible to all patients suffering from chronic renal


failure and because of the limited resources both are subject to criteria which the appellant

does not meet. 20 CHASKALSON P

[35] I should add that I do not consider it appropriate to comment on the attitude of the

private medical sector to CAPD treatment. No evidence was placed before us in that

regard and there is nothing on the papers to show that patients treated privately do not

receive proper advice in regard to the availability, risks and costs of such treatment.

[36] The state has a constitutional duty to comply with the obligations imposed on it by

section 27 of the Constitution. It has not been shown in the present case, however, that

the state=s failure to provide renal dialysis facilities for all persons suffering from chronic

renal failure constitutes a breach of those obligations. In the circumstances the appellant

is not entitled to the relief that he seeks in these proceedings and his appeal against the

decision of Combrinck J must fail. This is not an appropriate case for an order for costs to

be made and the respondent correctly does not seek such an order.

[37] The following order is made. The appeal against the order made by Combrinck J

is dismissed. No order is made as to costs.

Langa DP, Ackermann J, Didcott J, Goldstone J, Kriegler J, Mokgoro J, O=Regan J, and

Sachs J concur in the judgment of Chaskalson P



[38] I have had the benefit of reading the judgment prepared by Chaskalson P and the

concurring judgment of Sachs J in this matter. I am in agreement with Chaskalson P=s

very incisive analysis of the provisions of section 27 and in particular his conclusion that

section 27(3) envisages a dramatic, sudden situation or event which is of a passing nature

in terms of time. There is some suddenness and at times even an element of

unexpectedness in the concept medical treatment@. I accordingly also agree


that on that score the appellant=s case must fail since he has not persuaded us that section

27(3) applies. I, however, seek to make my own further observations about this case and

now do so briefly. It is not necessary for me to restate the facts of the case as they have

been set out succinctly in the judgment of Chaskalson P. Nor do I see the need to repeat

in any detail the arguments that were advanced in the appeal.

[39] In the oral submissions addressed to us, Mr Jacobs, who appeared on behalf of the

appellant, placed reliance, among others, on the provisions of section 11 of the

Constitution the right to life. In this case life is indeed potentially at stake and this


Court is enjoined therefore not only to find a humane and morally justified solution to the

problem at hand, but also to examine assiduously the process by which the solution is

reached and the legal foundation on which it rests. The state undoubtedly has a strong


interest in protecting and preserving the life and health of its citizens and to that end must

do all in its power to protect and preserve life.

[40] In another sense the appeal before us brings into sharp focus the dichotomy in

which a changing society finds itself and in particular 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. It puts us in the

very painful situation in which medical practitioners must find themselves daily when the

question arises: a doctor ever allow a patient to die when that patient has a


treatable condition?@ In the context of this case, the question to be answered is whether

everybody has the right of access to kidney dialysis machines even where resources are

scarce or limited.

[41] Chapter 2 of the Constitution sets out the fundamental rights to which every person

is entitled and also contains provisions dealing with the manner in which the chapter is to

be interpreted by the courts. Kentridge AJ, who delivered the judgment of the Court in S

1 2

referred with approval to the judgment of Dickson J (later CJC) in R

v Zuma and Others, 3 and to the following passage in particular:

v Big M Drug Mart Ltd

1 S v Zuma and Others 1995 (2) SA 642 (CC); 1995 (4) BCLR 401 (CC).

2 Id at para 15.

3 (1985) 18 DLR (4th) 321 at 359B60. 23 MADALA J

meaning of a right or freedom guaranteed by the Charter was to be ascertained by


an analysis of the purpose of such a guarantee; it was to be understood, in other words, in

the light of the interests it was meant to protect.

In my view, this analysis is to be undertaken, and the purpose of the right or freedom

in question is to be sought by reference to the character and the larger objects of the

Charter itself, to the language chosen to articulate the specific right or freedom, to the

historical origins of the concept enshrined, and where applicable, to the meaning and

purpose of the other specific rights and freedoms with which it is associated within the

text of the Charter. The interpretation should be . . . a generous rather than a legalistic

one, aimed at fulfilling the purpose of the guarantee and securing for individuals the full

benefit of the Charter=s protection.@

[42] The Constitution is forward-looking and guarantees to every citizen fundamental

rights in such a manner that the ordinary person-in-the-street, who is aware of these

guarantees, immediately claims them without further ado and assumes that every right


so guaranteed is available to him or her on demand. Some rights in the Constitution are

the ideal and something to be strived for. They amount to a promise, in some cases, and

an indication of what a democratic society aiming to salvage lost dignity, freedom and

equality should embark upon. They are values which the Constitution seeks to provide,

nurture and protect for a future South Africa.

[43] However, the guarantees of the Constitution are not absolute but may be limited in

one way or another. In some instances, the Constitution states in so many words that the

state must take reasonable legislative and other measures, within its available resources



achieve the progressive realisation of each of these rights.@ In its language, 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. In the present case the

limited haemodialysis facilities, inclusive of haemodialysis machines, beds and trained

staff constitute the limited or scarce facilities.

4 Section 27(2). See also sections 25, 26, 29 and 32.


[44] The applicant, aware of his rights under the Constitution, sought to claim in the

court a quo, his right to emergency medical treatment under section 27(3). He averred

that with haemodialysis he could live for a long time, without it his life would be brief.

The application was turned down by Combrink J. It is that refusal to grant an order

directing the respondent to cause the rendering of on-going dialysis which has

precipitated this appeal. The appellant contended that the refusal by the renal unit to give

him the dialysis treatment he requires in order to keep alive was unreasonable, unjust and

not equitable in a just and open democratic society and was a flagrant violation of his

rights. He also averred in his papers that by refusing him this treatment, the respondent

was discriminating against him. This latter averment was not followed up in argument at

the hearing, and I accordingly take it no further. Suffice to observe that in the light of this


Court=s approach to equality, the appellant=s argument in that regard could not stand.

[45] The fundamental issue is whether this Court, as the guardian of the Constitution, as

5 Harksen v Lane NO and Others CCT 9/97, 7 October 1997, as yet unreported; President of the Republic of

South Africa and another v Hugo 1997 (4) SA 1 (CC); 1997 (6) BCLR 708 (CC); Prinsloo v Van der Linde

and another 1997 (3) SA 1012 (CC); 1997 (6) BCLR 759 (CC); and Brink v Kitshoff NO 1996 (4) SA 197

(CC); 1996 (6) BCLR 752 (CC). 26 MADALA J

the protector of human rights and as the upholder of democracy, should in this case

require a health authority, acting through its authorised medical practitioner, to adopt a

course of treatment which in the bona fide clinical and incisive judgment of the

practitioner will not cure the patient but merely prolong his life for some time. Dr

Naicker=s qualifications as head of the Renal Unit at Addington Hospital are undoubted

and her 18 years experience as a specialist physician in the field of renal medicine puts

her in a singular position when it comes to the exercise by her of her own professional

judgment on renal matters. She states in her affidavit in the present matter that patients

who suffer from chronic renal failure, the condition which has afflicted the appellant,

have as their only hope, either an organ transplant or long-term dialysis. It is always

envisaged when such patients are put on the dialysis programme, that in due course a

suitable cadaver transplant may be carried out or that organ donation may be made by a

suitable living person. The appellant is not a suitable candidate for renal transplant; also

he does not qualify for long-term dialysis because of the scarcity of facilities and his state

of health.

[46] It appears that because the appellant is suffering from, inter alia, coronary artery

disease, ischaemic heart disease which caused him to have a stroke in 1996, hypertension

and diabetes, he is not a suitable candidate for kidney transplant. The results of the

angiogram indicated that he has to be excluded from the dialysis programme. It appears

that barring a kidney transplant, haemodialysis is the most efficacious treatment of end-


stage renal failure. It appears also that the renal unit at the said hospital cannot render

treatment to all end-stage renal failure patients, including the appellant, unless they satisfy

the guidelines which are accepted throughout South Africa as the minimum standards to

be met for admission to the dialysis programme, the main criterion of which is the

patient=s suitability for a renal transplant. It was not suggested on the papers before us nor

in argument at the hearing that the applicant has ever considered seeking the less

expensive treatment known as Continuing Ambulatory Peritoneal Dialysis (CAPD) or

indeed that he was not eligible for that treatment as well. It appears that this form of

treatment has been resorted to by many patients as a result of the lack of haemodialysis

facilities and that while it cannot be equated to renal transplant or haemodialysis, it

nonetheless prolongs life expectancy to some extent. In countries like the United

Kingdom the prevalence of renal failure and the scarcity of resources has resulted in an

increase in the number of patients who resort to CAPD.

[47] The appellant was initially dialysed in the private sector at the rate of

approximately R1 000 per treatment and required two or three treatments per week but

could not continue with this treatment when his funds ran out and he found himself owing

the private clinic approximately R25 000.

[48] Private hospitals and clinics which offer haemodialysis programmes play an

important role in cases such as the present. They do afford end-stage renal failure patients


with haemodialysis treatment where the public sector cannot. The private sector criteria

for acceptance onto a dialysis programme are not as strict, but naturally the patient must

have the funds in order to sustain treatment. It seems to me that it would alleviate the

problem of the public sector if more patients were given by the private sector alternative

possible treatment of providing catheters and bags which go with CAPD. The appellant

in this case alleges that he was never advised about this option. If this were so, it would,

in my view, be a serious indictment for the private sector which offers private renal

dialysis programmes. However, the private sector is not before us and we cannot

condemn it without hearing it.

[49] Perhaps a solution might be to embark upon a massive education campaign to

inform the citizens generally about the causes of renal failure, hypertension and diabetes

and the diet which persons afflicted by renal failure could resort to in order to prolong

their life expectancy.


[50] I am in full agreement with the eloquent, forceful and well-focused judgment of

Chaskalson P and wish merely to add certain considerations which I regard as relevant.


[51] The special attention given by section 27(3) to non-refusal of emergency medical

treatment relates to the particular sense of shock to our notions of human solidarity

occasioned by the turning away from hospital of people battered and bleeding or of those

who fall victim to sudden and unexpected collapse. It provides reassurance to all

members of society that accident and emergency departments will be available to deal

with the unforeseeable catastrophes which could befall any person, anywhere and at any

1 The values protected by section 27(3) would, accordingly, be undermined rather


than reinforced by any unwarranted conflation of emergency and non-emergency

treatment such as that argued for by the appellant.

[52] In a case such as the present which engages our compassion to the full, I feel it

necessary to underline the fact that Chaskalson P=s judgment, as I understand it, does not

2 In all the open and democratic societies based

merely the bell of lack of resources@.


1 See B New The Rationing Agenda in the NHS (King=s Fund Policy Institute, London 1996) at 9.

2 Quoted in R v Cambridge Health Authority, ex parte B [1995] 2 All ER 129 (CA) at 137cBd. In that case

the judge in the Court a quo quashed the decision of a local health authority refusing to provide expensive

treatment for a seriously ill child saying that . . the responsible authority . . . must do more than toll the


bell of tight resources@. The appeal Court overturned his decision.



upon dignity, freedom and equality with which I am familiar, the rationing of access to

life-prolonging resources is regarded as integral to, rather than incompatible with, a

human rights approach to health care.

[53] Indeed, while each claimant seeking access to public medical resources is entitled

to individualised consideration, the lack of principled criteria for regulating such access

could be more open to challenge than the existence and application of such criteria. As a

UNESCO publication put it:

3 Section 39(1)(a) of the Constitution requires us, when interpreting the bill of rights, to the values


that underlie an open and democratic society based on human dignity, equality and freedom@.


in the industrialized nations where public tax-supported research has made a


private biomedical technology industry possible, the literal provision of equal access to

high-technology care, utilized most often by the elderly, would inevitably raise the level

of spending to a point which would preclude investment in preventive care for the

young, and maintenance care for working adults. That is why most national health

systems do not offer, or severely ration (under a variety of disguises), expensive


technological care such as renal dialysis or organ transplants.@

The inescapable fact is that if governments were unable to confer any benefit on any

person unless it conferred an identical benefit on all, the only viable option would be to


confer no benefit on anybody.

4 Brody Biomedical Technology and Human Rights (UNESCO, Paris 1993) at 233. South Africa is a middle

income country where their high profile, modern lifesaving medical treatments are only available


on a limited scale@, Benatar of Medical Ethics: Africa@ Encyclopaedia of Bioethics Vol 3 Revised


ed (Macmillan, New York 1995) 1465 at 1467.

5 See Brown v British Columbia (Minister of Health) (1990) 48 CRR 137 at 157B8.


[54] Health care rights by their very nature have to be considered not only in a

traditional legal context structured around the ideas of human autonomy but in a new

analytical framework based on the notion of human interdependence. A healthy life

depends upon social interdependence: the quality of air, water, and sanitation which the

state maintains for the public good; the quality of one=s caring relationships, which are

highly correlated to health; as well as the quality of health care and support furnished

officially by medical institutions and provided informally by family, friends, and the

6 As Minow put it:

community. is not a social ideal, but an inescapable fact; the scarcity of resources


forces it on us. Who gets to use dialysis equipment? Who goes to the front of the line for


the kidney transplant?@

Traditional rights analyses accordingly have to be adapted so as to take account of the

special problems created by the need to provide a broad framework of constitutional

principles governing the right of access to scarce resources and to adjudicate between

competing rights bearers. When rights by their very nature are shared and inter-

dependent, striking appropriate balances between the equally valid entitlements or

expectations of a multitude of claimants should not be seen as imposing limits on those

6 Minow, participating in an interdisciplinary discussion held at Harvard Law School in 1993, I:


Applying Rights Rhetoric to Economic and Social Claims@ Economic and Social Rights and the Right to

Health (Harvard Law School Human Rights Program, Cambridge MA 1995) 1 at 3.

7 Id. 33 SACHS J

rights (which would then have to be justified in terms of section 36), but as defining the

circumstances in which the rights may most fairly and effectively be enjoyed.

[55] I conclude with some observations on the questions raised relating to section 11 of

the Constitution which states that has the right to life.@ The present case does


not necessitate any attempt to give a definitive answer to all these questions. Yet it does

s Dominion, called the

point to the need to establish what Dworkin has in his book Life = 8 He

importance of the natural and human contributions to the sanctity of life@.


concludes his study with the eloquent reminder that if people are to

the self consciousness and self respect that is the greatest achievement of our


species, they will let neither science nor nature simply take its course, but will struggle to

express, in the laws they make as citizens and the choices they make as people, the best

understanding they can reach of why human life is sacred, and of the proper place of


freedom in its dominion.@

[56] timing of death once solely a matter of fate is now increasingly

A[T]he B B

10 In the United States, eighty percent of the two

becoming a matter of human choice.@

million people who die each year, die in hospitals and long term care institutions, and

8 Dworkin Life s Dominion: An Argument about Abortion and Euthanasia (Harper Collins, London 1993) at



9 Id at 241.

10 Office of Technology Assessment Task Force, Life Sustaining Technologies and the Elderly 41 (1988),

quoted by Brennan J (dissenting) in Cruzan v Director, Missouri Department of Health, et al 497 US 261,

302 (1990). That case involved terminating rather than having access to expensive equipment.


approximately seventy percent of those after a decision to forego life sustaining treatment


has been made. The words of Brennan J of the US Supreme Court, writing in a different

context, have resonance:

11 Id at 302B3. 35




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+1 anno fa


La dispensa fa riferimento alle lezioni di Diritto Costituzionale Italiano e Comparato, tenute dalla Prof. ssa Lucia Scaffardi nell'anno accademico 2008.
Il documento riporta il testo in inglese del caso 32/97 sottoposto alla Corte Costituzionale sudafricana riguardante il diritto di un paziente affetto da patologia renale cronica di accedere alle cure dialitiche presso le strutture pubbliche che fino a quel momento erano state negate per insufficienza di fondi.

Corso di laurea: Corso di laurea magistrale in giurisprudenza (a ciclo unico)
Università: Parma - Unipr
A.A.: 2008-2009

I contenuti di questa pagina costituiscono rielaborazioni personali del Publisher Atreyu di informazioni apprese con la frequenza delle lezioni di Diritto Costituzionale Italiano e Comparato e studio autonomo di eventuali libri di riferimento in preparazione dell'esame finale o della tesi. Non devono intendersi come materiale ufficiale dell'università Parma - Unipr o del prof Scaffardi Lucia.

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