Corte Costituzionale Sud Africa - Caso 32/97
CHASKALSON P / MADALA J
 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.
 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
22 MADALA J
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.
 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.
 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
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.@
 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.
 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
24 MADALA J
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.
25 MADALA J
 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.
 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
 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-
27 MADALA J
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.
 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.
 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
28 MADALA J / SACHS J
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.
 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.
 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.
29 MADALA J / SACHS J
 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.
 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  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.
30 SACHS J
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.
 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@.
31 SACHS J
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.
32 SACHS J
 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.
 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.@
 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.
34 SACHS J
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 SACHS J
every death involves a decision whether to undertake some medical procedure
that could prolong the process of dying. Such decisions are difficult and personal. They
must be made on the basis of individual values, informed by medical realities, yet within
a framework governed by law. The role of the courts is confined to defining that
framework, delineating the ways in which government may and may not participate in
such decisions.@ (My emphasis.)
 However the right to life may come to be defined in South Africa, there is in reality
no meaningful way in which it can constitutionally be extended to encompass the right
indefinitely to evade death. As Stevens J put it: dying is part of life, its completion rather
13 We can, however, influence the manner in which we come to terms
than its opposite.
with our mortality. It is precisely here, where scarce artificial life-prolonging resources
have to be called upon, that tragic medical choices have to be made.
12 Id at 303.
13 Id at 343. 36 SACHS J
 Courts are not the proper place to resolve the agonising personal and medical
problems that underlie these choices. Important though our review functions are, there
are areas where institutional incapacity and appropriate constitutional modesty require us
to be especially cautious. Our country=s legal system simply replace the more
intimate struggle that must be borne by the patient, those caring for the patient, and those
who care about the patient.@ The provisions of the bill of rights should furthermore not
be interpreted in a way which results in courts feeling themselves unduly pressurised by
the fear of gambling with the lives of claimants into ordering hospitals to furnish the most
expensive and improbable procedures, thereby diverting scarce medical resources and
prejudicing the claims of others.
 The applicant in this case presented his claim in a most dignified manner and
showed manifest appreciation for the situation of the many other persons in the same
harsh circumstances as himself. If resources were co-extensive with compassion, I have
no doubt as to what my decision would have been. Unfortunately, the resources are
14 In re Jobes 529 A2d 434 at 451 (NJ SCt, 1987). And see Lo et al Decision-making on Trial: Who
Decides for Incompetent Patients?@ (1990) 322 New England Journal of Medicine 1228 at 1231.
15 Gostin commenting in II Defining the Right to Adequate Health@ Economic and Social Rights and
the Right to Health: An Interdisciplinary Discussion Held at Harvard Law School in September, 1993
(Harvard Law School Human Rights Program, Cambridge MA 1995) 17 at 20.
37 SACHS J
limited, and I can find no reason to interfere with the allocation undertaken by those better
equipped than I to deal with the agonising choices that had to be made.
+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.
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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