Can rights cure? The impact of rights-based litigation on health system transformation in South Africa

This paper considers the impact of court judgments upholding the right of access to health care services on the transformation of the South African health system, which remains one of the most unequal and least efficient in the world.  While rich and upper-class South Africans have access to excellent medical care in the private sector, the public health system, which has to serve the overwhelming majority of the population, is severely under-resourced and under-capacitated.  This means that quality health care in South Africa is often dependent on patients' ability to afford private sector care.  As the State attempts to address these untenable inequalities, interest groups, patients and activists continually articulate demands for care, as well as support or opposition to health system transformation, in rights terms.  The South African Constitution of 1996 contains several justiciable socio-economic rights, including a right to have access to health care services, as well as a number of other rights, such as the right to equality, which are relevant to health system reform.  This means that courts are increasingly called upon to pronounce on issues of health system transformation.  Relying on examples from South African caselaw and literature pertaining to the transformative potential of social rights litigation, the paper first considers the extent to which judgments involving health-related rights have impacted on the lives of patients and on the strength of the social movements that represent them.  Thereafter, the paper turns to theory pertaining to the bureaucratic impact of judicial decisions, in seeking to explain the seemingly disparate impact that judgments upholding the right to health have had on the South African government's efforts to transform the health system.