Court Cracks Down on Hospital Harassment of Migrants

Key Takeaways:

• The Gauteng Division of the High Court in Johannesburg has ordered the government and the SA Police Service (SAPS) to take immediate action to end the obstruction of access to public healthcare facilities in the province.
• The court’s judgment was in response to a case brought by the Treatment Action Campaign (TAC), Doctors Without Borders, and Kopanang Africa Against Xenophobia, who argued that state bodies had failed to intervene when anti-migrant groups harassed migrants at public clinics.
• The court ordered the government respondents to ensure safe and unhindered access to clinics, remove vigilantes, deploy trained security personnel, and post notices stating that obstruction of access is unlawful.
• The judgment marks a crucial victory for migrant health access and establishes clear accountability for government departments that have long deflected responsibility for xenophobia-driven barriers in the public health system.
• The TAC and its partners plan to ensure government compliance through a three-part strategy, including pressuring the Gauteng premier to act, pushing the MEC for health to empower clinic managers, and seeking further legal remedies.

Introduction to the Court Judgment
The Gauteng Division of the High Court in Johannesburg has issued a scathing judgment against the government and the SA Police Service (SAPS) for failing to prevent the obstruction of access to public healthcare facilities in the province. The judgment, handed down on December 4, orders multiple spheres of government and senior police officials to take immediate action to end the harassment and intimidation of migrants, pregnant women, children, and people living with HIV at public clinics. The case was brought by the Treatment Action Campaign (TAC), Doctors Without Borders, and Kopanang Africa Against Xenophobia, who argued that state bodies had failed to intervene when anti-migrant groups, including Operation Dudula, blocked access to clinics.

The Background to the Case
The TAC’s Gauteng provincial chairperson, Monwabisi Mbasa, explained that the final trigger for the court application was the escalation of violence and obstruction against groups already facing multiple layers of vulnerability. Despite a recent court judgment barring Operation Dudula from blocking access to hospitals, clinics, and schools, the TAC received reports that these practices had not stopped. The organization’s community-based structures, made up largely of public healthcare users, monitored clinics across Gauteng and observed that harassment, intimidation, and gatekeeping by anti-migrant groups were still occurring at several facilities. Incidents were recorded at Ivory Park, Tembisa, Diepsloot, Hillbrow Community Health Centre, and Mamelodi Community Health Centre, suggesting a widespread and persistent pattern of obstruction.

The Court’s Ruling
In his judgment, Judge Stuart Wilson rejected the argument by the national and provincial health departments that they had "outsourced" responsibility for the clinics to the City of Johannesburg through a service-level agreement. The judge noted that the agreement did not absolve provincial or national departments of oversight duties, but rather required joint coordination, shared planning, and co-responsibility between all three spheres of government. The SAPS also came under sharp scrutiny, with the judge highlighting the police’s constitutional mandate to prevent crime, maintain public order, and protect all inhabitants. The court granted extensive interim relief, directing 15 government respondents to immediately ensure safe and unhindered access to clinics, remove vigilantes, deploy trained security personnel, and post notices stating that obstruction of access is unlawful.

Reaction to the Judgment
The TAC and its partners welcomed the judgment as a crucial victory for migrant health access and a landmark moment in the fight against medical xenophobia. The organizations stated that the judgment marks an important affirmation that healthcare facilities are not battlegrounds for discrimination but spaces where dignity, equality, and life itself must be protected. The TAC’s Monwabisi Mbasa outlined a three-part strategy to ensure government compliance, including pressuring the Gauteng premier to act, pushing the MEC for health to empower clinic managers, and seeking further legal remedies. The organization plans to receive a structured legal opinion on the next course of action and will continue to monitor the situation and take further action as necessary.

Ensuring Government Compliance
The TAC and its partners are focused on ensuring that the government implements the court order and restores access to healthcare facilities for all, regardless of nationality. The organization will work with the Gauteng premier, the MEC for health, and other government officials to ensure that clinic managers are empowered to act decisively and that the SAPS takes proactive steps to prevent crime and maintain public order. The TAC will also continue to monitor the situation and take further action as necessary to ensure that the rights of migrants and other vulnerable groups are protected. The judgment is a significant step forward in the fight against medical xenophobia, and the TAC and its partners will continue to work tirelessly to ensure that healthcare facilities are safe and accessible for all.