This dissertation is an evaluation of the concept of a minimum core content to the constitutional right to health, with particular reference to HIV-positive persons in South Africa. The analysis involves an assessment of what the minimum core entails; whether such a formulation is necessary in the South African health context; the application of the concept in national and international law; as well as enforcement and implementation in the South African context. An appraisal of the South African social reality reveals the extent of the suffering of HIV-positive individuals and the difficulties experienced in accessing health care, especially for the vulnerable and disempowered. The problem is exacerbated by a critical inadequacy in national jurisprudence which fails to generate certainty in respect of the minimum, basic entitlements of affected people. Such a shortcoming maligns transformative constitutionalism, which requires the judiciary to develop a construction of human rights that accords with the canons of the Constitution. It is argued that one such course of action is the adoption of the minimum core, which prescribes a basic level of human rights that is guaranteed to all people – and which may withstand legislative challenge on the basis of resource constraints or progressive realisation. Reference to international law, in terms of Section 39(1) of the Constitution, assists us to overcome the shortcoming in domestic legislation in this regard. Of particular relevance is covenantal guidance offered by the ICESCR, and its guidelines of interpretation, which include the CESCR General Comments and the WHO recommendations. It is postulated that a minimum obligation to HIV-positive individuals under the right to health encompasses the duty of treatment and prevention and control in respect of the epidemic, on a non-discriminatory basis. Enforcement and implementation of such core obligations must be strictly and timeously effected. Of crucial importance in such a process is a competent judiciary that is able to resist an undue deference to the legislature. A review of court judgments, however, reveals an inadequate judicial approach to the implementation of socioeconomic rights and an appeal is made to the Constitutional Court to re-commit itself to an interpretation of the Bill of Rights that accords with Constitutional values, such as uBuntu. / Thesis (LL.M.)-University of KwaZulu-Natal, Durban, 2014.

Lack of access to essential medicines has proven to be a persisting problem which is in conflict with the goal of realising the right to health envisaged by the South African constitution and international human rights instruments. With more than twenty years of democracy, South Africa is still plaguing with a multiplicity of pandemics such as HIV and AIDS, cancer, malaria, tuberculosis, among others, leading to premature death and untold suffering of the people. According to a 2015 United Nations AIDS (UNAIDS) Gap report, South Africa is still regarded as the epicentre of HIV and other infectious diseases. The 2015 UNAIDS Gap report states that South Africa has more women than men living with HIV and AIDS. The report further indicates that the impact of this pandemic is worsened by the inaccessibility of essential medicines that are vital for life saving. This dissertation posits that the epidemiological health crisis described above can be largely eradicated through the utilisation of the right to health. The right to health, according to this dissertation, contains a legal and transformative power which can be utilised to limit the negative impact of patent laws on access to essential medicines in South Africa. This dissertation validates the long held view that World Trade Organisation (WTO) intellectual property laws have contributed to the inaccessibility of essential medicines through causing patent ever greening, patent linkages and pharmaceutical company’s monopolies. Consequently, many marginalised groups in South Africa lack access to essential medicines owing to the higher prices charged for such medicines thus violating the right to health, life and other fundamental human rights. The right to health which is the immediate right infringed when there is lack of access to essential medicines form the core theme of this dissertation. This dissertation argues that access to essential medicine is a fundamental part of the right to health protected under international and national human rights instruments. This dissertation further argue that the right to health imposes obligations which requires South African government to take reasonable legislative and other measures, within its available resources, to provide access to essential medicines. The dissertation‘s key contribution is its proposed solutions on how to ensure that patents rules in South Africa are tamed with obligations consistent with the right to health. If properly implemented, these solutions have the potential to give greater specification to the normative commitments imposed by the right to health in the patent claims scenarios.

Thesis (M.Dev. (Management and Law)) -- University of Limpopo, 2013 / Section 27 of the Constitution of the Republic of South Africa, 1996 provides that everyone has a right to have access to health care. South Africa embraces the concept of universal health care coverage. Access to health care has four dimensions: geographic accessibility, availability, financial accessibility and acceptability. If there were barriers to access to health care, the stake-holders would be duty-bound to design interventions requisite to address those barriers. The aim of the study was to establish whether health care users enjoy the right to have access to health services at Ratshaatsha Community Health Centre (RCHC). The study used a combination of quantitative and qualitative research designs. While a questionnaire was used to collect quantitative data, focused group discussions and participant observations were employed to collect qualitative data. The following are the main findings of the study. Human rights instruments clearly spell out the indivisible and mutually supportive rights that persons have. There are barriers that often affect the rights to have access to health services at RCHC. For instance, the RCHC is not within a 25 km radius of some of the consumers of health care. The roads that link up the health care users and RCHC are in poor condition. The community is generally poverty-stricken. Many cannot afford, among others, the costs of basic needs, transport fares and opportunity costs. Travelling distance and time, scarce skills and lack of medication and equipment rank among demand-side and supply-side barriers to access to health care. Health care users often choose to consult churches and traditional healers. It is recommended that government should, among others, co-ordinate primary health care services in collaboration with churches and traditional healers; commission research into traditional health medicine and healing procedures and protocols of other health care providers; develop policy on cross-referral of patients; improve community participation; set minimum norms and standards for the delivery of alternative health care services; establish health care management guidelines for churches and traditional healers; integrate health care provisioning into IDPs; and provide health care in an integrated intergovernmental manner.

The right to have access to health care services is enshrined in section 27 of the South African Constitution of 1996 as one of the socio-economic rights protected by this Constitution. In order to observe the entitlements in this human right, the South African government has since 1994, embarked on legislation, policies and programmes to improve access to health care services among vulnerable and disadvantaged groups in South Africa. As a result of the measures put in place by the government, enormous progress has been registered since their enforcement, in respect of access to health care services. However, as evident in some reports such as the 7th Report on Economic and Social Rights by the South African Human Rights Commission and studies conducted by the Studies in Poverty and Inequality Institute (SPII), it is revealed that the measures adopted by the government to improve access to health care services have not effectively translated the entitlements of this right to the population of South Africa. This study is motivated by the disclosure of these concerns, irrespective of the measures put in place by the government to achieve universal access to health care services. The study therefore aims at stressing the importance of upholding the right to have access to health care services in the social transformation process of South Africa. In doing so, it will investigate current health care reforms in South Africa and make recommendations on how to effectively interpret and implement section 27 of the Constitution to achieve equal benefits on access to health care services to everyone in South Africa. / Jurisprudence / LL. M.

Thesis (M. Dev.) --University of Limpopo, 2013 / Section 27 of the Constitution of the Republic of South Africa, 1996 provides that everyone has a right to have access to health care. South Africa embraces the concept of universal health care coverage. Access to health care has four dimensions: geographic accessibility, availability, financial accessibility and acceptability. If there were barriers to access to health care, the stake-holders would be duty-bound to design interventions requisite to address those barriers. The aim of the study was to establish whether health care users enjoy the right to have access to health services at Ratshaatsha Community Health Centre (RCHC). The study used a combination of quantitative and qualitative research designs. While a questionnaire was used to collect quantitative data, focused group discussions and participant observations were employed to collect qualitative data. The following are the main findings of the study. Human rights instruments clearly spell out the indivisible and mutually supportive rights that persons have. There are barriers that often affect the rights to have access to health services at RCHC. For instance, the RCHC is not within a 25 km radius of some of the consumers of health care. The roads that link up the health care users and RCHC are in poor condition. The community is generally poverty-stricken. Many cannot afford, among others, the costs of basic needs, transport fares and opportunity costs. Travelling distance and time, scarce skills and lack of medication and equipment rank among demand-side and supply-side barriers to access to health care. Health care users often choose to consult churches and traditional healers. It is recommended that government should, among others, co-ordinate primary health care services in collaboration with churches and traditional healers; commission research into traditional health medicine and healing procedures and protocols of other health care providers; develop policy on cross-referral of patients; improve community participation; set minimum norms and standards for the delivery of alternative health care services; establish health care management guidelines for churches and traditional healers; integrate health care provisioning into IDPs; and provide health care in an integrated intergovernmental manner.

Thesis (LLM)--Stellenbosch University, 2012. / Includes bibliography / ENGLISH ABSTRACT: In South Africa gender-based violence (hereafter “GBV”) has reached extreme levels. This violent manifestation of gender inequality is compounded by the fact that women are disproportionately affected by poverty, the HIV/AIDS epidemic and inadequate health care services. This is in spite of South Africa’s progressive constitutional and legislative framework which appears highly conducive to combating gender inequality and GBV. For example, the Constitution protects the right to equality (section 9), human dignity (section 10), life (section 11), freedom and security of the person (section 12) and the right to have access to health care services, including reproductive health (section 27(1)(a)). Extensive legislation has also been enacted for the protection of women. For example, the preamble to the Domestic Violence Act 116 of 1998 (hereafter “DVA”) recognises domestic violence as a serious social evil. While the DVA is notably silent as to the role of the health care sector, the DVA is progressive in that it contains a broad definition of domestic violence, and recognises a wide range of relationships. The Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 also seeks to afford complainants of sexual offences “the maximum and least traumatising protection that the law can provide”. In addition to this, South Africa has international law obligations to address GBV and gender inequality. For example, under the Convention on the Elimination of All Forms of Discrimination against Women (1979), States are obliged to address private acts of violence and to remove discrimination against women in all fields, including health. However, despite this progressive framework of rights, some interpretations of these integral rights have been unduly formalistic, in addition to being disengaged from the lived reality of many women. There is also a substantial gap between policy and practice, with the implementation of existing legislation a continuing problem. It is therefore imperative that we analyse the right to have access to health care services through a gender lens so as to transcend a purely legalistic perspective and to interrogate gendered social processes and power relations. This thesis analyses how existing law and policy can be transformed so as to be more responsive to these lived realities and needs of survivors of GBV. / AFRIKAANSE OPSOMMING: Geslagsgebaseerde geweld (hierna ‘GGG’) in Suid-Afrika het uiterste vlakke bereik. Hierdie gewelddadige manifestasie van geslagsongelykheid word vererger deur die feit dat vroue buite verhouding erg deur armoede, die MIV/vigs-epidemie en ontoereikende gesondheidsorgdienste geraak word. Dit is ondanks Suid-Afrika se vooruitstrewende grondwetlike en wetsraamwerk wat op die oog af hoogs bevorderlik vir die bestryding van geslagsongelykheid en GGG voorkom. Die Grondwet verskans, byvoorbeeld, die reg op gelykheid (artikel 9), menswaardigheid (artikel 10), lewe (artikel 11), vryheid en sekerheid van die persoon (artikel 12) en toegang tot gesondheidsorgdienste, met inbegrip van reproduktiewe gesondheidsorg (artikel 27(1)(a)). Omvattende wetgewing oor vrouebeskerming is ook reeds uitgevaardig. Die aanhef tot die Wet op Gesinsgeweld 116 van 1998 (hierna die ‘WGG’) identifiseer, byvoorbeeld, huishoudelike geweld as ’n ernstige maatskaplike euwel. Hoewel die WGG swyg oor die rol van die gesondheidsorgsektor, is dit nietemin vooruitstrewend aangesien dit ’n uitgebreide omskrywing van huishoudelike geweld bevat en ’n wye verskeidenheid verhoudings erken. Die Wysigingswet op die Strafreg (Seksuele Misdrywe en Verwante Aangeleenthede) 32 van 2007 is ook daarop afgestem om klaagsters van seksuele oortredings “die omvattendste en mins traumatiese beskerming te gee wat die wet kan bied”. Daarbenewens verkeer Suid-Afrika onder internasionale regsverpligtinge om GGG en geslagsongelykheid aan te spreek. Ingevolge die Konvensie vir die Uitwissing van Alle Vorme van Diskriminasie teen Vroue (1979), byvoorbeeld, is state verplig om privaat geweldsdade teen te staan en diskriminasie teen vroue op alle gebiede te verwyder, insluitend gesondheid. Nietemin, benewens hierdie vooruitstrewende menseregteraamwerk is sommige interpretasies van hierdie onafskeidbare regte nie net oormatig formalisties nie, maar ook verwyderd van die daaglikse realiteit van baie vroue. Daar is ook ʼn wesenlike gaping tussen beleidsmaatreëls en die praktyk, terwyl die uitvoering van bestaande wetgewing ʼn voortgesette probleem verteenwoordig. Dit is dus gebiedend om die reg op toegang tot gesondheidsorgdienste deur ʼn geslagslens te analiseer om sodoende ʼn bloot regsgedrewe perspektief te bo te gaan en om maatskaplike prosesse en magsverhoudinge in oënskou te neem. Hierdie tesis analiseer hoe bestaande wetsraamwerke en beleidsmaatreëls getransformeer kan word om beter te reageer op die realiteite en behoeftes van oorlewendes van GGG. / Stellenbosch University Hope Project / Bradlow Foundation

Thesis (M. Dev) -- University of Limpopo, 2013 / Refer to document

Women and children are often the most affected by pandemics which have swept through the world, and in this regard the HIV/AIDS pandemics is not an exception. The most common route of HIV infection in HIV positive children under 5 years of age is through Mother-To-Child Transmission (MTCT). In spite of the seriousness of this pandemic, the Constitutional Court has found that the measures taken by the South African government with regard to the Prevention of Mother-To-Child Transmission (PMTCT) has fallen short of what the Constitution requires. This dissertation critically reviews the management of the South African PMTCT programme, and discusses the relevant Court decisions. The study finally clarifies the obligations of the South Africa government in the context of PMTCT under the 1996 Constitution and in terms of international law. / Constitutional,International & Indigenous Law / LL.M. (Legal aspects of HIV/AIDS)

Women and children are often the most affected by pandemics which have swept through the world, and in this regard the HIV/AIDS pandemics is not an exception. The most common route of HIV infection in HIV positive children under 5 years of age is through Mother-To-Child Transmission (MTCT). In spite of the seriousness of this pandemic, the Constitutional Court has found that the measures taken by the South African government with regard to the Prevention of Mother-To-Child Transmission (PMTCT) has fallen short of what the Constitution requires. This dissertation critically reviews the management of the South African PMTCT programme, and discusses the relevant Court decisions. The study finally clarifies the obligations of the South Africa government in the context of PMTCT under the 1996 Constitution and in terms of international law. / Constitutional,International and Indigenous Law / LL.M. (Legal aspects of HIV/AIDS)

There are thousands of desperate people globally who need a kidney for transplantation. The number of people who require a kidney transplant continues to escalate faster than the number of kidneys available for a transplant. The aim of this dissertation is to examine and analyse the judicial framework pertaining to kidney transplants in South Africa. The examination is conducted within the framework of the South African Constitution and the National Health Act 61 of 2003. The specific focus of this dissertation is to determine whether the payment of kidney donors could be regarded as constitutionally acceptable. A comparative study is undertaken, with Singapore and Iran as a background against which recommendations for the South African regulatory framework are made. The most important finding is that people should at least be granted the choice whether they would prefer to receive payment for their kidney donations or not. / Jurisprudence / LL.M.