Six out of every ten children in South Africa are living in poverty. This
situation is aggravated by the AlDS pandemic. The pandemic is also the
cause of a generation of AlDS orphans and as a consequence a lot of
pressure is put on society's resources. Although the fundamental rights of
children are entrenched in the Constitution of the Republic of South Africa,
1996, the current legal and administrative framework is not being
implemented effectively in order to realise these rights.
The Constitutional Court has adjudicated upon several matters regarding the
realisation of socio-economic rights, thereby confirming that socio-economic
rights are indeed justiciable.
This research is specifically concerned with the realisation of children's right to
have access to health care as entrenched in sections 27 and 28(l)(c) of the
Constitution. Read with section 7(2) of the Constitution, this right places
negative as well as positive obligations on the state to respect, protect,
promote and fulfil children's right to have access to health care. Children's
right to health care are however dependent on the internal limitations
contained in section 27(2) of the Constitution which states that the state must
take reasonable legislative and other measures, within its available resources,
to achieve the progressive realisation of these rights. Having ratified the UN
Convention on the Rights of the Child (CRC), the state is further bound to
recognize the right of the child to the enjoyment of the highest attainable
standard of health and to facilities for the treatment of illness and rehabilitation
of health. Parties to the CRC shall also strive to ensure that no child is
deprived of his or her right of access to such health care services.
Good health is dependent on more than a mere right to have access to health
care. In order to ensure the highest attainable standard of health for all
children, it is necessary that the available services are affordable and
accessible on an equitable basis. Access to health care should be seen as
part of a more comprehensive social protection package to ensure a minimum
standard of living, consistent with the value of human dignity in our
Constitution.
In order to achieve this, the fragmented health care system which existed
before 1994 and which was mainly a result of the previous dispensation of
oppression and racial discrimination, had to be transformed in order to reach
the ideal of improving the quality of life of all citizens as contained in the
preamble of the Constitution.
Ten years after the inception of the new constitutional dispensation, it can be
said that the government is making progress with the transformation of the
health system and making it accessible to all people, including children. After
extensive research on the legislative and other measures that the government
has implemented in order to realise children's right to access to health care,
the following conclusions has been reached:
State policies regarding health care are taking account of the needs of
children as a vulnerable group of society and it can be said to be
reasonable in the formulation thereof. Regarding the implementation of
these policies, much remains to be done to ensure that the benefits thereof
reach the children, especially more vulnerable groups such as street
children and child-headed households - a common occurrence with the
high prevalence of HIVIAIDS in South Africa.
The enactment of the National Health Act 61 of 2003 is still awaited
although it has already been signed. This legislation provides a national
framework of norms and standards regarding the health care system and it
is mainly based on the rights of patients.
A new Children's Bill [B32 - 20031 has been introduced to parliament. The
bill deals extensively with the rights of children as contained in the
Constitution and also aims to give effect to governments' obligations in
terms of the CRC. The enactment of the bill should be given priority,
although measures should be implemented to ensure that health care
services are also accessible to children who are not assisted by adults
such as child-headed households.
The allocation of public funds should be considered in order to provide
better social assistance to families in dire need but mechanisms to ensure
that children benefit from social grants must be implemented. Many of
these grants are being abused by parents which means that although the
grants are available, the money is not always spent to better the plight of
the children. This is especially important in the light of the fact that the
primary obligation to take care of children vests in the parents.
The courts and especially the Constitutional Court, has taken their role in
realising socio-economic rights seriously and very important guidelines has
been formulated regarding the reasonableness of legislative and other
measures in this regard. After the Khosa-case it should be said that
although the courts are allowed to overstep the boundaries of separation of
powers, they should not rewrite these boundaries by not taking appropriate
account of the availability of financial resources. This also applies to the
executive and legislature which should act more effectively to implement
the court's decisions.
The Human Rights Commission is playing an important role with regard to
the realisation of socio-economic rights by monitoring and evaluating the
implementation of government programmes and legislation. The
Commission also provides valuable guidelines with regard to the
realisation of socio-economic rights in the form of annual reports submitted
to parliament. It is submitted that the Commission should however
consider to define minimum core obligations of socio-economic rights since
the Commission is better equipped to do this than the courts are. / Thesis (LL.M. (Public Law))--North-West University, Potchefstroom Campus, 2005.
| Identifer | oai:union.ndltd.org:netd.ac.za/oai:union.ndltd.org:nwu/oai:dspace.nwu.ac.za:10394/561 |
| Date | January 2004 |
| Creators | Kruger, Aneen |
| Publisher | North-West University |
| Source Sets | South African National ETD Portal |
| Detected Language | English |
| Type | Thesis |
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