Securing South Africa: Why Healthcare is a Citizen’s Right, Not a Migrant’s Entitlement

This article presents a comprehensive analysis of the legal, ethical, and socio-economic complexities surrounding access to healthcare for foreign nationals in South Africa. The current landscape is defined by a profound tension between the nation’s constitutional ideals and the stark realities of a public health system in crisis. This has fueled a volatile public debate, often characterized by xenophobic sentiment and the scapegoating of migrants for systemic failures. This analysis acknowledges the unequivocal constitutional right of “everyone” within South Africa’s borders to access healthcare services, particularly emergency medical treatment. However, it advances the thesis that the nature and extent of the state’s obligation to fulfill this right are, and must be, differentiated based on citizenship and legal status.

For South African citizens, the right to access comprehensive healthcare is an integral component of the social contract, an entitlement derived from their contributions and the state’s primary duty to its people. For non-citizens, while the right to emergency care and treatment for communicable diseases remains inviolable under both constitutional and public health imperatives, access to the full spectrum of state-subsidized, non-emergency healthcare should be framed as a regulated privilege. This privilege ought to be contingent upon factors such as legal status, direct contribution to the fiscus, and the state’s capacity as defined by the constitutional principle of “available resources.”

Crucially, this report debunks the pervasive and damaging narrative that foreign nationals are the principal cause of the public health system’s decline. Evidence from sources including the World Bank, the OECD, and local demographic data indicates that immigrants constitute a small fraction of the population and make a net positive contribution to the economy and public finances. The true maladies crippling the system are endemic corruption, gross mismanagement, and systemic inefficiencies, which have siphoned off billions of rands and fatally undermined service delivery.

By examining comparative policy models from the United Kingdom, Germany, and Botswana, this report identifies established international precedents for differentiating healthcare access for non-citizens through mechanisms such as health surcharges, tiered access, and user-fee systems. Drawing upon these examples, this report concludes by proposing a tiered, sustainable, and legally defensible policy framework for South Africa. This framework aims to uphold the nation’s core constitutional and ethical duties while establishing a rational, transparent, and fair system that prioritizes citizens, requires contributions from long-term residents, and ends the current chaotic and inhumane practice of arbitrary denial of care at the clinic door.

II. The Constitutional Promise and Its Practical Limits

The debate over healthcare access for foreign nationals in South Africa is fundamentally a constitutional one. The nation’s supreme law, born from a struggle for human rights, establishes a broad and inclusive vision of healthcare access. However, it also contains pragmatic limitations that provide a legal basis for a more nuanced and differentiated policy than is often acknowledged. A careful reading of the Constitution reveals that it is possible to reconcile the universalist promise of “everyone” with the sovereign reality of finite resources and the special obligations a state owes to its citizens.

2.1. Section 27: The Unqualified Right of “Everyone”

The cornerstone of healthcare rights in South Africa is Section 27 of the Constitution of the Republic of South Africa, 1996. Its text is unambiguous and expansive. Section 27(1) states, “Everyone has the right to have access to healthcare services, including reproductive healthcare”. The choice of the word “everyone” is deliberate and significant. It is not limited to “citizens” or “residents.” As affirmed by the South African Human Rights Commission (SAHRC), this constitutional provision means that all people within South Africa’s borders—regardless of nationality, legal status, race, or income—are entitled to access healthcare services. This explicitly includes South African citizens, refugees, asylum seekers, documented and undocumented migrants, and other vulnerable populations.

This constitutional mandate is given legislative effect through the National Health Act 61 of 2003. The Act reinforces the principle of universal access, particularly at the primary level, stating that all persons in South Africa can access primary healthcare at clinics and community health centres. It further specifies that certain vulnerable groups, namely pregnant or breastfeeding women and children under the age of six, are entitled to free healthcare services at any level, a provision that has been upheld by the courts to apply irrespective of nationality or documentation status.

The Constitution establishes an even more absolute and non-negotiable floor for care in Section 27(3), which declares: “No one may be refused emergency medical treatment”. This provision is unconditional, applying to both public and private health facilities and ensuring that life-saving care cannot be withheld under any circumstances. This right is the irreducible minimum, a humanitarian and legal obligation that forms the bedrock of South Africa’s healthcare ethics. The SAHRC has repeatedly expressed deep concern over reports of healthcare facilities denying treatment based on nationality, deeming such practices unlawful, unethical, and inconsistent with both domestic and international human rights law.

The legal framework, on its face, appears to create a universal entitlement. However, this broad interpretation creates a significant challenge when confronted with the realities of a resource-constrained state. The framers of the Constitution anticipated this tension and built mechanisms into the text to manage the state’s obligations, shifting the focus from the scope of the right (who is covered) to the implementation of that right (how it is fulfilled).

2.2. Sovereignty, Citizenship, and the Social Contract: Interpreting “Progressive Realisation” and “Available Resources”

While Section 27(1) establishes a universal right, Section 27(2) provides the crucial qualifications that govern its implementation. It states that “The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights”. These phrases—”reasonable measures,” “within its available resources,” and “progressive realisation”—are not escape clauses but constitutional tools for managing the state’s socio-economic duties in a pragmatic and sustainable manner. They provide the legal foundation for an argument that distinguishes the state’s obligations to its citizens from its obligations to non-citizens for non-emergency care.

The concept of a social contract is central to this interpretation. A sovereign state enters into a unique covenant with its citizens, a reciprocal relationship wherein citizens contribute to the state through taxation and civic duty, and the state, in turn, provides services and protections. While a state has humanitarian obligations to all people within its borders, its primary duty of provision, particularly for costly, long-term socio-economic benefits, is to its citizenry. Therefore, a “reasonable measure” for a government must include the ability to prioritize the allocation of taxpayer-funded resources to the citizens who provide them.

The phrase “available resources” must be understood not as an abstract ideal but as the finite pool of public funds. The Constitutional Court, in the landmark case of Soobramoney v Minister of Health (KwaZulu-Natal), affirmed the principle that the right to access healthcare is not absolute and does not entitle an individual to demand any and all treatment the state cannot afford. The court acknowledged that the state must make difficult choices in rationing scarce resources. While the

Soobramoney case concerned the rationing of chronic renal dialysis for a citizen, its core principle is directly applicable: the state has the legal authority to limit access to non-emergency services based on resource constraints. Differentiating access based on citizenship and legal status can be construed as a rational and “reasonable” method of such rationing.

This interpretation is further necessitated by a glaring contradiction within South Africa’s legislative framework. While the National Health Act and the Refugees Act promote inclusive access, the Immigration Act imposes a conflicting duty on public officials, including healthcare workers, to ascertain the legal status of individuals and report any “illegal foreigner” to the Department of Home Affairs. This places healthcare providers in an untenable ethical and legal position, forcing them to choose between their duty to treat and a statutory obligation to act as immigration enforcement. This legal incoherence has resulted in a chaotic and discriminatory reality on the ground, where access to care is often determined by the discretion or prejudice of individual administrators rather than by clear, consistent policy.

Therefore, developing a policy that formally differentiates access to non-emergency care is not an assault on the Constitution. Rather, it is a “reasonable legislative measure” designed to resolve this statutory conflict and manage “available resources” in a manner that respects the social contract with citizens while upholding the fundamental human right to emergency care for all. It seeks to replace the current system of arbitrary, ad-hoc denial with a transparent, predictable, and legally grounded framework.

III. Diagnosing the Crisis: Scapegoats and Systemic Disease

The intense and often violent debate surrounding foreign nationals’ access to healthcare in South Africa is fueled by the visible deterioration of the public health system. Long queues, staff shortages, and a lack of basic medical supplies are daily realities for millions who depend on state facilities. In this environment of frustration and desperation, a potent political narrative has taken hold: that foreign nationals are the cause of this collapse, draining scarce resources meant for South Africans. However, a rigorous examination of the evidence reveals this narrative to be a dangerous fiction. The true malady is not the presence of migrants but a deeply entrenched and systemic disease of corruption and mismanagement that has crippled the health sector from within.

3.1. The Narrative of the Foreign Burden: Fact vs. Fiction

The claim that foreign nationals are overwhelming South Africa’s healthcare system is a recurring theme in public discourse, most visibly articulated by political figures and anti-migrant groups. Limpopo’s former MEC for Health and current Premier, Dr. Phophi Ramathuba, gained notoriety for a viral video in which she told a Zimbabwean patient that foreigners were “killing my health system” and were not accounted for in her budget. Such statements, while factually incorrect, provide official sanction for the actions of vigilante groups like Operation Dudula, whose members have physically blockaded clinics to deny entry to foreign nationals.

This narrative, however, crumbles under empirical scrutiny.

• Demographic Reality: At a national level, foreign-born individuals constitute a small minority of the total population. Data suggests that only 3-4% of people in South Africa are from outside the country, which implies that their utilisation of public services, including healthcare, is proportionally small. While certain facilities in border areas or specific urban neighbourhoods may experience higher concentrations, this is a localised pressure point, not a national inundation.
• Economic Contribution: Far from being a net drain, evidence indicates that immigrants make a significant positive contribution to the South African economy. A 2018 World Bank study found that between 1996 and 2011, each immigrant worker generated approximately two jobs for local citizens. This is partly because immigrants are more likely to be entrepreneurial and start businesses that employ South Africans.
• Fiscal Impact: A joint report by the Organisation for Economic Co-operation and Development (OECD) and the International Labour Organisation (ILO) concluded that immigrants have a positive net impact on South Africa’s fiscal balance. They tend to pay more in taxes and social contributions than they consume in individual benefits. In 2011, the per-capita net fiscal contribution of immigrants was positive, ranging between 17% and 27%, while the contribution of native-born individuals was negative (-8%).
• The “Healthy Migrant Effect”: Multiple studies have documented the “healthy migrant effect,” a phenomenon where migrants are, on average, healthier than the host population upon arrival. They are often young, working-age individuals who have migrated for employment, not primarily to seek healthcare.

The persistent gap between these facts and the public narrative suggests that the focus on foreign nationals serves a political purpose. It deflects public anger away from the true sources of the healthcare system’s failure and directs it toward a vulnerable and easily identifiable scapegoat.

3.2. The True Malady: A System Crippled by Corruption and Mismanagement

The real cause of the South African public health crisis is not the patient in the next bed, but systemic failure rooted in decades of corruption, mismanagement, and a lack of accountability. The financial and human costs of this internal decay are staggering and far exceed any conceivable impact of immigration.

A report by Corruption Watch, based on nearly 700 whistleblower accounts between 2012 and 2019, painted a damning picture of the health sector. The most prevalent forms of corruption were identified as employment corruption, including nepotism (39%); procurement irregularities (22%); and embezzlement of funds (16%). These are not isolated incidents but systemic practices that hollow out the system. High-ranking officials, administrators, and medical professionals were identified as the primary perpetrators.

The financial haemorrhage is immense. The Council for Medical Schemes estimated that fraud in the private healthcare system costs around R22 billion annually, indicating the scale of the problem across the entire sector. In the public sector, a study of provincial health departments found R24 billion in irregular expenditure over just a four-year period (2009-2013). More recently, the Auditor-General flagged R1.8 billion in fruitless and wasteful expenditure in the 2022/23 financial year alone. During the COVID-19 pandemic, this vulnerability was exploited on a massive scale, with billions of rands in procurement contracts awarded to unlicensed and politically connected companies for overpriced and substandard Personal Protective Equipment (PPE).

This corruption has devastating real-world consequences for patients. It leads directly to shortages of essential medicines, malfunctioning or unavailable medical equipment, and critical staff vacancies that cannot be filled. The most tragic illustration of this systemic failure was the Life Esidimeni scandal, where 144 psychiatric patients died after the Gauteng Department of Health moved them to unregistered and incompetent NGOs, some of which had corrupt relationships with senior officials.

The following table starkly contrasts the documented financial drain from corruption with the established economic contributions of immigrants, revealing the profound misdirection at the heart of the public debate.

Table 1: The Financial Reality of South Africa’s Public Health Sector

It is clear that the resources lost to graft and maladministration dwarf any potential costs associated with providing healthcare to foreign nationals. Any serious reform of the South African health system must therefore begin with a relentless focus on tackling corruption and enforcing accountability. Clarifying the policy on healthcare for migrants is a necessary but secondary step, essential for ending their use as a convenient scapegoat for the state’s own profound failings.

IV. Global Precedents: Comparative Models for Managing Access

South Africa is not unique in grappling with the challenge of providing healthcare to non-citizens within a resource-constrained public system. Many countries have developed legal and policy frameworks that seek to balance humanitarian obligations, public health imperatives, and the principles of national sovereignty and fiscal responsibility. An examination of these international models reveals that differentiating access to healthcare based on immigration status and contribution is a common and accepted practice. These precedents offer valuable insights for developing a more coherent, sustainable, and legally defensible system for South Africa.

4.1. The Contribution Model: The United Kingdom’s Immigration Health Surcharge (IHS)

The United Kingdom’s National Health Service (NHS) operates on a residency-based system. Eligibility for the full range of free healthcare services is primarily determined by being “ordinarily resident” in the UK, a status that requires lawful and settled residence. For non-European Economic Area (EEA) nationals seeking to reside in the UK for longer than six months (e.g., on work or student visas), this principle is operationalized through the Immigration Health Surcharge (IHS).

The IHS is a mandatory, upfront fee paid as part of the visa application process. In 2023, this fee was increased to £1,035 per person per year. Payment of the surcharge grants the visa holder and their dependents access to the NHS on largely the same basis as a permanent resident for the duration of their visa. This model establishes a clear principle of contribution: those who come to the UK for extended periods for work or study are required to contribute directly to the healthcare system they are entitled to use.

Crucially, the IHS system coexists with universal access for certain essential services. Treatment in an Accident & Emergency department, services for specified communicable diseases, and compulsory psychiatric treatment are free to everyone, regardless of immigration status or payment of the surcharge. Furthermore, vulnerable groups such as refugees, asylum seekers, and victims of human trafficking are exempt from the surcharge and from charges for NHS hospital treatment. The UK model thus provides a clear precedent for a two-pronged approach: it upholds the universal right to emergency and essential public health services while linking the privilege of comprehensive, routine care to legal status and a direct financial contribution.

4.2. The Tiered-Access Model: Germany’s Asylbewerberleistungsgesetz (Asylum Seekers’ Benefits Act)

Germany’s approach provides a legal precedent for a tiered system where the level of healthcare access is explicitly linked to the duration of a non-citizen’s stay. The Asylbewerberleistungsgesetz (Asylum Seekers’ Benefits Act) governs the benefits provided to asylum seekers and certain other foreign nationals.

For the first 36 months of their stay, individuals covered by this Act have their healthcare access statutorily restricted. They are entitled only to treatment for “acute diseases or pain,” as well as necessary care related to pregnancy and childbirth, and essential vaccinations. This is a significantly lower level of care than that available to German citizens or long-term residents. After the 36-month waiting period, asylum seekers become eligible for “analogous benefits,” which grants them access to the statutory health insurance system on the same basis as German citizens receiving social welfare.

The implementation of this system presents significant practical challenges. In many municipalities, asylum seekers must obtain a treatment voucher (Behandlungs-schein) from a social welfare office before seeing a doctor, creating a bureaucratic barrier where non-medical personnel make decisions about the necessity of care. The ambiguity in defining what constitutes “necessary” treatment for a chronic condition leads to inconsistent application across Germany’s federal states, with some states issuing standard health insurance cards to streamline access while others maintain the restrictive voucher system. Despite these implementation flaws, the German model establishes a clear legal principle: a state can lawfully create distinct tiers of healthcare access for non-citizens, with rights expanding over time as their residency becomes more established.

4.3. The User-Fee Model: Botswana’s Pragmatic Approach

As a fellow member of the Southern African Development Community (SADC), Botswana offers a regionally relevant and pragmatic model. Botswana provides universal healthcare that is largely free for its citizens, funded by state revenues. However, this entitlement is not extended in the same way to non-citizens.

Foreign nationals, including expatriates and other migrants, are required to pay a fee for public medical services. While these fees are often nominal and heavily subsidized compared to private care, they establish the principle of cost-recovery from non-citizen users. For example, a consultation fee might be P30 for a non-citizen compared to P5 for a citizen. For comprehensive coverage, expats are generally expected to secure private international health insurance, as the public system is not designed to cater fully to their needs.

Botswana’s system also demonstrates policy flexibility in the face of public health crises. Recognizing the danger of creating a reservoir of untreated disease, the government made a significant policy shift in 2019 to extend free antiretroviral (ARV) treatment for HIV to all foreign residents, closing a critical gap in its epidemic response. This decision highlights a mature understanding that for certain communicable diseases, an inclusive treatment policy serves the health interests of the entire population, both citizens and non-citizens. Botswana’s model thus balances the principle of citizen priority with a user-pays system for non-citizens, while retaining the flexibility to provide free, universal access where there is a clear public health imperative.

The following table provides a comparative summary of the healthcare access models in these countries alongside the current, often contradictory, system in South Africa.

Table 2: Comparative Healthcare Access Models for Non-Citizens

V. A Proposed Framework for South Africa: From Contested Right to Regulated Privilege

The current state of healthcare access for foreign nationals in South Africa is untenable. It is defined by legal ambiguity, systemic decay, and a volatile political climate that results in inhumane and arbitrary denials of care at the clinic door. This reality serves neither South African citizens, who see their health system crumbling, nor non-citizens, who are used as scapegoats and denied their fundamental rights. A new approach is required—one that is constitutionally sound, fiscally responsible, and ethically clear. This report proposes a framework that moves away from the current chaotic system toward one of regulated access, affirming the state’s core duties while establishing a fair and transparent hierarchy of entitlement.

5.1. Upholding the Core, Regulating the Periphery

The foundational principle of the proposed framework is to distinguish between the state’s non-negotiable duties and its discretionary responsibilities. The constitutional core—the right of “everyone” to emergency medical treatment under Section 27(3)—must be upheld and rigorously enforced. This is an absolute, humanitarian imperative.

Furthermore, a pragmatic public health approach dictates that primary healthcare services, particularly for the prevention and treatment of communicable diseases like Tuberculosis (TB) and HIV, must remain broadly accessible to all persons within South Africa’s borders, regardless of their status. Denying treatment for such diseases is not only a violation of an individual’s rights but also a direct threat to the health of the entire community, as it allows for the unchecked spread of infection. The exclusion of migrants from such essential services creates a public health hazard that ultimately affects citizens and non-citizens alike.

Beyond this protected core, access to the full suite of non-emergency, secondary, and tertiary healthcare services should be managed as a regulated privilege. This approach acknowledges the state’s finite resources and its primary obligation to its citizens, aligning with the constitutional mandate to take “reasonable measures” within “available resources”. This would shift the system from one of implicit, universal entitlement fraught with arbitrary denial to one of explicit, conditional access based on clear, legally defined criteria.

5.2. Policy Recommendations

To translate this principle into practice, the following four interconnected policy reforms are proposed:

1. Implement a Formalized System of Means-Tested User Fees for Non-Citizens: Drawing from the pragmatic model in Botswana and existing, albeit inconsistently applied, policies in South Africa, a uniform, nationwide system of means-tested user fees should be implemented for non-emergency hospital and specialist care for all non-citizens. Refugees and asylum seekers, who are afforded the same rights as citizens under the Refugees Act, would be subject to the same means test as South Africans. Other categories of migrants, including undocumented individuals from the SADC region, would also be means-tested, while those from outside SADC or on visitor’s visas would be liable for the full cost of care. This formalizes a system of fair contribution, ensuring that non-citizens contribute to the cost of the services they consume, while aligning their treatment with the existing system for citizens.

2. Establish a Mandatory Health Access Surcharge for Long-Term Visa Holders: Inspired by the UK’s successful Immigration Health Surcharge (IHS), South Africa should introduce a mandatory Health Access Surcharge for all individuals applying for temporary residency visas (e.g., work, study, business) valid for more than six months. This upfront payment, made as part of the visa application process, would constitute a direct contribution to the national health budget. In return, these legal, long-term residents and their dependents would be granted a health access card entitling them to use the public health system on the same basis as a South African citizen for the duration of their visa. This creates a clear and fair pathway to access for legal, economically active migrants and provides a new, dedicated revenue stream for the health sector.

3. Strengthen and Enforce Bilateral and SADC Health Agreements: South Africa is a signatory to the SADC Protocol on Health and has at least 13 bilateral health agreements with 11 other African nations, including all its immediate neighbours. These agreements provide for cooperation on a range of issues, including the referral of patients for tertiary care. Currently, these agreements are poorly implemented, with no effective mechanisms for cost-recovery for cross-border patients. The government should initiate a high-level diplomatic process to review, update, and—most importantly—operationalize these agreements. This should include establishing clear billing and reimbursement protocols to ensure that the healthcare systems of neighbouring countries contribute to the cost of care for their citizens treated in South Africa, as envisaged by the principle of regional cooperation.

4. Decriminalize Healthcare Provision: Amend the Immigration Act: The current legal framework creates an irreconcilable conflict for healthcare workers, pitting their ethical duty to care against a statutory duty to act as immigration police. This provision must be repealed. Forcing medical professionals to demand documentation and report undocumented patients actively deters vulnerable individuals from seeking care, especially for communicable diseases like TB and HIV. This fear creates hidden reservoirs of disease that threaten public health at large. Healthcare facilities must be declared zones of public health and safety, not sites of immigration enforcement. The role of identifying and processing undocumented individuals must reside solely with the Department of Home Affairs and the South African Police Service, as stated by the SAHRC. This reform is essential to protect the ethical integrity of the medical profession and to safeguard the health of the entire population.

 Towards a Sustainable and Sovereign Health Policy

The prevailing situation surrounding healthcare access for foreign nationals in South Africa is a paradox of noble intentions and catastrophic outcomes. The nation’s constitutional promise of healthcare for “everyone” is a testament to its commitment to human dignity, yet the reality on the ground is one of systemic collapse, where care is often denied arbitrarily at the clinic gate. This chaotic environment is unjust to all: it fails South African citizens who witness the degradation of a vital public service, and it dehumanizes non-citizens who are scapegoated for these deep-seated failures. The current approach is unsustainable, breeding social conflict while failing to address the root causes of the healthcare crisis.

This report has argued that the path forward lies not in abandoning constitutional principles, but in interpreting them with the pragmatism they were designed to accommodate. The distinction between a fundamental right and a regulated privilege is not a semantic game; it is an act of responsible governance. It acknowledges that while a state has a universal humanitarian duty to provide emergency care, it has a specific and deeper socio-economic obligation to the citizens who form the basis of its sovereignty and fund its operations.

The proposed framework—built on the pillars of means-tested user fees, a health surcharge for legal residents, strengthened regional agreements, and the decriminalization of healthcare provision—is not a retreat from human rights. On the contrary, it seeks to replace a system of unpredictable, often xenophobic, denial with one that is transparent, legally coherent, and humane. It upholds the inviolable right to emergency care for all. It creates a fair and predictable pathway for legal migrants to access and contribute to the system. It respects the ethical duties of medical professionals. And, most importantly, it allows the state to prioritize its citizens in the allocation of scarce, non-emergency resources, as demanded by the social contract.

Ultimately, addressing the healthcare crisis requires a courageous confrontation with its true cause: the devastating impact of corruption and mismanagement. No policy on migration can solve a problem rooted in graft. However, by implementing a rational and differentiated framework for healthcare access, South Africa can remove the convenient scapegoat that has for too long distracted from this essential fight. It can move towards a health policy that is not only sustainable and equitable but also an affirmation of its sovereignty and its primary commitment to the well-being of its own people.