Legislative and executive translation of the right to have access to health care services

Abstract

It is the task of government to turn the basic rights contained in the Constitution into lived reality for South Africa's people by means of legislation and policy. Marius Pieterse focuses on the crucially important right of access to health care services, examining the extent to which the legislature and executive have translated this right into concrete, claimable individual entitlements. The author draws links between the creation of statutory or policy-based socio-economic entitlements, the establishment of processes through which they may be enforced and the extent to which beneficiaries are able to access them. Contrary to the conventional wisdom that non-enjoyment of the right to have access to health care services is due to lack of implementation of laws and policies rather than weaknesses in the laws and policies themselves, the author argues that legislative and executive "translation failures" are impacting detrimentally on access to treatment, especially by the most vulnerable. Against this background the article considers whether the current judicial approach to socio-economic adjudication is adequate to perceive and correct such "translation failures".