Quote of the week

Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.

L'Heureux-Dube and McLachlin JJ
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
29 November 2007

The right of access to health or the right to die?

The Daily Dispatch must not be much loved by Ms Nomsa Jajula, the Health MEC for the Eastern Cape. First, the newspaper exposed the dire problems at Frere Hospital, problems which was of course denied by Jajula and her bosses, Manto Tshabalala Msimang and Thabo Mbeki (who then nevertheless pumped millions of Rands into it the Hospital to rectify the non-existent problems). Now the newspaper is campaiging against the closure of the Temba TB Hospital in Grahamstown which was upgraded with Lottery money a few years ago after community intervention and through community participation

It is unclear whether the Hospital is in fact earmarked for closure as part of the Eastern Cape Service Transformation Plan or not, because the Health Department is refusing to comment on the matter. However, if it closes down, TB patients in Grahamstown will have to travel 60 km to Port Alfred for treatment. In an editorial yesterday the Daily Dispatch quotes TB patient, Peggy Vaaltyn about the alleged closure: “We need treatment and we want to live. We rely on this hospital for our livelihood. Taking it away will kill us.”

The secretive “Transformation Plan” is aimed at improving access to health care in the Province but closing the Hospital would seem to do the opposite. That is why a petition signed by the mayor, councilors, political parties, churches, clinics and district health officers was submitted to Bisho to protest the alleged closure – so far to no avail

Section 27(1)(a) of the Constitution guarantees for everyone the right of access to health care while section 7(2) says the state (including the provincial government) has a duty, within the available resources, progressively to realise this right. The Constitutional Court, endorsing International Law on this point, said that the state would have a special duty to justify any “deliberately retrogressive measures” like closing a Hospital in order to justify such an action. What was required was for the Provincial government to act in a reasonable manner. It would therefore be difficult to justify the closing of an existing health facility that would require patients to travel 60km further than before at exorbitant cost for no clear-cut reason.

In the Treatment Action Campaign case the Constitutional Court also emphasized the need for government plans to be open and transparent and to be communicated widely and openly. The secrecy around the closure of the Hospital seems to fly in the face of the spirit of this Constitutional commitment.

It might well be that the Health Department has excellent reasons for closing the facility. The Eastern Cape is a poor area and they will probably argue that the money to run the facility could be spent better elsewhere. But if this is the case, the Provincial Government has a Constitutional duty to explain these reasons and take the community into its confidence. The failure to do so, suggests ulterior motives are at play. Do I smell a government tender or are there perhaps political reasons for the closure?

Could it perhaps be that the Health Department does not like the fact that the TB Hospital premises is owned by the TB Care Society of Grahamstown and that the Department resents the involvement of this society in the running of the Hospital? This would be par for the course for the Mbeki/Tshabalala Msimang school of paranoid government but it would not be reasonable and hence not constitutionally permissible.

This is perhaps an issue that must be taken up by the Treatment Action Campaign. Lawyers need to be briefed and threats issued to get the Department to see sense. In the end it is rather difficult for an individual or a few people to make effective use of the the right of access to Health Care in the Constitution. Like other social and economic rights they, become powerful legal and political tools if they are used in conjunction with organised action. The campaign of the Daily Dispatch is a start but without the threat of legal action one wonders whether the Peggy Vaaltyn’s of this world will not soon find themselves without a Hospital and without access to life saving TB treatment.

On quite a different level the secretive and arrogant behaviour of the MEC seems to symbolise what is wrong with the Mbeki government. Could it be that the ANC delegates from Grahamstown – including the mayor who signed the petition – were part of the over 300 delegates in the Eastern Cape to vote for Jacob Zuma at the nomination conference last week? Perhaps there is a perception that once we are rid of Mbeki we will be able to get rid of the kind of high handed politicians who do not listen to people and make technocratic decisions without any concern for how it will affect communities?

If Jacob Zuma is elected President of the ANC he will have a difficult task to manage these (pretty reasonable) expectations because the same arrogant officials quoting from their Transformation Plans will still be making the decisions. The vote for Zuma is perhaps a vote in favour of a more caring government. A government that will listen – even if it won’t be able to fix all the problems immediately. Zuma will find it difficult to instill such a culture among officials in the Eastern Cape – many who worked for the homeland government or have the attitude that the bigger ones car the more easily one can tell the poor to get stuffed.

At the moment his Royal Highness, Thabo Mbeki, is seen as an aloof and arrogant man allowing officials to get away with technocratic decisions that could have devastating effects on communities but would seem efficient from some other non-human perspective. If Zuma can deliver such a government, we might even get to start forgiving him his sexism and homophobia.

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