The Cancer Alliance represented by SECTION27 returned to court today in the matter of Cancer Alliance v the MEC for Health, Gauteng and 10 others. Today’s proceedings concerned an application for leave to appeal instituted by the provincial health respondents in the matter after a judgment delivered by the Court in Cancer Alliance’s favour on 27 March 2025. The Court granted the provincial health respondents leave to appeal the judgment to the Supreme Court of Appeal.
Cancer Alliance and SECTION27 will oppose the appeal and will continue to insist that the Gauteng Department of Health (“GDoH”) comply with the interim order, which in our view is not affected by the appeal process.
The GDoH is appealing the entire judgment despite the fact that all that is required of them by the court order is to comply with their constitutional obligation to provide radiation oncology services with the money that has been set aside for precisely this purpose; and to submit progress reports to the Court detailing plans to clear the backlog (information that should already be in their possession if they indeed intend to address the cancer crisis in the province).
While leave to appeal is frequently granted, the facts of the particular case as laid out in the judgment, and the order that the GDoH is appealing, are important to understand. Following years of advocacy over a growing backlog list of around 3000 cancer patients awaiting radiation oncology treatment in the province, GDoH agreed that given its current inability to meet the demand for radiation oncology services in the province, outsourcing the backlog to the private sector would be the most appropriate move particularly in light of the urgency of the treatment required and the extensiveness of the list of patients.
After considerable effort and advocacy by Cancer Alliance and SECTION27, in 2023, Gauteng Treasury allocated R784 million to “clear the backlog” of patients awaiting radiation oncology treatment. This money was to be distributed to GDoH over a three-year period in three tranches i.e. R250 million in the 2023/2024 financial year; R261 million in the 2024/2025 financial year and R273 million in the 2025/2026 financial year.
Despite advice from both the National Department of Health and Gauteng Treasury on lawful procurement measures that the GDoH could invoke in order to procure these life-saving services from the private sector urgently, GDoH chose to advertise and undergo a tender process in the normal course. This resulted in a failed tender outcome where only one of the three advertised categories was awarded. The category that was awarded was for radiation oncology planning services – which is not the required treatment for the patients but services to plan for the treatment. After GDoH failed to use the first tranche of ring-fenced funds (R250 million), the funds were returned to Treasury. We are uncertain about whether the second tranche was returned as well.
During the course of the litigation proceedings brought by Cancer Alliance, it transpired that the service provider appointed to provide the planning services was not paid for the first invoice. The subsequent tender issued by GDoH in July 2024 to make up for the unsuccessful procurement of category one and two services in the previous tender had also failed. It was only in September 2024, a year and six months after the ring-fenced funds were made available to GDoH, that GDoH decided to make use of the lawful procurement deviation mechanisms advised by NDoH and provincial treasury to outsource in the private sector. Even so, this was only done with respect to Steve Biko Academic Hospital and not at Charlotte Maxeke Johannesburg Academic Hospital where 2400 of the 3000 patients are registered.
That the GDoH will appeal a court order declaring its failure to provide patients in need of radiation oncology services unconstitutional; and requiring it to update the backlog list within 45 days, to provide services to the patients on the backlog list, and to report back to the Court within three months, is concerning.
Cancer Alliance represented by SECTION27 will oppose the appeal and trust that, pending the finalisation of this matter that continues to be characterised by widespread suffering, the GDoH will comply with the orders of the Court which are interim in nature, and will provide patients with the lifesaving radiation oncology services that they have been waiting for.
For media queries contact:
Pearl Nicodemus | nicodemus@section27.org.za | 082 298 2636
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