A scathing court judgment handed down by the Johannesburg high court on Thursday afternoon will offer some comfort to cancer patients on the backlog list who have been waiting for life-saving treatment while the Gauteng department of health has been conducting themselves “as a law unto themselves”.
“When I was told about the judgment this afternoon, I immediately burst into tears. All I could think was ‘it’s over, the lies will end and this won’t happen any more,” said breast cancer survivor Lydia Staats, who was one of the case studies featured in the action.
Staats was diagnosed with breast cancer, underwent chemotherapy and surgery and was waiting for radiation — ideally to be administered within 90 days of surgery, according to Gauteng health protocols. But she was placed on the backlog list and by the time she was eventually called for radiation her cancer had returned.
As a result, she had to start her treatment all over again, go for more chemotherapy and more surgery before being placed back on the backlog list. Fortunately, she received radiation in July last year and is now clear.
To hear that things are going to get better, and this won’t keep happening to more people, is huge
— Lydia Staats, breast cancer survivor
“I can’t explain my feelings, they’re all over the place. It’s just such a relief. All I can think about is my friend who was on the waiting list but died in November. She would be so happy to hear this news,” Staats said shortly after getting news of the judgment.
“To hear that things are going to get better, and this won’t keep happening to more people, is huge.
“I think this case has lit a fire under the department because another patient I know had her scans and everything done in February, and her doctor told her she will be able to get her radiation at a private hospital sometime in April, so I believe things are already moving.”
The health department was directed to take all steps necessary to provide radiation and oncology services to backlog patients at either a public or private facility, and to file an updated report within three months, giving a detailed progress report and a long-term plan to provide radiation and oncology services to backlog patients.
Should the department fail to comply with this, Cancer Alliance would be entitled to re-enrol the matter with the same papers duly supplemented to the extent necessary to make use of oncology radiology experts, and the department was ordered to pay Cancer Alliance’s costs.
The court heard that Cancer Alliance has been trying to engage with the health department since 2020 to ensure that patients on the backlog list receive radiation and oncology treatment. Their only remedy was to approach the court after the department repeatedly failed to respond.
On Wednesday afternoon a 156-page judgment by the Johannesburg high court laid out the many ways in which the department had not only failed patients, but has also “decided it inappropriate to be held to account by the applicant [Cancer Alliance], who has been acting in the public interest”.
The decision, issued by acting judge Solly van Nieuwenhuizen , declared that the Gauteng health department’s failure — despite having received ring-fenced funds from National Treasury — to devise and implement a plan to serve Gauteng patients on a backlog list had acted unlawfully and in breach of the constitution.
He ordered Cancer Alliance to deliver a copy of the backlog list it compiled to take legal action against the department. She then instructed the health department to update this list within 45 days, ensuring it complies with privacy laws and that the list breaks down the patient load between Charlotte Maxeke Johannesburg Academic Hospital and Steve Biko Academic Hospital — the two public health facilities where radiation and oncology are offered. The department must then take immediate action to provide radiation and oncology services to patients on the updated list.
The judgment came after the Gauteng health department had already been compelled to pay back R250m provided by the provincial Treasury for potentially life-saving treatment for cancer patients — because it did not spend a cent of it.
This startling admission was revealed only in court documents and comes in response to Cancer Alliance’s action, and came as a massive blow to thousands of desperate cancer patients waiting for treatment.
We celebrate with the thousands of cancer patients and their families, whose lives will forever be changed by this groundbreaking judgment
— Section27
The R250m was the first tranche of a special R784m commitment from the Gauteng Treasury to help clear the backlog by outsourcing treatment to the private sector. It was paid out in March 2023 and was forfeited at the end of the financial year on March 31 2024.
The Treasury paid out a second tranche of R261m, which the department has to use or lose by the end of this month.
Cancer Alliance has defined “backlog patients” as cancer sufferers who have been waiting for treatment for between 18 months and three years. There are about 3,000 state patients waiting for treatment at Charlotte Maxeke Johannesburg Academic Hospital and Steve Biko Academic Hospital in Pretoria.
“We celebrate with the thousands of cancer patients and their families, whose lives will forever be changed by this groundbreaking judgment,” Section27 said on Thursday evening in response to the judgment.
Together with Cancer Alliance, they welcomed the judgment declaring the failure of the Gauteng department of health to provide lifesaving radiation oncology services to patients on the backlog list unlawful and unconstitutional.
“This court judgment follows years of attempts by Cancer Alliance and partners to negotiate and engage with the [department] to make urgent plans to ensure the availability of these services,” Section27 said.
They highlighted the court’s displeasure at the conduct of the provincial health department, reflected in Van Nieuwenhuizen's comment that “the provincial health respondents have done nothing meaningful since the money was allocated in March 2023 to actually provide radiation oncology treatment to the cancer patients.
“On the other hand, the health and general wellbeing of the cancer patients has significantly deteriorated. There is a clear, imminent and ongoing irreparable harm that cancer patients who are on the backlog list are suffering.”
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