The national department of health has moved to distance itself from an instruction that state hospitals should turn away foreigners unless they pay in full.
The circular, which the department yesterday blamed on a junior official, will be withdrawn tomorrow after the Sunday Times and provincial health officials in the Western Cape asked questions about it.
According to the directive from the Gauteng health department, issued two weeks ago, foreign nationals would have been forced to pay to use overburdened state hospitals, including for emergency treatment.
Gauteng health department head Mkhululi Lukhele had already written to hospitals telling them to start charging foreigners.
AN EXCEPTION FOR REFUGEES
"All non-South African citizens should be classified as full-paying patients, except refugees with valid documents who will be classified according to a means test," his memo said.
"The non-South African citizens … must pay for all health care including emergency treatment, confinement [maternity] and basic health services. The cost of services rendered must be paid upfront or on discharge."
But yesterday, Precious Matsoso, director-general of the national department of health, told the Sunday Times the circular had been issued by a junior official and was "not approved".
"I didn't issue it. It is unlawful. If it is not issued by me, it can't be implemented by the provinces. It will be withdrawn on Monday," she said.
"This was brought to my attention on Friday. The Western Cape health department approached me and asked how must they implement it because it was not signed by me.
"They wanted clarity and didn't implement it. I called the deputy DG [Anban Pillay] directly and asked why a junior official issued it."
Western Cape health spokesperson Colleen Smart confirmed her department was "in discussions" with the national department on how to implement the circular, and had asked it to communicate its intentions to "relevant organisations and the broader public".
KwaZulu-Natal health spokesperson Ncumisa Mafunda said her department had also received the instructions to implement a new tariff schedule for "non-South Africans".
Pillay said confusion may have been caused by the drafting of new regulations on how hospitals should bill foreigners and locals based on their income.
VIOLATING THE CONSTITUTION
Constitutional law expert Pierre de Vos, from the University of Cape Town, said any attempt to treat locals and foreigners differently would be unconstitutional.
"There is case law in which the Constitutional Court sets out that the rights to health, and not to be discriminated against, applies to everyone in SA," he said.
"If they make this distinction [between South Africans and foreigners] they are discriminating and are probably infringing on the right to health care.
"As it stands, they have just issued a circular that is clearly unconstitutional. If this was to be challenged in court, they [the health department] will probably lose."
Another expert in constitutional law, Phephelaphi Dube, said: "Making foreigners pay for public health care will limit the ability of particularly the most vulnerable foreigners to access health care, which in turn will negatively affect other rights such as life and dignity."
Ngqabutho Mabhena, a representative of the African Diaspora Forum nonprofit organisation, said the group - which campaigns against xenophobia - learnt of the directive on Friday and had already heard of some hospitals charging foreigners.
"Our people have been facing a number of challenges in the health system and there are hospitals that we are told are charging up to R5,000 a patient if they want the services," he said.
There were close to 2-million Zimbabweans alone in SA.
"Not all of them are working and they depend on public health. We also have other people from Mozambique and Lesotho who are here in big numbers. This decision can affect a large number of people," Mabhena said.
COMMON PRACTICE
Sharon Ekambaram, head of Lawyers for Human Rights' refugee and migrant programme, said being denied access to health care was a "common experience for foreign nationals".
Francois Venter, deputy executive director of the Wits Reproductive Health Institute, described the circular as "health xenophobia" and an attack on the poor.
Health minister Aaron Motsoaledi told a National Education, Health & Allied Workers Union conference in November that foreigners were placing a strain on public hospitals.
"The weight that foreign nationals are bringing to the country has got nothing to do with xenophobia … it's a reality. Our hospitals are full," he said.
"When [foreign nationals are admitted in large numbers] they cause overcrowding, infection control starts failing."..