In a landmark ruling, the Gauteng High Court (Johannesburg) has ordered the provincial Department of Health to immediately provide treatment to patients on a long-standing backlog list of cancer patients awaiting radiation oncology services in Gauteng, some of whom have tragically died while waiting.

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In the March 2025 order, Acting Judge Van Nieuwenhuizen declared that the Department of Health’s failure to develop and implement a plan to address the oncology backlog was unlawful and unconstitutional. The court delivered an order in the form of a structural interdict, compelling the department to update the backlog list of cancer patients awaiting radiation oncology treatment, take all necessary steps to provide treatment to patients on the backlog list and file progress reports on the measures taken to resolve the crisis.

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The department appealed this order and leave to appeal was granted on 07 May 2025, meaning that by operation of section 18 of the Superior Courts Act 10 of 2013, the operation and execution of the March 2025 order would be suspended pending the outcome of the appeal.

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Advocacy groups Cancer Alliance and SECTION27, launched an urgent application seeking relief that the March 2025 order be made immediately enforceable and not suspended pending the appeal outcome. The applicants argued that delay in treatment is not just a bureaucratic failure, but a matter of life and death. Their legal challenge emphasised the irreversible harm faced by patients, due to the department’s inaction.

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In opposing the immediate execution of a court order pending appeal, the department argued that such enforcement, especially when the appeal may ultimately overturn the original decision, has the potential to cause significant and irreparable harm to the party that is eventually successful. This alleged irreparable harm stemmed from the possibility that significant and scarce public resources and time will be committed to comply with the orders.

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Judge Dippenaar, presiding over the urgent application, acknowledged the gravity of the situation. She stated that the backlog had denied patients access to radiation therapy within the critical window for effectiveness, resulting in “irreversible and permanent harm”.  The court noted that the consequences extend beyond individual suffering to a broader public health and societal crisis. It also noted that irreparable harm had already occurred as patients had died while waiting for treatment, and others had seen their cancer metastasise, rendering such patient’s ineligible for oncology radiation treatment.

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The court found that the department’s contentions of irreparable harm lacked cogency, considering that the department’s constitutional duties inherently include taking necessary steps to provide radiation oncology services to patients in need, including the patients on the backlog list and performing ancillary administrative tasks. The court held that time and effort expended on performing such administrative tasks does not cause irreparable harm to the department and that these duties remain, irrespective of the outcome of the appeal.

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The court ordered that the operation of the March 2025 order would not be suspended pending the outcome of the appeal, reaffirming that the rights to Life, Dignity, and Access to Healthcare cannot be simply suspended due to procedural delays and legal technicalities.

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As South Africa continues to grapple with systemic healthcare challenges, this ruling is a stark reminder that legal technicalities cannot blanketly trump justice and that when lives are at stake, the state must act with urgency, transparency, and accountability.