Press statement: Refugee dies pending outcome of urgent court application

Lawyers for Human Rights has been forced to remove an urgent medical matter from the urgent roll in the North Gauteng High Court after Ethiopian refugee Badesa Fokora passed away before the matter could be heard.

The 27-year-old was taken to Helen Joseph Hospital in Johannesburg after he fell gravely ill a month ago where he was diagnosed with double kidney failure. The hospital confirmed that his condition was life threatening but explained that due to the National Health Act, they could not help him. He was told that the chronic renal treatment programme involved dialysis and an organ transplant but that, as a non-South African citizen, he did not qualify for placement.

Even when his family offered to contribute to the cost of the procedure, the hospital said they were not allowed to do it because the programme was not available to foreign nationals.

According to the National Health Act only citizens and permanent residents can be placed on the programme. However, the Refugee Act clearly states that refugees be treated like citizens on medical issues.

LHR was approached for help after he was refused placement on the programme.

LHR had planned to challenge this decision and compel the Minister of Health to exercise discretion to have him placed on the programme – something that is well within his powers to do. The case would have also dealt with the exclusion of refugees from medical treatment in a second part of the application. 

“LHR is disappointed that a young man has died under preventable circumstances.  The National Health Act is clear that the Minister of Health has a discretion to order chronic renal treatment to a foreign national. The manner in which the Department has treated Mr Fokora is a gross and unjustifiable violation of his rights to health care, dignity and ultimately life,” said LHR’s Patricia Erasmus.

This exclusion is unconstitutional because it does not distinguish between refugees and other non-nationals. Refugees flee persecution in their home countries and for that reason cannot return because they would be in danger of further harm. A refugee also cannot return to their country of origin for medical treatment because doing so would cause them to lose their refugee status in South Africa.  It is for these reasons that South Africa’s Refugees Act provides that recognised refugees have the same right to basic medical services as a citizen.