LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

96 Chapter 3
to withdraw from its responsibilities by allocating only minimal
resources for the purposes of realising socio-economic rights. 197
In the Soobramoney case, the Court did not question whether
there had been any attempts on the part of the provincial authorities
to solicit more funding to enhance the health budget. Instead, the
Court hastily accepts that the ‘Department of Health in KwaZulu-
Natal does not have sufficient funds to cover the cost of the services
which are being provided to the public’. 198 In its opinion, to provide
dialysis treatment to all those in need would require a dramatic
increase of the health budget ‘to the prejudice of other needs which
the state has to meet’. 199 On this basis, the Court uses section 27(2)
to justify the exclusion of the applicant from dialysis treatment. What
the Court fails to do is to require the provincial authorities to prove
that they are not only aware of their budgetary constraints, but that
steps were being taken to alleviate them. It therefore is not surprising
that approximately eight years after the judgment the state has not
done much to boost the resources needed to take care of kidney
patients at public hospitals. In August 2005, a newspaper report
brought to light the acute nature of the problem of scarcity of dialysis
machines at public hospitals. It reported that every week, public
hospitals send away dozens of patients with kidney failure to die. One
public hospital, Baragwanath, had about 150 people on dialysis, while
some 5 000 patients required it. 200
Requiring the state to demonstrate the steps it has undertaken to
provide more resources would not amount to interfering in resource
allocation matters. Instead, it would amount to imposing a burden on
the state to demonstrate that it is doing whatever is reasonable to
improve its resources directed at a specific programme. This is in
addition to justifying the manner in which the resources already
allocated to the programme are being used. As mentioned above, the
concept of acting within the available resources imposes an obligation
to take reasonable steps to solicit for more resources where the
existing ones are inadequate and using the available resources
efficiently. In light of this, it would not be overstepping the
boundaries of the doctrine of separation of powers to adopt this
approach. All that this approach requires is that an evidential burden
be imposed on the state to justify the allocation of resources to a
programme or policy.
Furthermore, it is only fair that the burden of proof in relation to
resource allocation and use be placed on the state instead of requiring
197 See Pieterse (n 7 above) 91.
198 Para 24.
199
Para 28.
200 C Keeton ‘Kidney patients are sent home to die’ Sunday Times 28 August 2005 13.