We Have Three Spheres of Government, Which Is Responsible for Providing Primary Healthcare Services?

The provision of primary healthcare services in South Africa is a complex interplay between national, provincial, and local spheres of government, rooted in the constitutional right to health. A recent court battle concerning blocked access to clinics in Johannesburg has brought into sharp focus the often-blurred lines of responsibility. While the Constitution mandates access to healthcare for everyone and the National Health Act 61 of 2003 aims for a unified system, the practical implementation involves distinct, yet interdependent, roles for each governmental sphere. This article unpacks these responsibilities, examining the legislative framework and key judicial pronouncements to clarify which sphere is accountable for various aspects of primary healthcare delivery and the challenges arising from these divisions.

A recent court battle over blocked access to clinics in Johannesburg has starkly illuminated the intricate and often contentious division of responsibility for ensuring access to healthcare services among South Africa's three spheres of government: national, provincial, and local. The incident, involving members of Operation Dudula preventing foreign nationals from entering the Yeoville Clinic, underscored a fundamental question: when access to essential healthcare is disrupted, who is ultimately accountable? This query extends beyond isolated incidents, touching upon the core governance of public healthcare across the nation.

Section 27 of the Constitution of the Republic of South Africa, 1996, unequivocally guarantees everyone the right to have access to healthcare services. However, the practical realisation of this right is mediated through a multi-layered governmental structure, where functions are allocated and shared. This article aims to clarify the specific roles and responsibilities of the national, provincial, and local governments in providing primary healthcare services, examining the constitutional and legislative framework, relevant case law, and the inherent challenges in achieving seamless service delivery.

The foundation of healthcare provision in South Africa is enshrined in the Constitution of the Republic of South Africa, 1996. Section 27(1)(a) guarantees that "everyone has the right to have access to health care services, including reproductive health care." This right is further qualified by Section 27(2), which obliges the state to "take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights." Crucially, Section 27(3) provides an immediately realisable right, stating that "no one may be refused emergency medical treatment." These provisions establish a robust constitutional mandate for the state to ensure healthcare access.

Giving effect to these constitutional imperatives, the National Health Act 61 of 2003 (NHA) provides a comprehensive framework for a structured, uniform national health system. The NHA explicitly takes into account the obligations imposed by the Constitution on national, provincial, and local governments regarding health services. The Act aims to unite the various elements of the national health system in a common goal to actively promote and improve health in South Africa, establishing a system of cooperative governance and management of health services within national guidelines, norms, and standards. This cooperative governance is central, as Section 40(1) of the Constitution stipulates that government is constituted as national, provincial, and local spheres, which are "distinctive, interdependent and interrelated." Health services are listed in Schedule 4 Part A of the Constitution as a concurrent national and provincial legislative competence, meaning both spheres exercise authority over it, albeit at different operational levels.

The division of responsibilities for primary healthcare services among the three spheres of government, while guided by the Constitution and the National Health Act, presents a nuanced picture. The national government, through the National Department of Health, is primarily responsible for developing policy, setting national norms and standards, and coordinating the overall health system. This includes strategic planning and ensuring the progressive realisation of the constitutional right to access healthcare services.

Provincial governments bear the primary responsibility for the implementation of health services. This entails managing hospitals, clinics, and health personnel within their respective provinces. Provincial health departments are directly responsible for the provision of primary healthcare services, including school health, maternal and child health, and the treatment of long-term conditions such as HIV and diabetes. While provinces are autonomous in their executive functions, they operate within the national policy framework and are expected to adhere to national guidelines.

Local government, specifically metropolitan and district municipalities, plays a distinct but crucial role through the provision of "municipal health services." These services, listed in Schedule 4B of the Constitution, are defined in the National Health Act and primarily encompass environmental health services. This includes water quality monitoring, food control, waste management, health surveillance of premises, surveillance of communicable diseases (excluding immunisation), vector control, environmental pollution control, disposal of the dead, and chemical safety. These functions are critical for preventative health and creating a healthy living environment, thereby contributing significantly to primary healthcare outcomes.

In some instances, provinces may delegate primary healthcare functions to capable metropolitan municipalities through Section 156(4) constitutional arrangements, often formalised through service level agreements (SLAs). For example, the Gauteng Department of Health has such an arrangement with the City of Johannesburg for the provision of primary healthcare services. This delegation aims to adapt healthcare delivery to local needs within the district health system established by the NHA.

Case law has been instrumental in defining the state's obligations. The landmark case of *Minister of Health v Treatment Action Campaign (TAC)* (2002) 5 SA 721 (CC) affirmed the state's positive obligation to take reasonable measures to progressively realise the right to health, even ordering the government to make anti-retroviral drugs available to prevent mother-to-child HIV transmission. This case highlighted the judiciary's role in enforcing socio-economic rights and the accountability of national and provincial governments in implementing health programmes. Earlier, *Soobramoney v Minister of Health, KwaZulu-Natal* (CCT32/97) [1997] ZACC 17, while acknowledging resource constraints, clarified the meaning of "emergency medical treatment" under Section 27(3). The recent Johannesburg clinic access dispute further underscores the principle of cooperative governance, with the court confirming that national and provincial authorities have a legal interest in matters affecting municipal-run clinics, including external disruptions to access. These cases collectively demonstrate that while responsibilities are distributed, the overarching constitutional right to health demands a coordinated and accountable response from all spheres of government.

The provision of primary healthcare services in South Africa is a shared constitutional mandate, requiring a delicate balance of distinctive yet interdependent roles across national, provincial, and local government spheres. While the National Department of Health sets policy and standards, provincial departments are the primary implementers of clinical services, and municipalities are crucial for foundational environmental health services. The ability of provinces to delegate certain primary healthcare functions to metros via service level agreements further complicates the landscape, necessitating clear communication and robust oversight.

For legal practitioners, understanding these divisions is paramount when advising clients on healthcare access issues or pursuing remedies for service delivery failures. Identifying the correct sphere of government responsible for a particular aspect of primary healthcare is the first step in establishing accountability. The principle of cooperative governance, as reinforced by recent judicial pronouncements, means that all spheres may be implicated in ensuring the constitutional right to health. Practitioners should therefore consider the interconnectedness of these roles and the potential for joint liability or the need for coordinated interventions when addressing challenges in primary healthcare provision. The ongoing evolution of the National Health Insurance (NHI) framework will likely introduce further shifts in these responsibilities, demanding continuous vigilance from legal professionals to navigate the changing landscape of healthcare governance in South Africa.