Cancer Alliance v Member of Executive Council for Health Gauteng Province and Others (2024/071038) [2025] ZAGPJHC 357 (27 March 2025)

RREPUBLIC OF SOUTH AFRICA


IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO : 2024/071038
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
DATE: 27/3/2025
SIGNATURE:

In the matter between:

CANCER ALLIANCE APPLICANT

and

MEMBER OF EXECUTIVE COUNCIL FOR
HEALTH GAUTENG PROVINCE FIRST RESPONDENT

HEAD OF DEPARTMENT: HEALTH GAUTENG
PROVINCE SECOND RESPONDENT

MEMBER OF EXECUTIVE COUNCIL FOR
GAUTENG TREASURY: GAUTENG PROVINCE THIRD RESPONDENT

VARIAN MEDICAL SYSTEMS AFRICA (PTY)

LIMITED FOURTH RESPONDENT

MINISTER OF HEALTH FIFTH RESPONDENT

DIRECTOR GENERAL: DEPARTMENT
OF HEALTH SIXTH RESPONDENT

CHIEF EXECUTIVE OFFICER: CHARLOTTE
MAXEKE JOHANNESBURG
ACADEMIC HOSPITAL SEVENTH RESPONDENT

CHIEF EXECUTIVE OFFICER: STEVE BIKO
ACADEMIC HOSPITAL EIGHTH RESPONDENT

MINISTER OF FINANCE NINTH RESPONDENT

NATIONAL TREASURY TENTH RESPONDENT

SIEMENS HEALTHCARE (PTY) LTD ELEVENTH RESPONDENT

___________________________________________________________________
JUDGMENT
___________________________________________________________________

S. VAN NIEUWENHUIZEN , AJ

Introduction

[1] This matter came before me by way of special motion after the Applicant (“the
Alliance”) launched it as an urgent application on 2 7 June 2024 , seeking, in Part A of
the notice of motion under the rubric of urgency, the following relief:

“PART A – THE PROVISION OF RADIATION ONCOLOGY SERVICES AT
CHARLOTTE MAXEKE FOR BACKLOG LIST PATIENTS

1. That non -compliance with the form, service and time periods provided
for in the Uniform Rules of Court be condoned and directing that the matter be
heard as one of urgency in terms of rule 6(12).

2. The First, Second, Sixth, Seventh and Eighth Respondents’ failure to
devise and implement a plan to provide radiation oncology services at
Charlotte Maxeke Johannesburg Academic Hospital and Steve Biko
Academic Hospital in Gauteng to cancer patients on the backlog list is
declared to be unlawful and unconstitutional.

3. The First, Second, Sixth, Seventh and Eighth Respondents are directed
to update the back log list of cancer patients who are awaitin g radiation
oncology services in Gauteng within 45 days from the date of this order.

4. The First, Second, Sixth, Seventh and Eighth Respondents are directed
to take all steps necessary to provide radiation oncology services to backlog
list patients who are awaiting treatment at Charlotte Maxeke Johannesburg
Academic Hospital and Steve Biko Academic Hospital i n Gauteng at a public
and/or private fa cility.

5. The Respondents are interdicted and restrained from paying, dis bursing
or otherwise dealing with R250 million, which has been allocated specifically
to address the radiation oncology backlog in Gauteng province, pending the
outcome and finalisation of Part B of the application.

6. The First, Second, Sixth, Seventh and Eighth Respondents are directed
to file an updated report within three months from the date of this order
detailing the following:

6.1 A progress report on the steps taken to provide radiation oncology
services to cancer patients who are on the backlog list in Gauteng.

6.2 A progress report on the First Respondent’s long -term plan to
provide radiation oncology services to cancer patients at Charlotte
Maxeke Johannesburg Academic Hospital and Steve Biko Academic
Hospital in Gauteng.

7. In the event that First Respondent fails to comply with the orders in
paragraphs 2 to 6 above, the Applicant is entitled to re -enrol the matter on the
same papers, duly supplemented to the extent necessary.

8. The Applicant is granted leave to supplement the application in relati on
to the relief sought in Part B of the application.

9. Costs of the application, only in the event of opposition by the
Respondents, including the costs of two counsel.

10. Further and/or alternative relief.”

[2] A founding affidavit of Salomé Jeane tte Meyer and the annexures thereto
were filed in support of Part A of the application.

[3] The Respondents , in terms of Part A of the notice of motion, were given an
opportunity until 3 July 2024, at 10h00, to appoint an address referred to in Rule
6(5)(b) at which the Respondents would accept notice and service of all documents
in the proceedings and were fur ther given until 16h00 on 12 July 2024 to file their
answering affidavits, whereupon the Alliance would file its replying affidavit, if any, on
or before 16 July 2024. The urgent hearing date was set for 23 July 2024.

[4] The Alliance is represented by section 27 a non -governmental organisation,
which instructed counsel on its behalf. From the detail provided after the
respondents caused a rule 7 notice to be served on it it became clear that it is
actually the Cancer Alliance NPC (Reg no:2021/844313/08) who is the applicant
although this was not stated in the founding affidavit, The application was issued and
served by email on the First, Second and Seventh respondent on 27 June 2024 ,
and served on 28 June 2024 on the 4th to 6th and 8th to 10th respondents respectively,
according to a service affidavit deposed to by Ms Laher. This affidavit also states
that in the attempt to serve on the 4th respondent it appeared that it no longer exists
as a legal entity and had been taken over by the 11th respondent. The 11th
respondent has since consented to be joined to the proceedings and was joined in
terms of an order made by Twala J on 23 July 2024. It does not oppose the relief
sought .

[5] It is necessary to, at least, make reference, in brief, to Part B of the relief
sought in order to understand the interplay between Part A and Part B of the notice
of motion.

[6] Part B of the notice of motion c ontemplates that application would be made on
behalf of the Allian ce for an expedited hearing date to be arranged with the
Registrar, for an order in the following terms:

“1. The Second Respondent’s decision of 30 April 2024 to allocate
R250 million, out of the allocated R784 million, for the outsourcing of radiation
oncology services (‘ Second Respondent’s decision ’) is irrational, arbitrary,
unlawful and of no force or effect .

2. The First, Second, and Fifth Respondents’ decision on 30 April 2024 to
awar d the Radiation Oncology Services tender or, alternatively Part C of the
Radiation Oncology Services tender to Varian Medical Systems.

3. The Second Respondent’s decision is reviewed and set aside.

4. Costs of the application , only in the event of opposition by the
Respondents including the costs of two counsel.

5. Further and/or alternative relief.”

[7] The same Founding A ffidavit of Salomé Jeanette Meyer and the annexures
thereto are utilised in support of Part B.

[8] In addition, the second respondent was called upon to produce the record of
proceedings and despatch same within 10 (ten) days of receipt of this application to
the Registrar of the Honourable Court and give such reasons as are required by law
or they desi re to make and inform the applicant that they have done so. Why
compliance with the rule has not yet been sought is a mystery to me .

[9] I do not deal with the rest of the notice of motion given that same to a large
extent follow the traditional format of Rule 53 of the Uniform Rules of Court and the
fact that I am only concerned with the relief in Part ”A”

[10] I will refer to the applicant as “the Alliance“, and 5th and 6th respondents
interchangeably by name or as the “n ational government respondents” . The
remaining respondents (excluding the 4th,9th,10th and 11th ) will be referred to as the
“provincial health respondents ” or by their names interchangeably and at times as
the “GDoH ”. The 11th Respondent will als o be referred to as cited or simply as
“Siemens ” interchangeably.

The Alliance’s prima facie case

[11] The stated purpose of the present application is to obtain the court’s
intervention in an alleged ongoing and life -threatening radi ation oncology crisis in
Gauteng. This centres around a “ significant backlog of cancer patients that have
built up largely at the Charlotte Maxeke Johannesburg Academic Hospital (“CMJAH”)
with the result that approximately 3000 cancer patients have not re ceived radiation
oncology treatment in the past three years ”. The application is further directed at the
GDoH ’s failure to provide such treatment where funding has specifically been
allocated for this purpose.

[12] This brings in to play the right to health care services as guaranteed in section
27 of the Constitution but focuses on cancer patients and the right to receive
radiation oncology services. Section 27 of the Constitution reads as follows:

“27 Health care , food, water and social security

(1) Everyone has the right to have access to -

(a) health care services, including reproductive health care;
…….
(2) The state must take reasonable legislative and other measures, within its
available resources, to achi eve the progressive realisation of each of these
rights.

(3) No one may be refused emergency medical treatment.”

[13] The backlog list referred to is the list as prepared by the GDoH in May 2023.
This fact is important given that this forms part of the relief sought. It was updated
from a backlog list generated by the Alliance in March 2022 and at that time reflected
a number of 3026 patients and 2400 patients in May 2023. It is also said that many
patients have been on this list for several years.

[14] The Alliance emphasises the fact that this case is not about whether the
measures taken by the state are reasonable within available resources or about the
progressive realisation of the right to he alth care services. The case rests on the
premise that the means to provide services to cancer patients on the backlog list
exist and have been allocated for that purpose. Whilst the aforesaid notion goes a
long way towards eliminating time delays precedin g the delivery of such services it
does not mean that such services can be provided overnight and without
circumspection. The time delay after such means have become available will of
necessity be a factor of the type of procurement process followed there after with its
own inherent shortcomings and unknown outcomes all of which in itself will play a
role in the delivery of such services.

[15] The Alliance makes the serious allegation against the GDoH that as time
passes the backlog list continuous to grow and cancer patients on this list face the
real possibility that they may not survive without the radiation oncology treatment. It
is said that their pain and suffering goes unnoticed because they are at home trying
their best to manage their illness and t hat this situation cannot continue.

[16] The aforesaid notions are presented in the Alliance’s founding affidavit as fact
and rests upon the deponent’s Ms Meyer’s knowledge which she states to be as
follows:

“I have been involved in cancer advocacy for the past 25 years. I am well
versed in the importance of timeous cancer treatments and the various cancer
treatment modalities. In my capacity as a cancer advocate, I have provided
government with guidance on the realities of cancer patients living in South
Africa. In this regard I have provided input to the National Department of
Health, at their request, in the drafting of the clinical guidelines for breast
cancer control and management.”

[17] Although her opin ion is not backed up by any person purporting to have
expertise in all the different kinds of cancer and cancer treatment she seems to have
some knowledge in the field. At the same time I cannot just accept that radiation
treatment is a panacea and integr al treatment indicated for all kinds of cancers
following chemotherapy or surgery. Having had regard to a conspectus of all the
facts in this application I am prepared to accept that radiation therapy is often
deployed as a follow -up treatment and will ac cept that at least in respect of certain
cancers it may well be vital to the success of a specific treatment protocol and to that
extent life -saving.

[18] I should mention that although the provincial respondents have defended their
position fiercely they have not taken the stance that radiation therapy is totally
unnecessary or not life -saving. As will transpire later, included in their extensive
defence is the notion that shorter radiation therapy treatments are indicated than
used to be the case. I sho uld mention that they also do not avail themselves of any
expert on the topic.

[19] Ms Meyer also provides the court with a detailed background to the
aforementioned crisis with specific reference to the CMJAH.

19.1 The Alliance has been monitoring the c onsequences of the ongoing
crisis in radiation oncology services for the last 6 years in Gauteng generally
and more specifically at the CMJAH;

19.2 The Alliance has in the past 3 years engaged in several meetings with
the GDoH and the offices of the Gauteng Treasury and the National
Department of Health (”National DOH”) for purposes of addressing the crisis;

19.3 The Alliance consists of a group of 3 0 cancer control non -profit
organisations. It is acting in this matter in its own name and interest to ensure
that patients diagnosed with cancer receive much needed radiation oncology
services;

19.4 It brings the application in the interests of the group of cancer patients in
Gauteng who are not receiving critical radiation oncology services;

19.5 It also brings this application in the broader public interest.

[20] The deponent explains that cancer treatment is time -sensitive and that
radiation oncology [treatment] is a key component in cancer treatment. She states
that cancer patients must receive radiation oncology treatment within a minimum of 3
months from their diagnosis or within a minimum of 3 months or three months after
surgery to remove a tumour. She further states that delays in providing radiation
oncology treatment to cancer patients often increase the chances of post -surgery
cancer recurrence.

[21] She further asserts that there is a national public health care crisis because
cancer patients in Gauteng have not been timeously receiving radiation oncology
treatment and specifically so at CMJAH. During January 2022 the television
programme Carte Blanche ai red a programme detailing the challenges faced by
patients awaiting treatment at CMJA H. A copy of a link to the programme is in the
founding affidavit.

[22] The programme refers to delays at CMJAH as far back as 2010. It also
demonstrates that the consta nt power failures occasioned by Eskom leading to the
equipment having to be re -calibrated once the electricity is restored and also
indicates that a typical treatment session last 15 minutes.

[23] In an interview with Dr Duvern Ramiah (“”Dr Ramiah) who i s the head of
Radiation Oncology at CMJAH he confirms that the backlog list has been increasing
since 2018 ultimately leading to the figure of 3026 patients on this backlog list as at
March 2022.

[24] Two mai n issues have driven the increase in the backl og list i.e. a lack of
sufficient radiation equipment (Linac and brachytherapy machines) with concomitant
barriers at GDoH from procuring the equipment.

[25] The following matters are important with regard to the lack of radiation
equipment specifically a t CMJAH i.e.:

25.1 A shortage in machinery due to the decommissioning of 2 Cobalt
machines and maintenance issues with the remaining machines;

25.2 The tender process to replace the 2 decommissioned machines were
commenced in 2019 but abandoned in 2021;

25.3 The tender process was started afresh in January 2022. The bid
specification committee compiled specifications for the procurement of these
mach ines, a process that took 9 months. Ms Meyer is unable to inform the
court where th is bid process was as at the time of filing the founding affidavit
but can confirm that no procurement has taken place as yet;

25.4 In the meantime the CMJAH had to manage an influx of approximately
2000 new patients per year as well as the 3000 patients on the backlog with
only 4 machines;

25.5 Even if the machinery were to be procured, it would take a further nine
months for same to be installed and operating. She states that due to the
expensive nature of these machines manufacturers often only commence
manufacturing (a delay of another 6 months) once they received the order for
the machines which in the case of the state would only be after the award of a
tender. Therea fter the machines must still be installed and inspected by the
Atomic Energy Agency to ensure compliance with standards applicable to the
use of equipment emitting radiation;

25.6 Where there are no compatible bunkers for the procured machines,
bunkers mu st be built, inspected and licensed. Building bunkers in itself could
take months . In this regard the deponent refers to the building of bunkers at
the Dr George Mukhari Academic Hospital (“GMAH”) and the Chris Hani
Baragwanath Academic Hospital (“CHBAH”) . Apparently processes there
have taken years and have stalled at the approval stage for the building plans.
The radiation oncology machines for these hospitals have been in storage for
over 3 years ;

25.7 In addition there are insufficient healthcare professionals for radiation
oncology at CMJAH. These challenges relate to the appointment and
remuneration of additional suitably qualified professionals. She states that as
at September 2022 the radiat ion oncology unit was operating with 6
radiotherapists , yet to function at full capacity , it would require approximately
30 radiotherapists;

25.8 In 2022 CMJAH advertised only 3 vacancies none of which was filled.
According to Ms Meyer this is due to unco mpetitive remuneration and
promotion structure. She states that GDoH has lost radiotherapists to public
hospitals in other provinces who have sought and obtained an exemption from
the Occupation Specific Dispensation which determines the qualifications
necessary for promotion and therefore salary;

25.9 She adds that the Alliance and Section 27 the NGO acting as the
instructing party for the Alliance are in discussions with the Department of
Public Services and Administration (“DPSA”);

25.10 Even if the GD oH would be able to procure the equipment, installed,
inspected and licensed within a reasonable time there are still insufficient
oncology radiotherapists available employed by the GDoH to meet the
demand;

25.11 She also asserts that to the extent that t he award of the radiation
oncology planning category is designed to address the shortage of oncology
radiotherapists in the employ of the GDoH at CMJAH this will not provide any
reprieve to the patients on the backlog list without the necessary equipment t o
deliver the treatment which machinery will take months to bring to operation.
In the meantime, any person (s) who received the radiation oncology planning
services through the contracted services will be forced to return to the public
sector where they wi ll again compete for the available machines with those on
the backlog list and waiting list.

25.12 Ms Meyer also asserts that as evidenced by the accounts detailed in
the attached supporting affidavits (Annexures SJM20 to SJM2 2), some of the
patients on the backlog list have, at some stage or another, undergone
radiation oncology contouring and the subsequent radiation oncology planning
in preparation for the treatment and notwithstanding that still had to wait
months for treatment - while suffering recur rences in the meanwhile - due to a
lack ·of available machinery . I will in due course refer to the affidavits filed by
these 3 patients who I will for the sake of their privacy refer to these persons
as Ms “V”, Ms ”W” and Ms “X” . There is also evidence from a 4th patient who I
will refer to as Ms “Y” who may well not be on the backlog list.

25.13 Ms Meyer concludes that it is clear to her that the backlog is created by
a dual issue of a significant shortage of radiation oncology machinery and
radiotherapists. Any solution other than integrated radiation oncology services
will in her opinion fail to address the crises;

25.14 She further exp lains that the implementation of Covid -19 measures in
2020 posed great challenges to patients receiving treatment in the public
sector. Most public sector hospitals were experiencing problems with
providing care for cancer patients in all three treatment modalities, i.e.
surgery, chemotherapy and radiation therapy;

25.15 During 2021 a fire broke out at CMJAH further exacerbating the
situation leading to the temporary closing down of the hospital and cancer
patients having been referred to SBAH for radiati on treatment;

25.16 The radiation oncology unit at CMJAH reopened around June 2021.
However not all the patients who had been redirected to SBAH were
immediately recalled to CMJAH when the unit reopened;

25.17 In the result she concludes that there are m ore than 3000 patients in
desperate need of lifesaving treatment. She concedes that only the GDoH
knows the real numbers and calls on them to be forthright and disclose the
true numbers to the court;

25.18 She adds that the patients on the backlog list ar e all diagnosed with
one of the four major cancers i.e. prostate cancer, cervical cancer, breast
cancer and colorectal cancer. In her view they are undeniably the patients
who are most in need of radiation treatment.

[26] Under the rubric “ The background to the allocation of money for the
radiation and oncology backlog ” she explains the extensive advocacy work with
the GDoH done by the Alliance and Section 27 to try and find a solution and
treatment of for cancer patients on the backlog list.

[27] According to Ms Meyer this led to the establishment of the Task Team during
February 2022 consisting of the Alliance, The Treatment Action Campaign, Heads of
Radiation Oncology Departments at SBAH and CMJAH, clinicians, Gauteng Acting
Head of Health Servic es, Dr Kgongwane, later succeeded by Dr Mankupane as
Head of Hospi tal services at the GDoH, The Alliance was represented by Ms Greeff ,
Ms Meyer as well as Ms Mamatela. Dr Kgongwane, and later Dr Mankupane chaired
the Task Team.

[28] Ms Meyer states that t he terms of reference of the Task Ream was never
published but based on their letters of appointment it was generally accepted that the
Task Team was required to:

28.1 advise the Head of the Department on the treatment of cancer patients
in Gauteng;

28.2 establish a sustainable communication and navigation platform for
cancer patients across Gauteng;

28.3 assist with mechanisms in which to address the cancer treatment
backlog list;

28.4 oversee the occupation specific dispensation (“OSD”) concerns of
radiation oncology personnel;

28.5 advise on the procurement processes of cancer equipment.

[29] A copy of Ms Meyer’s appointment letter is annexed marked “ SJM1 ”. This
letter evidences the aforesaid functions and continues with the notion that the team
will have to develop its own terms of reference which must include the listed
responsibilities listed above.

[30] The letter states that the Task Team will form part of the department’s
governance structures aimed at enhancing the patient’s experience of care.

[31] Ms Meyer’s appointment was effective from date of acceptance of the
appointment till 31 March 2023.

[32] The appointment letter is signed by Dr S. Zungu in his capacity as Head of
Departmen t on 23 March 2022 and accepted by Ms Meyer on 28 March 2022.

[33] Around March 2022 the Alliance commissioned at it s own expense and with
the permission of CMJAH the services of an independent consultant to compile an
updated backlog list. This process entailed perusing the files at CMJAH, contacting
the patients and establishing whether they needed to be restaged, had left the
province or had died and was completed in a month and concluded that the backlog
list at the time consisted of approximately 3000 cancer patients.

[34] It was also through its participation in the Task Team that the Alliance came to
learn that o utsourcing had been used in other provinces as a short -term life -saving
measure for the provision of various health services. I should point out that Covid -19
treatment is referred to as such an example and the minutes of a meeting of the
Task Team dated 1 0 October 2022 (“ SJM2 ”) paragraph 4 refers to oncology services
being outsourced (with reference to the Northern Cape where Icon is a service
provider) but GDoH was of the view that there was no money for such an exercise. I
should add that the aforesaid information emanated from the National Department
of Health . It is nevertheless instructive as to what could be achieved by a
bureaucracy once it sets it mind on deliver ing services.

[35] The minutes of this meeting was shared with Dr Nolutshungu on 12 O ctober
2022 and in a meeting held on 26 October 2022 he agreed that the GdoH is
amenable to outsourcing radiation oncology services as an interim solution, if funds
are ring -fenced for this purpose. It was also recorded that the National Department of
Health agreed to make a presentation to Gauteng Health about the outsourcing
model. It was agreed that Section 27 would invite representatives from Gauteng
Treasury to attend the National Department of Health's presentation. A copy of the
minutes of the meetin g is attached as Annexure "SJM3" and a copy of Ms Mapipa's
email is attached as Annexure "SJM4". The latter reflects the need to involve
Gauteng Treasury.

[36] Annexure “ SJM3 ” reflects a request by Ms Mapipa acting on behalf of section
27 to make use of Treasury Regulation 16 A6.4 to speed up the process.

[37] Ms Meyer’s affidavit refers extensively to the Covid -19 model for outsourcing
and Mr Manning from the National Department of Health ’s suggest ions that a similar
model coul d be used for the outsourcing of radiation oncology therapy. I do not deal
with the minutiae hereof but emphasise that this took place at a meeting attended by
Dr Nolutshungu, representatives of the Gauteng Treasury, National Treasury, Dr
Ramiah, Section 2 7 and the Alliance. At this meeting Ms Meyer indicated that the
GDoH is not updating the backlog list prepared by the Alliance due to constraints
and also communicated the Alliance’s concern that the GDoH is not communicating
with cancer patients on the ba cklog list as to their treatment plan going forward.

[38] A copy of the minutes of this meeting is annexed as “ SJM5 ” dated 15
November 2022. These minutes reflect tha t GDoH and Gauteng Treasury would
meet before 2 December 2022 to determine and frame the outsourcing model for
radiation oncology services in the province and specifically to address the waiting list
at CMJAH. Gauteng Treasury undertook to oversee and lead the initial internal
meeting. The head of the department would appoint a lead/champion t o manage the
outsourcing project.

[39] On 7 December 2022 Section 27 and the Alliance met with Dr Nolutsh ungu,
representatives of GDoH and Gauteng Treasury and made submissions to the latter
for the ringfencing of funds to address the radiation oncology c rises in Gauteng.

[40] On 9 March 2023, in his 2023/2024 Gauteng Provincial Budget to the
Gauteng Legislature, the MEC Finance: Gauteng announced that a total budget of R
784 million was being allocated to the GD oH to urgently address the backlog in
surgi cal and radiation oncology services out of a total budget of R5billion allocated to
GDoH. A copy of the MEC for Finance: Gauteng's speech on tabling the 2023/2024
Gauteng Provincial Budget to the Gauteng Provincial Legislature on 9 March 2023 is
attached as Annexure "SJM8".

[41] I could find no reference to outsourcing as a way to alleviate the radiation
oncology services, crises in this speech. It is, however, clear that relief on this front
was intended to take place urgently .

[42] On 31 March 2023 Ms Meyer’s appointment to the Task Team expired.

[43] From the Alliance point of view all that now had to happen is that the backlog
list be addressed a s speedily as possible. It alleges that 2 months later by 22 March
2023 the GDoH was planning a tender process for procuring radiation oncology
services for cancer patients on the backlog list. The Alliance deemed that to be in
contradiction to the numero us preceding meetings to the effect that it would follow
the route of an expedited outsourcing process. While same was discussed and
actively promoted by National Health I could find nothing in the minutes of these
meetings where GDoH committed itself to an outsourcing process by way of any
form of deviation under the Treasury Regulation referred to as opposed to a tender
process. In the Alliance ’s view a tender process was not the optimal way forward
given that it is a drawn out process. It would appear t hat the Alliance’s view was
fundamentally underpinned by the inherent urgency and hence the notion that a
deviation as opposed to a tender process was regarded as more suitable by it. See
Ms Mapipa’ s reference to deviation above.

[44] According to an email from Mr Vilakazi from GDoH a Teams meeting was
arranged for 2 June 2023 from 14h00 – 16h00 and Ms Mapipa from section 27
confirmed their availability expressing anticipation regarding the plan dev eloped by
GDoH and the timelines for realisation of same including the updating of the
radiation oncology waiting list which includes clinical assessments of the patients as
well as proposed dates for meetings with private service providers. A copy of Ms
Mapipa’s email expressing the foregoing hopes appears as annexure “ SJM9 ” to the
founding affidavit. This email also expresses concern about the GDoH tender and
the hope that these concerns would have been addressed.

[45] It is alleged that at the meeting o f 2 Ju ne 2023 GDoH agreed to:

45.1 A deviation from the normal tender process to expedite the outsourcing
of radiation oncology treatment. The power to obtain this is alleged ly vested in
the Acting Head of Department at Gauteng Health, Mr M alotana. The
application would be supported by mark et research already concluded by a
division within Gauteng Treasury for the benefit of Gauteng Health;

45.2 By Friday, 23 June 2023, conduct a briefing session with potential
service providers, who will be identified through the market research already
conducted by Gauteng Treasury;

45.3 By Friday 7 July 2023, potential service providers would submit
proposals;

45.4 By Friday 21 July 2023, Gauteng Health would appoint a service
provider to provide the outsourced radiation oncology services;

[46] These timelines were expected to result in cancer patients on the list receiving
radiation treatment in early August 2023.

[47] Ms Mapipa confirmed this in an email annexed dated 13 June 20 23 annexed
as “SJM10 ”. A transcript of the discussions at the meeting is annexed marked
“SJM11 ”.

[48] I should make it clear that although Ms Mapipa who acted as chairperson of
this meeting tried her level best according to the transcript “ SJM11 to pin all involved
parties down as suggested in paragraph 4 5 above , I am of the view that upon a
proper readin g of the transcript, it does not support her conclusions fully.

[49] It is clear that several worrying aspects were outstanding such as
specifications, protocols and who the service providers would be. Although section
27 had identified 4 suppliers i.e. Life Hospital Group, Busamed, Icon and Netcare
services it would appear that a similar exercise on the part of Gauteng Treasury was
not fully in place yet and the permission to deviat e from normal procurement
processes still had to be obtained. Dr Selby a lthough ostensibly in support of
outsourcing at critical times in the meeting kep t on falling back on terminology more
consistent with tenders such as the need for a bid allocation committee and bid
evaluation committee being required to approve the service suppliers. In my view the
undertakings supplied in this meeting were at best declarations of intent and to
vague to be binding. It is also clear that the business case for outsourcing by
deviation was not considered strong enough to implement same immediately. It is
clear that outsourcing was nevertheless regarded as an option.

[50] When I pressed the counsel who contextualised the case during the hearing
on the fact that the Alliance ’s case is at least in part constructed on the s o-called
agreements set out in paragraph 62.1 – 62.5 of the founding affidavit she did not
even try to defend the conclusions arrived at in the aforesaid paragraph s and
ultimately informed me that the Alliance ’s case is not constructed or based on the
alleged agreement set out in the aforesaid paragraphs of the founding affidavit.

[51] The GDoH missed the first deadline to advise s ection 27 of the outcome of
the deviation process which gave rise to fears that the knock -on effect would
ultimately result in patients not commence receiving treatment as was planned from
August 2023. This was also one of the reason s for sending the email referred to,
annexure “SJM10” . The GDoH never responded to this email.

[52] Further correspondence followed. On 20 June 2023 Ms Mapipa sent a n email
to Dr Mankupane and Dr Selby (Director of Supply Chain Management at GDoH)
reques ting updates on the deviation and identification of possible private sector
service providers, a copy of which is annexed marked “SJM12 ” . When this went
unanswered a further email was sent by Ms Mapipa dated 30 June 2023 expressing
concern about the lack of response and increasing anxiety experienced by people on
the backlog list. This email, annexed and marked “SJM13 ”, included a request for
another meeting re the aforesaid concerns dated 30 June 2023 which also went
unanswered.

[53] In the meantime and on 9 June 2023 Ms Mapipa published on an online
platform an opinion piece styled "Worrying lack of urgency as Gauteng Health sits on
money earmarked to outsource urgent cancer treatment”' . Same is annexed to the
founding affidavit as an nexure “ SJM14 ”. I do not need to refer thereto except for the
fact that it i.a. dealt with a patient whose cancer had returned for the third time
without receiving radiation oncology treatment post-surgery and was now no longer
responding to che motherapy and expressing the hope that GDoH would fulfil its
undertakings. On 22 June 2023 Dr Mankupane published a right of reply to the
aforesaid opinion piece in which he accepted that there is a need to act with urgency
to address the backlog of surgical and onco logical services. In this article he also
conveyed Gauteng Health's plan to expand oncology services to Chris Hani
Baragwanath Academic Hospital and George Mukhari Academic Hospital. According
to Gauteng Health's records, approximately 2000 patients were benefiting from
oncology services at CMJAH and SBAH.

[54] Dr Mankupane noted that the proposed outsourcing must be done within the
parameters of the Public Finance Management Act and applicable supply chain
management processes . He confirmed that the tender process was already
underway and that Gauteng Health decided to follow an open tende r process with a
shorter advert isement period of 14 days. I should point out that such compliance in
an urgent situation and relief by deviation as a specie of procurement is exactly what
Dr Manning’s presentation was about pertaining to the Covid -19 cris es.

[55] He assured the public that Gauteng Health recognises the urgency to provide
radiation oncology services and gave the assurance that the outsourcing of radiation
oncology services was nearing implementation.

[56] By 20 October 2023 GDoH advertised a tender for the outsourcing of radiation
oncology services with a closing date for bids set for 3 November 2023. It was
described as "APPOINTMENT OF SERVICE PROVIDERS FOR THE
OUTSOURCING OF RADIATION ONCOLOGY SERVICES FOR THE GAUTENG
DEPAR TMENT OF HEALTH AND WELLNES[S] FOR A PERIOD OF (ONE) 1 YEAR
"
[57] The 90 day validity period concluded on 1 February 2024.

57.1 The tender had 3 categories:

57.1.1 Category 1 - A tender for professional oncologist services. This part of
tender sought to procure services from radiation oncologists who can provide
radiotherapy simulation and planning as per the SBAH and CMJAH breast
and prostate treatment guidelines. The tender also required the service
provider to monitor the patients while receiving radi otherapy and discharge
the patient to the State upon completion of the radiotherapy.

57.1.2 Category 2 - A tender for the provision of technical services. In this part
of the tender, it sought service providers who could provide radiotherapy
facilities capable of delivering equivalent radiotherapy treatments to patients
who met the admission criteria in the tender.

57.1.3 Category 3 - A tender for the provision of radiation planning services. In
this part of the tender, it sought a service provider that would provide remote
treatment planning services for radiation oncology. The treatment planning
system would be used to facilitate the e xecution of the scope of work, but no
hardware or software would be transferred or sold . A treatment plan includes:

57.1.3.1 all reasonable discussions and consultations required for
the Radiation Oncologist, Medical Physicist, and therapy staff to creat e
an acceptable plan with which to treat the patient.

57.1.3.2 report s as per appropriate International Commission on
Radiation Units and Measurements (ICRU) guidelines for 2D, 3DCRT
and IMRT where applicable. Parameters including planning target
volume { PTV) dose reporting, organ at risk (OAR) doses must be
adhered to. These must be within acceptable limits as set by guidelines
and the referring state facility.

57.1.3.3 all processing from CT to treatment, which includes CT
Import, fusion, normal tissue contouring, plan review with Radiation
Oncologist in charge of the patient, and plan documentation in the
electronic medical records (EMR).

[58] A standard treatment plan will be delivered to the service provider by the end
of Standard Hours on the 3rd Business Day following the date of the treatment plan
request.

[59] The relevant portions of the Tender are annexed as Annexure “ SJM16 ” whilst
the complete tender could be made available to the court on request. I regarded
same as unnecessary.

[60] The tender clearly shows that the category three planning service was an
ancillary service to "facilitate the execution" of the radiation and oncology treatment
and services contemplated in categories 1 and 2 of the tender. The tender closed on
3 November 2023. Gauteng Health commenced with the evaluation of the tender on
21 November 2023 and concluded the process on 16 January 2024.

[61] On 1 February 2024, Gauteng Health issued a press statement in which it
sought to "dismiss misleading claims on delays in awarding of cancer treatment
tender'' and assure d the public and the media that the department was in the final
stages of making an award. A copy of the GD oH's media statement is attached
Annexure "SJM17".

[62] In a television interview hosted by Morning Live presenter, Leanne Manas, on
29 April 2024, GDoH, represented by Dr Ntsakisi Maluleke, confirmed that only the
portion of the tender that relates to radiation planning services has been awarded.
The R250 million allotted for radiation oncology services is, therefore, to be used for
radiation planning services, meaning no actual radiation oncology services will be
recei ved by the patients on the backlog list. It is not clear to me whether the latter
was part of the utterances of Dr Maluleke or is a conclusion drawn by Ms Meyer.
This use of the full R250million for the planning service is denied by the GDoH as will
transp ire later.

[63] On 30 April 2024, Gauteng Health published a media statement seeking to
provide an update on the radiation oncology services tender. In the media statement,
Gauteng Health announced that:

"The Department is pleased to announce that a service provider has been
appointed to provide radiation oncology services as outlined by the
Department's standards for comprehensive quality oncology care as per the
applicable treatment guidelines.

Currently , radiation oncology services are offered at Charlotte Maxeke
Johannesburg Academic Hospital and Steve Biko Academic Hospital. The
finalisation of the radiation oncology services tender will assist to expand the
provision of radiation oncology healthcare s ervice in the province. Contrary
to allegations that the Department has not utilised the R784 million
allocated to address the backlog in surgical and radiation oncology
services, a total of R534 millions had already been invested on
oncology, medical and allied equipment such as cutting -edge linear
accelerator machines and the building of bunkers for some of the
machines. (my emphasis)

Furthermore, R250 million has been allocated for the outsourcing of the
radiation oncology tender which has been finalised for a period of o ne year.
The Department has already commenced with another tender p rocess to
ensure that when the ensure that when the 12 months contract lapses the
services continue seamlessly as the Dep artment increases radiation oncology
services .”

[64] The Alliance is of the view that the GDoH's public statement lacks specific
detail about the nature of the services to be outsourced, who the service provider is
and how the outsourcing will take place . The statement is annexed to the founding
affidavit as “ SJM16 ”. This media statement is at least in respect of the expenditure
of the R250 million less than frank and arguably on the balance as well.

[65] Ms Meyer states that she became aware of the fac t that Varian (the 4th
respondent) was the successful bidder for the category 3 part of the service. This
means that the tender for the planning services was actually awarded to the 1 1th
Respondent , Siemens Healthcare (Pty) Ltd.

[66] The Alliance ’s criticism on the GDoH media release is as follows:

66.1 Of the three categories of services provided for in the tender, only
category three, the planning services, was awarded . Thus, Gauteng Health
has awarded a tender for the planning of various treatments without
appointing any service provider to actually provide the medical treatment. This
means that cancer patients on the backlog list are still not receiving the urgent
lifesaving radiation and oncology services that the ring -fenced allocations
were provided for - and will not receive these services in the immediate future.

66.2 Gauteng Health continues to reiterate that it is providing radiation
oncology at Charlotte Maxeke and Steve Biko. Though Gauteng Health may
be providing radiation oncology services to other cancer patients, it is not
providing suc h services to cancer patients on the backlog list. This continues
to be the case even though Gauteng Health was given a special allocation
ring-fenced for the purpose of clearing the backlog list and providing radiation
and oncology services to these patie nts. Gauteng Health cannot refuse or fail
to provide life -saving care to patients on the backlog list when a ring -fenced
allocation was given to Gauteng Health for this purpose. ”

[67] The main complaint of the Alliance is that the award for “ planning services” in
itself brings no relief to patients on the backlog list. The criticism is that no service
provider is appointed to provide the actual radiation oncology services in
circumstances where the delivery of such services through such appoin tment is
urgently required and could be life -saving. This is said to be more so because the
amount was ring -fenced for the backlog patients and GDoH could therefore not
refuse or fail to provide services to persons in the circumstances. It acknowledges
that GDoH may well be supplying radiation oncology services to other patients. It
also alleges that by only focussing on the planning services GDoH demonstrated
that it has no intention to fully outsource radiation oncology services to assist the
patients on the backlog list by providing treatment as soon as possible. The Alliance
views this as a breach by GDoH of sections 7(2), 27, 33 and 195 of the Constitution.

[68] It also poses the question: If R784 million was to be used for addressing the
surgical an d radiation oncology backlog questions arise about why the GDOH
decided to use only R250 million for the radiation oncology backlog and why or how
was it decided that the R250 million would be used for planning purposes. It appears
that the decision to use R250 million for planning purposes was taken because
irrelevant considerations were taken into account or relevant considerations for
example the cost of providing radiation oncology services to patients on the backlog
list was not considered. It states t hat only allocating R250 million to radiation
oncology services is irrational and arbitrary, when the total allocated budget was
R784 million to be spent between surgical and radiation oncology services. The
decision to only focus on planning services, to the exclusion of other services, in the
endeavour to address the radiation oncology backlog also appears to be arbitrary
and irrational.

[69] On 5 June 2024 Section 27 addressed a further letter to the GDoH and
demanded that it desists from paying, disbu rsing or otherwise dealing with the R250
million. It also called upon GDoH, yet again to take steps to urgently provide
radiation oncology services to patients who are on the backlog list. In this email it
urged the GDOH to:

69.1 update the radiation onco logy backlog list;

69.2 clinically assess all patients on the backlog list;

69.2 provide patients with radiation oncology planning services; and

69.3 provide patients with radiation oncology treatment.

69.4 provide it with updates on the progress it made on these steps.

[70] A copy of the letter is attached as annexure "SJM19. This letter remains
unanswered and the applicant was at the time the appl ication was launched still
uncertain as to whether the GDoH has updated the backlog list after March 2023.

[71] Under the rubric “ The compelling need for radiation oncology treatment ”
the Alliance repeats that radiation oncology services are a critical component in the
treatment of cancer and that International standards and the Department of Health's
guidelines require that cancer patients ought to receive radiation treatment within
three months of their diagnosis or after surgical removal of a tumour. If patients do
not receive radiation treatment within the recommended timeframe of three months,
they must undergo further assessment, cancer staging and where required, further
surgery and chemotherapy before they qualify for radiation treatment again.

[72] The Alliance refers to the Clinical Guidelines for Breast Cancer Control and
Management ("Breast Cancer Clinical Guidelines"), published by the Department of
Health in April 2018 which requires radiotherapy resources to be allocated within 60
days of surgery and no more than 90 days after surgery. The Breast Cancer Clinical
Guidelines record at page 85, that:

"over 3 000 South African women die from breast cancer each year, but many
survive and become role models for other women and other cancer patie nts."

[73] If the patient does not receive radiation treatment timeously, there is an
increased likelihood that there will be a local recurrence in that the cancer may grow
back in the affected area. Once the cancer grows back, the patient is left with no
choice but to start the treatment cycle all over again: there may be chemotherapy
and possible surgery. Post -surgery, the patient will have to take their place on the
waiting list to receive radiation treatment.

[74] Ms Meyer emphasises two factors. The first is that in the public health care
system, patients are often diagnosed quite late after the onset of cancer. Most
patients are typically diagnosed at what is referred to as stage 3 or stage 4 of the
cancer. Once these patients undergo surgery to remo ve the cancer, the need for
radiation treatment becomes imperative. If a patient receives radiation treatment,
within the 3 -month window period, it is likely that whatever cancer cells remain after
surgery can be eradicated and the patient is better placed to make a steady and
good recovery. If the patient does not receive the radiation treatment at all, there is
increased likelihood that the cancer could grow back and metastasize to other
organs. This renders the need for timeous radiation oncology treatment even more
compelling. I interpose the following rhetorical question here – should a new stage 4
patient now be neglected in favour of a backlog list patient? I have no doubt that a
suitably qualified medical doctor may well co nclude that depending on the competing
backlog patient’s condition the hypothetical stage 4 patient requires treatment more
urgently. The point I try to demonstrate is simply this: the decision is not as simple as
the Alliance would have it and is probably best left to those qualified to make such
decisions.

[75] The second factor raised is that there appears to be no way to properly track
a cancer patient's health while they await radiation therapy. In some instances, it is
possible that a cancer patien t who is on the backlog list dies or becomes a palliative
patient, while awaiting radiation treatment. There is no accurate record -keeping in
this regard. The Alliance is unable to tell the Court, how many patients who were on
the backlog list have since s uccumbed to their illness or have lost the option to
obtain curative care as they can no longer benefit from radiation oncology treatment
as a means of facilitating remission.

[76] The Alliance states that this factor is demonstrative of the compelling ne ed for
urgent and immediate radiation oncology treatment for those on the backlog list, a
need that cannot wait for Gauteng Health to conclude a tender process for the
procurement of the necessary machines, the building of bunkers for those machines
and th e recruitment of sufficient staff to provide the service.

[77] Despite being granted significant financial resources, Gauteng Health is not
demonstrating any sense of urgency to devise and implement a plan to address the
radiation oncology backlog and to spend the allocated funding towards reducing the
backlog in Gauteng. It states that in the mean time, the lives of cancer patients are
perilously at risk .

[78] It is in the above context that the histories of patients Mses “V”, “W” and “ X”
and “Y” are relevant.

[79] Ms “V” was diagnosed with stage 2 inflammatory breast cancer in September
2020. She underwent her first sessions of chemotherapy between October 2020 and
April 2021. Thereafter, she underwent a lumpectomy, a surgical procedure to
remov e the tumour in the breast and a small amount of the surrounding tissue. In
June 2021 she became eligible for radiation treatment and was referred accordingly.
She has been awaiting radiation services since June 2021. In the meantime she has
suffered three recurrences of her cancer which has now metastasized to her lungs.
She is a single mother to a teenage daughter who she would love the opportunity to
raise.

[80] Ms “W” was diagnosed with Estrogen Positive Stage 3 breast cancer in
February 2022. She und erwent her first sessions of chemotherapy between March
2022 and September 2022. In November 2022 she underwent a surgical procedure
to remove cancerous tumours in the breast and axiliary lymph nodes. She was
eligible for radiation treatment in November 20 22. After approaching the radiation
oncology department at CMJAH, she was advised that the radiation oncology
department at CMJAH was backlogged and placed on the backlog list. She has
suffered one further recurrence of the cancer since November 2022, whic h has
necessitated that further chemotherapy treatment and a further surgery. She only
received her first radiation treatment on 18 June 2024 . She has two teenage
daughters and she is concerned whether she will have the opportunity to raise them .
She is i n fact a demonstration that a person on the backlog list did receive radiation
therapy at CMJAH.

[81] The Alliance makes the valid point that the repeated chemotherapy and
surgeries comes at an expense to the public purse. In addition both Mses “V” and
“W” have described side effects which include a low white blood cell and platelet
count which results in excessive bleeding and extreme susceptibility to other illness,
hair loss, tremors which make it difficult to perform simple tasks such as writing,
difficulty walking, skin peeling to the point of forming blisters, nail peeling and skin
discolouration. As a non -expert I have often encountered similar narratives and I
have n o expert evidence before me that the specific symptoms would not have
occurred anyway or would have been prevented if radiation therapy was applied the
moment they became eligible for same. I will however based on Ms Meyer’s
background accept that neither Mses “V” or “W” received optimal treatment.

[82] Affidavits of these witnesses including Mses “X” and “Y” are also annexed to
the founding affidavit as “ SJM22 ” and “ SJM23 ” respectively. Both were radiation
oncology patients at CMJAH. Ms “X” was diagnosed with stage 3 breast cancer in
July 2018. She only received radiation treatment at CMJAH two years and seven
months after she was deemed eligible for the treatment, in October 2021. While she
waited for her radiation oncology treatment, she suffered a recurrence of the cancer
which necessitated further chemotherapy and surgery.

[83] Ms “Y” was diagnosed with stage 2 breast cancer in April 2021. She waited
two years for radiation treatment between June 2021 when she became eligible for
the treatment and June 2023. Nervous that she may die awaiting radiation treatment,
Ms “Y” and her spouse secured a bank loan in order to obtain radiation treatment in
the private sector. She is now indebted to the bank for an amount of R153 000 which
is what the treatment in the private sector cost her. Ms es “X” and “Y” are mothers
with children t hey are terrified to leave behind. Once again I have not been favoured
with expert evidence as to their prognosis with and without radiation treatment .

[84] The Alliance has repeatedly engaged officials of GDoH to try to find a suitable
solution so that patients receive much needed radiation treatment urgently. Since
June 2023, Gauteng Health has stopped responding to the Alliance and its attorneys
of record. In the meantime, the Alliance asserts that patients on the backlog list
remain without life -saving treatment and their health is likely deteriorating. This is
despite the fact that funds have been allocated and ringfenced to provide the very
services and treatments that are required and which could save their lives.

[85] Hence the Alliance has decided to institute the rev iew and set aside the
decision of GDoH of 30 April 2024 and to seek the interim relief set out above.

[86] The Alliance submits that it has met the test for interim relief in that it has
demonstrated a protectable prima facie right, although open to some doubt; and has
a well -grounded apprehension of harm if the interdict is not granted; the balance of
convenience favours the grant of the interim interdict and the Alliance has no other
satisfactory relief.

[87] The Alliance specifically address es the effect of the relief on the separation of
powers doctrine given the fact that the provincial health respondents are state
entities . With regard to the prima facie right Ms Meyer states that she is advised that
the State is obliged in terms of section 7(2) of the Constitution to respect, protect,
promote and fulfil the rights in the Bill of Rights. This includes the section 27 right to
healthcare. This obligation incorporates both negative and positive duties: the State
bears positive obligations to tak e active steps to promote and ensure the right is
protected and fulfilled; and negative obligations in that it may not take steps to
undermine the right.

[88] Ms Meyer is further advised that as a matter of law, all decision -making by
the State that cons titutes the exercise of public power or performance of a public
function (as is the case here) must, at a minimum, comply with the prescripts of the
rule of law, and more particularly the constitutional principle of legality. Section 33 of
the Constitution , read with PAJA, further requires the State's decision -making to be
lawful, reasonable and procedurally fair.

[89] She further alleges that in addition, public administration is required, under
section 195 of the Constitution, to ensure that resources ar e managed effectively,
efficie ntly and economically. There is also a mandatory obligation for public
administ ration to provide services equitably and fairly.

[90] Despite having funding allocated to address the radiation oncology backlog
since March 2023, the GD oH has not taken any meaningful steps towards the actual
provision of radiation oncology treatment to cancer patients who are on th e backlog
list.

[91] She is advised and submit s that the GDOH's failure to use the allocated
funding of R784 million for the specific purpose of urgently addressing the backlog in
"surgical and radiation oncology services" and/or its decision -making in relation to
the manner in which it intends to use the funds to provide radiation oncology
treatment to back -log list cancer patients:

91.1 Violates the rights of access to healthcare services of cancer patients
who are on the backlog list and who are yet to receive life -saving radiation
oncology treatment and services at CMJAH;

91.2 Violates the A lliance ’s right to just administrative action (as well as the
right of the cancer patients themselves);

91.3 Breaches the State's obligation to take positive measures to protect
and promote the right of access to healthcare in circumstances where the
funds have been made available but simply not used by GDoH for the
purposes for which they were allocated;

91.4 Breaches t he State’s obligations not to take negative measures that
would undermine the right of access to healthcare services;

91.5 Violates the State's obligations under section 195 to uphold the
democratic principles and values enshrined in the Constitution, par ticularly to
promote the efficient, economic and effective use of resources (resources
which have already been allocated for this specific use), the provision of
services fairly and equitably, being responsive to people's needs, and
accountability and tran sparency by providing the public with information
timeously and accurately.

[92] The Alliance alleges that the interim interdict is necessary to ensure that the
provincial health respondents are held accountable for the use of the allocated
funding to add ress the radiation oncology backlog in Gauteng.

[93] It also alleges that the circumstances of this case demonstrate devastatingly
and explicitly the A lliance’s reasonable apprehension of imminent and irreparable
harm: the cancer patients who are on the b acklog list are facing life -threatening
illness. If they do not receive radiation oncology treatment, they may not survive. In
the meantime, and as detailed above, in the absence of the much -needed radiation
oncology treatment, the health of the cancer pat ients continues to significantly
deteriorate . Back -log cancer patients have passed away, waiting for such treatment
that has not been forthcoming.

[94] It further alleges that in the face of the imminent and already occurring harm
the balance of convenie nce must favour the grant of the interim relief.

[95] The interim interdict is intended to ensure that the R2 50 million allocated for
addressing the backlog in radiation oncology treatment is indeed used for this
purpose and not otherwise spent or dissipated. The GDoH has done nothing
meaningful since the money was allocated in March 2023 to actually provide
radiation oncology treatment to the cancer patients. On the other hand, the health
and general well -being of the cancer patients has significantly deteriorated.

[96] If the interim interdict is not granted there is the real risk that the GD oH will
spend the R250 million without the cancer patients on the backlog list receiving
radiation oncology treatment. There is no indication from the GD oH about how and
when the radiation oncology treatment will be provided once it ha s been planned.
The information Ms Meyer obtained through the Alliance’s network and through
utterances made by Dr Maluleke in the Morning Live interview mentioned above,
suggests that the GDoH is intending to use the R250 million only for "planning
servic es". There is no information from the GD oH about what planning services
means when it will be provided and how the cancer patients will access the
treatment. Once the money is spent it cannot be recovered and the patients’ health
will continue to deteriora te. Given the facts disclose d below re the effect of such
relief on Varian/Siemens Lifecare (Pty) Ltd I need not deal with their involvement
further.

[97] It is further alleged that the Alliance truly has no other remedy available.

[98] Ms Meyer states t hat she is advised that the grant of the interim interdict will
not impermissibly violate the separation of powers. If the interim interdict is granted,
the respondents, as a state entity, are not being restrained from exercising their
executive authority. The interim relief would evidently promote the spirit, purport and
object of the Constitution, as required by the Constitutional Court in National
Treasury and Others v Opposition to Urban Tolling Alliance and Others1

1 See para 45

[99] She submits that the cancer patients' section 27 right to access health care
services features front and centre in this application. The grant of the interim interdict
will mean that the respondents cannot spend the R250 million until the finalisation
and outcome of the review application under part B. The Alliance intends to
prosecute the review expeditiously and this undertaking is already recorded in the
notice of motion.

[100] The Alliance thus submits that in all the circumstances, the Alliance has me t
the requirements for an interim interdict.

[101] It maintains that the matter is urgent given the position of the patients on the
backlog list. It also fears that if the R250 million is spent on planning radiation
oncology services only this will not re sult in the cancer patients receiving treatment.

The position of the 5th and 6th Respondent s

[102] The 5th and 6th respondents, in terms of Part A, filed an answering affidavit on
16 July 2024 . Their answering affidavit is brief and apart from pointing out that it has
no competency to exercise powers in the Gauteng Province on the facts pleaded
read with the Constitution, brings to bear the objection that to the extent that the
Notice of Morion seeks relief against the 6th respondent same is simply incompetent.
It is also alleged that the joinder of the national government respondents constitute a
misjoinder .

[103] The Alliance replied hereto on 18 July 2024 effectively conceding that the
relief sought against the 6th respondent is incompetent , stating that they would only
persist in the reformulated relief set out in the form of a draft order annexed as
annexure “A” to its replying affidavit. In this draft order there is no relief sought
against the 5th and 6th respondents at all. The Alliance denie s that the joinder of the
national government respondents amounts to a misjoinder maintaining that th ey
were joined due to their interest in the matter in as much as the 5th and 6th
respondents were involved in discussions attended by the Alliance and the provincial
health respondents about the manner in which radiation oncology treatment could
expeditiously be provided to cancer patients in the public sector .

The Provincial Health Respondent’s Defence

[104] The provincial health respondents only filed their answering affidavit on 19
July 2024 . On 22 July, the Alliance compl ied with rule 41A (n o doubt due to the
provincial health respondents referring to the Alliance’s failure to do so) . In my view
given the nature of the litigation Rule 16A (1) should also have been complied with
from the outset and the provincial health respondents complained a bout this by filing
a Rule 30A notice on 19 July 2024 . On the same date it filed a Rule 7 notice
disputing Ms Meyer, the deponent to the founding affidavit’s, authority to act on
behalf of the Alliance . On 2 August 2024 the Alliance complied with Rule 16A (1). A
response was filed to the Rule 7 notice on 22 July 2024 together with a resolution
passed by the Executive Board of Directors of Cancer Alliance NPC (Reg
no:2021/844313/08) signed by Louise Elizabeth Turner as Executive Director and
Treasurer. The r esolution takes cognisance of various aspects covered in in Ms
Meyer’s founding affidavit but does not disclose that she has the authority to speak
on behalf of the Alliance . The MOI of an entity styled Cancer Alliance is also
annexed . The description of t he applicant in the founding affidavit does not
correspond with the entity mentioned in the MOI . Given that the provincial health
respondents did not take the matter further I make no further mention of the
aforesaid state of affairs.

[105] By the time t he matter came up for hearing in the Urgent Court before Twala
J on 23 July 2024 the Alliance had not yet filed its replying affidavit . On that day
Siemens Healthcare (Pty) Ltd was formally joined as the 11th respondent with no
order as to costs. The hearing of Part ”A” of the matter was postponed sine die and
the costs were reserved for determination at the hearing of Part A of the notice of
notion. The DJP was approached for further directions as to how the matter shou ld
be conducted. The DJP allocated a special motion date for this matter i.e. 21
November 2024 presumably on the basis that the matter remained urgen t and,
ultimately, the Alliance filed their replying affidavit on 13 August 2024.

[106] The provincial hea lth respondents filed their answering affidavit on 19 July
2024 with the 2nd respondent, the head of the department of Health, Mr Malotana as
the spokesperson . He met the Alliance’ s case with a series of defences. Firstly he
objects to the relief in Part “A ” of the Notice of Motion with the fundamental defence
that it amounts to an interference with the operations of the GDoH. He points out that
the issues challenged are the subje ct of procurement processes in the department
and that the Alliance fails to demonstrate a breach of internal procurement policies,
treasury regulations or section 217 of the Constitution.

[107] He points out that there is no R250 million that is going t o be paid to a service
provider. The R250 million which was allocated in the 2023/24 financial year was
ring-fenced for radiation oncology outsourcing. Radiation oncology outsourcing
includes 3 categories which is Category 1, Category 2 and Category 3. It is only
Category 3 that a tender has been awarded to, and the budget in terms of Category
3 where a service provider has been appointed would be demonstrated below and it
is not even a quarter of the R250 million the applicant is referring to. Later it
transpires that the 11th Respondent who was awarded the category 3 planning
tender will see no payment given that it has not performed sufficiently to qualify for
payment. It is submitted that the interdict is based on speculation and that there are
insuffici ent grounds to substantiate same and that it is legally untenable and
misguided.

[108] He is also of the view that the Alliance’s propositions are presented without
facts and in the correct context leading to same being hypothetical.

[109] He emphasises that the facts pertaining to cancer patients are that the
infrastructure to treat adults with cancer is variable throughout South Africa. Gauteng
province has the additional responsibility of rendering oncology services to the
neighbouring pr ovinces of Limpopo, North West and Mpumalanga.

[110] He states that all Primary Healthcare Facilities in the Gauteng Province
screen and diagnose patients for cancer They refer diagnosed patients for
specialised oncology treatment at either CMJAH and SBAH (medical and radiation
oncology services), or for medical oncology services at Chris Hani Baragwanath
Academic Hospital (CHBAH) and Dr George Mukhari Academic Hospital (DGMAH).

[111] According to him t he 2020 National Cancer Registrar South Africa estima tes
that the number of new patients each and every year are 23 634 people that are
treated in Gauteng Province. This obviously places a heavy burden on two centres.
Based on what follows he appears to be referring to CMJAH and SBAH.

[112] During the 2023/ 2024 fiscal year 3 500 patients received radiation oncology
treatment (it would appear at the CMJAH) and 2 527 patients received radiation
oncology treatments at SBAH. He also i ncludes a table of figures in his affidavit
(broken down by quarter) that shows that 16 957 patients are dealt with in the
National Health System as outpatient first attendances with 193 403 outpatient s
follow up attendances. In another column he demonstra tes that CMJAH mainly deals
with cervix, breast, prostate and rectal cancers and SBAH breast, cervix, prostate
and colon cancers.

[113] He also indicates that CJMAH has 3 functional Linac machines and SBAH
has 3 such machines. CMJAH has 7 bunkers of which 2 are empty and SBAH has 5
bunkers all of which are equipped with Linac machines. He also states that a
proposed solution which is currently in implementation by the Department in order to
assist cancer patients effectively is as follows:

"1 . Increasing internal radiation oncology capacity through Chris Hani
Baragwanath Hospital and Dr George Mukhari Academic Hospital bunkers for
the operationalization of 4 LINAC machines; and

2. Procurement of radiation oncology machinery to increase service offering at
CMJAH and SBAH ;

3. Outsource radiation oncology services to the private sector.”

[114] The intention of the Department is to find a lasting solution, and contrary to
the sugg estion made by the Alliance that the solution is to outsource radiation
oncology services to the private sector urgently without following the normal tender
process, such suggestion is expensive and it is not a long lasting solution for the
State, and more than anything, the Department views this an interference with its
administrative powers.

[115] With regard to the updating of the list of patients waiting for radiation oncology
services, the radiation oncology backlog lists are updated daily on site at CMJAH
and SBAH. The lists include the patient's treatment outcomes (Planning, Radiation
Oncology treatment in progre ss, Discharged) and are verified by Hospital Services
monthly. The lists with patients' details cannot be shared in the report due to the
regulations outlined in the Protection of Personal Information Act (POPI A). For the
month of June [2024], the lists in crude numbers are as follows:

115.1 For SBAH, 455 patients are on the waiting list as of 10 June 2024. The
patients include 188 awaiting planning scan, 85 awaiting planning and 82
awaiting treatment start;

115.2 Whilst for CMJAH, 2 562 patients were on the wating list on t10 June
2024, of these, 2000 prostate patients are on hormonal therapy to supress
their testosterone while awaiting radiotherapy.

[116] In addition to the above, in order to reduce the backlog, the Department has
embarked on a tender p rocess to appoint radiation oncology service providers. The
tender was then advertised on 20 October 2023. A briefing session was held on 27
October 2023 and the closing was on 3 November 2023. The tender number
GT/GOH/089/2023 was for the appointment of s ervice providers for the outsourcing
of the radiation oncology services for the Department and wellness for a period of
one (1) year. Category 3 was awarded to Siemens Healthcare (Pty) Ltd (Siemens),
the Eleventh Respondent. The specification for Category 2 had to be cancelled and
reviewed for re -advertisement. He states that he was informed that by the time the
matter is argued, the advert will be out as it is in the final stage. In terms of Category
1, negotiations on pricing were unsuccessful and will be re-advertised together with
Category 2 and as stated above.

[117] In respect of Category 3 (relating to planning) the tender has been awarded to
Siemens, and a purchase order was issued on 1 July 2024. A copy of the purchase
order is attached to the answ ering affidavit marked annexure "LAM1".

[118] He states that on the issue of additional infrastructure, the Infrastructure
building the bunkers at DGMAH and C HBAH , has informed the GDoH that the
construction of the infrastructure is at its final stage. However, Treasury requires
independent stage date reviews for these types of complex projects. On 12 June
2024, the infrastructure received Unicore's last input into the NEC3 contract and are
currently reviewing the sco pe of work. Once done, infrastructure will discuss the
scope with the two hospitals, and then, if all is in order , the contracts can be signed.
Infrastructure has also completed a session with internal engineers to discuss the
scope of work in the construc tion contract. They are d iscussing concerns with the
DBSA Engineering team to see how to respond to the issues raised. The concerns
are mainly around construction standards that need compliance.

[119] He further explains that th e R784 million refers to the cumulative equitable
share allocation over the 2023 MTEF from the Provincial Treasury and was not a
once -off allocation. The detailed breakdown of the allocated budget (equitable
share), is as follows:

2023/24 R250 000 000
2024/25 R261 125 000
2025/26 R273 800 000
Total R783 948 000

[120] I assume the deponent uses the term MTEF in its legal context as same is to
be found in the Money Bill and Related Matters Act 9 of 2009 (since its introduction
with effect 17 January 2019) meaning Medium ‐Term Expenditure Framework which
is defined as follows:

“… the Medium Term Expenditure Framework t hat-

(a) translates government policies and plans into a multi -year spending plan;
and

(b) promotes transparency, accountability and effective public financial
management for expenditure of the current and subsequent two financial
years;” .

[121] He confirms that R250 million is ringfenced for radiation oncology outsourcing .
The amount is special funds given by Provincial Treasury. The R534 million is from
(National Tertiary Services Grant ( NTSG ) and includes the bunkers (R217million),
the remainder is committed to radiation oncology equipment, including
brachy therapy units and small Linac units.

[122] On the issue of increasing of human capacity, according to the human
resources (HR), specifical ly therapists are being recruited at CMJAH (21 therapists),
SBAH (1 therapist). Additional HR interventions at CMJAH include:

122.1 Provided overtime from 16h00 up to 19h00 Monday to Friday;

122.2 Provided Saturday overtime to attend to mainly emerg encie s;

122.3 Plans in place to ensure the advertisement closing in 2 weeks' time,
should be completed before 15 July 2024 to allow those who can start in
August and September 2024;

122.4 Focus is on recruiting at least 5 with planning skills and the rest will be
allocated to treatment areas;

122.5 The currently unused Linac machines will be immediately activated
with the recruited staff;

122.6 Overtime will be extended to new recruits to increase reduction of the
line list backlog that will be confirmed as at end June 2024; and

122.7 Acquisition of the brachytherapy will commence as the contract has
been awarded.

[123] He thus states that t he relief is sought on speculative grounds and innuendos
without verifying the facts , on applicant's own version. He submits that t his is legally
untenable. He also draws the Cour t's attention to the fact that the appli cant only
sought the record in Part B being the r eview and not Part A being the urgent
application. Presumably this was done on the basis that Part “A” is not couched in
the form of an interim review. This is of course no reason to ignore the prescribed
time periods.

[124] With regard to the R250 millio n he states that the R250 million is ringfenced
for radiology oncology outsourcing, and the outsourcing has been put on tender.

[125] The Alliance knew about the advert in respect of the R250 million as far back
as on 20 October 2023 . He states that the C ategory 3 component that was awarded
to Siemens is not even a quarter of the R250 million. Therefore, the remaining
amount of the R250 million will be utilised in Category 1 and Category 2.

[126] He alleges that the Alliance has fail ed to substantiate its grounds for an
interdict. It is not apparent from the papers whether its case is based on the process
of tendering or on the award itself. He makes it clear that the Department has
followed its tender processes in awarding the Category 3 tender, and it will follow its
own policies in readvertising the tender categories. The GDoH commitment to avoid
any specie of deviation is obvious.

[127] He points out tha t on the A lliance’s own version it states in paragraph 76 of
the founding affidavit that on 30 April 2024, the Department issued a press release
which confirms that R250 million has been allocated for the outsourcing of radiation
oncology tender which has been final ised for a period of 1 year. This particular
tender was advertised on 20 October 2023. He repeats that t his means that the
Alliance has been aware about the tender for R250 million at least since the 2 0
October 2023. In the circumstances, he finds it surpr ising that t he Alliance would
only bring an application more than 10 months late and pretend as if nothing has
happened. To the extent that this assertion goes to under mine urgency it is of no
assistance. The Alliance could not have known then that only a part of the tender
would ultimately be awarded. At best this demonstrates that the Alliance knew that
the apartment was using a tender process as opposed to a deviatio n process. I have
already referred to the fact that the Alliance does not rely on an agreement by the
provincial health respondents. Further to that, as far back as 1 February 2024, the
Alliance knew that it is only Category C of the tender that will be aw arded, and this
was confirmed by Dr Maluleke in an interview with SABC on 29 April 2024 .

[128] Despite the fact that the application is not urgent the Alliance instituted this
applic ation as an urgent application and this matter has been set down for the 23
July 2024.

[129] He thus submits that the Alliance’s a pplication is not urgent as the
Department has implemented the plans to provide radiation oncology services in the
province, the backlog list has been updated and all necessary steps have been
taken in making sure that the Department provides radiation oncology services in the
province. In addition to the above, the tender for planning oncology services which is
a subject of R250 million has been awarded to the successful bidder and the
purchase ord er has been issued which renders the interdict moot.

[130] He states that i t would be argued at the hearing that if the Court is not minded
to determine the merits of this application, which in any event have become moot,
the Court would be asked to strike this application from the roll. However, should the
Court be minded to entertain the application's merits, it should simply dismiss it with
costs a s an ill -conceived application.

[131] The deponent continues to state that he has been advised that interdicts are
about future events and not past events . He states that the Alliance is aware that a
tender was advertise d and awarded to the successfu l bidder who a s a result, has
started to perform its duties. The successful bidder will be paid what is due in terms
of the purchase order. As will be seen later the GDoH eventually followed another
approach.

The Provincial Health Respondents Grounds of O pposition

[132] The provincial health respondent s then raises eight grounds of opposition to
the application.

[133] The first ground already touched upon is urgency. The others are a failure to
establish a factual complaint, the incompetence of the relief, no prima facie right, the
balance of convenience is against the Alliance, there is no irreparable harm, the fact
that there are alternative remedies and the non -joinder of material parties.

[134] On urgency the fundamental criticism is that the application is only brought 2
years after the last meeting of the Task Team whilst the essence of the complaint is
the exact issues the Task Team was tasked with and t he Alliance is not candid with
the court as to whether the Task Ream finalised its work or was dissolved. It
appears to me that the Tas k Team only had a lifespan of one year and that once a
budget was procured it was up to the provincial health respondents to utilise it in a
suitable way.

[135] A further point of criticism is that the Alliance knew about the tender for about
10 months and then only sprung into a ction after the 30 April 2024 press release.
Whilst the argument about urgency speaks to the Alliance’s failure to institute its
application based on the breach of the agreement listed in paragraph 62 of the
founding affidavit (which the Alliance made clea r it no longer relies on) some
measure of urgency seems to remai n. I say so given that the media release of 30
April 2024 provides cold comfort with regard to the outsourcing of radiation oncology
services . The provincial health respondents do not deny tha t funds were provided for
outsourcing. If anything it ma de it clear that another tender is in process to ensure
seamless provision of outsourced services once the 12 month s in respect of an
earlier tender lapses. This can only be a reference to the Catego ry 3 tender lapsing
which we know deals only with planning services. Nothing in this media release
suggests other radiation services are being outsourced.

[136] Seen from the Alliance’ s perspective a whole year has elapsed since the
budget was acquired and no comprehensive de facto outsourced r adiation oncology
service is in place. Although the Alliance could have acted earlier I am loathe to
blame them for holding back till the positio n became clear. In addition th e media
release failed to deal with the backlog list. At the same time the Alliance found it
puzzling that only R250 million of the R784 million was being utilised for outsourcing.
The decision to only outsource the planning services also appeared irrational and
arbitrary. At worst the Alliance was being cautious and conservative and did not
understand the legal concept of the MTEF . The issues pertaining to specifications
and protocols were not completely lost on them. The fai lure of the provincial health
respondents to answer correspondence and ultimately the failure to respond to the
letter of 5 June 2024 left them little choice but to litigate.

[137] As to the defence that there is a failure to establish a factual complaint which
could give rise to a declaration that the conduct of the provincial health respondents
are unlawful and unconstitutional in the sense that there is no breach of policy or
breach of legislation the following: Given the background set out in detail by the
Alliance the emphasis must be on these respondents ’ failure to act sooner to focus
on the backlog list and more specifically to address the obvious demand for radiation
oncology services at CMJAH. As will transpire below it admits that it needs help at
CMJAH and SBAH.

[138] The provincial health responden ts defend themselves against the aforesaid as
follows:

139.1 The GDoH have acted in terms of the Constitution and the guiding
policies which obliges the state to provide access to healthcare services
including productive healthcare;

139.2 The State is al so obliged to take reasonable care and other measures
within its reasonable resources to achieve the progressive realisation of the
right to access to healthcare;

139.3 The State is not obliged to refuse emergency healthcare to citizens.
Both SBAH and CMJ AH serve as healthcare facilities in terms of the
Constitution and other legislatives and may not refuse to admit persons
referred to it by any other institution. The right to access to healthcare is
provided in a context in which the State is obliged to w ork with personnel
trained by the State in a difficult educational context (given the country's
history) and within the limited resources ;

139.4 In principle, both hospitals [are] open day and night and the hospitals
run emergency shifts. The doctors on duty in the night give priority to
emergencies. In emergency situations, more critical cases take priority over
less critical ones;

139.5 In essence hospitals are a facility where r easonable medical care and
treatment and advice are rendered. The personnel in the hos pitals do their
utmost best to provide access as required by the Constitutio n but these
attempts are limited by human and financial resources ;

139.6 The respondents fulf il their constitutional obligations to provide access
to healthcare and that obligation is fulfilled progressively;

139.7 The hospitals admitted patients referred to it by other institutions and/or
who come to hospitals directly. When admitting these pati ents, they are
fulfilling their statutory obligations;

139.8 In the context of this matter, the relationship between cancer patients
and the respondents flows directly from section 27(3) of the Constitution.
Section 27 of the Constitution requires the res pondent to achieve progressive
realisation of the rights, but it does not guarantee availability of the best
healthcare. The respondents can only act unlawfully if they breach a statute,
and in this case, it is submitted that there is no statute that has b een
breached ;

139.9 As a result, there could be no comparison drawn between the services
rendered by these public institutions and the private sector, as these public
institutions service 80% of the communities which majority are under
privileged;

139.10 In the circumstances, and within the available resources the hospitals
are always overstretched. However, the medical staff in these hospitals do
their outmost best to service cancer patients against the backdrop of limited
human and limited financial res ources ;

139.11 In an attempt to address the challenges that are faced by cancer
patients, the Department in February 2022 established a Gauteng Department
of Health Cancer Treatment Task Team (Task Team) which I have already
dealt with in the Alliance’s case. The Department has been doing its best to
procure machines and to improve its services as far back as 2019 within its
limited budget and resources. As a result, in 2023, the Department was
allocated fund s to deal with these challenges and a tender was advertis ed
specifically to address the challenges pointed out by the Task Team [of] which
only Category C could be awarded to Siemens on 30 April 2024.

[139] The GDoH states that it has evidence -base treatment guidelines developed
by the two oncology centres of C MAJH and SBAH. Recent clinical data supports the
use of shorter radiotherapy schemes in the management of most cancers including
breast, prostate and rectum cancers. This has been included in international peer
reviewed guidelines and applied locally. Devi ation from treatment guideline may be
required on occasion and clinical justification is required in these cases. The
Department nevertheless admits that it is currently in need of assistance to reduce
the current radiotherapy waiting times at both CMAJH a nd SBAH for breast and
prostate patients.

[140] I will later deal with the Rule 35(12) notice the Alliance delivered to the
provincial respondents to produce i.a. the above treatment based guidelines which
were referred to in paragraph 66 of the answerin g affidavit,

[141] Of more importance is the fact that the deponent admitted that the GDoH
requires assistance in order to reduce the radiotherapy waiting times at both CMJAH
and SBAH for breast and prostate patients.

[142] The position for radiation therapists has been adv ertised in the DPSA Circular
20 of 2024 with the closing date 24 June 2024 for 20 therapists (19 for CMJAH and 1
for SBAH). Eighteen (18) applications were received and all were short listed. The
interviews are scheduled for 23 July 2024 with a target that the successful
unemployed candidates will resume duties on 01 August 2024. Otherwise, those
who are currently working will be required to serve notice and only resume duties at
CMJAH by 01 September 2024. Another advert for radiation therapist sessional
workers (Ref RT/01/CMJAH/2024) was also issued and closed on 11 July 2024.
Four (4) applications were received and subsequently short listed. Interviews are
scheduled for 19 July 2024 and the successful candidates will resume duties on
Saturday, 20 July 2024. The department also sourced four (4) radiographers from
Johannesburg District Health to work overtime. This team will be dedicated to the
scanning process and will assume duties on or around 03 August 2024. The
advertisement Annexure "LAM2" is signed a t the bottom by Ms C.M. Bogoshi and
dated 5 July 2025. Given the closing date referred to this appears to be a bona fide
error

[143] I should observe that t here is no explanation why the above advertisements
did not take place earlier and the Court is als o not informed whether the available
machines can be used productively with the present staff compliment.

[144] In addition the organisational structure was reviewed in line with the
International Atomic Energy Agency’s (IAEA) recommended standards and
submitted for approval in December 2023 as appears from “ LAM3 ”.

[145] Therefore it is submitted that the Alliance has not made out a factual and legal
basis for a declaratory order. It is further submitted that the application is speculative
and a fishing expedition and that there is no factual causation to the claim pursued
by the Alliance.

[146] The incompetence o f the relief sought is also raised as a defence . The GDoH
also gives the Court a glimpse of what occurred since the tender was advertised on
20 October 2023. It explains that the tender was split into 3 categories. Category 1
dealt with a technical proposa l of the tender for professional/specialist oncologist
services, Category 2 was a technical proposal of the tender for technical services.
Both Category 1 and Category 2 for different reasons were withdrawn with an
intention to readvertise them.

[147] Category 3 was awarded to Siemens on or about February 2024. Subsequent
to the awarding of the tender, the Department entered into a contract with Siemens
which contract has been in operation since May 2024 for a period of one ( 1) year.
For continuation, thi s Category 3 tender has been advertised on 13 July 2024
together with the re -advertisement of Category 1 and 2. According to the GDoH
there is a valid contract in place with Siemens.

[148] The purchase order for planning services is for R 17,480,000.00 and not R250
million. The tender was approved om 28 February 2024, a copy of the
recommendation was signed on 4 March 2024 and attached as “ LAM4 ”. The award
letter and contract with Siemens wa s signed on 23 April 2024. A copy of the contract
form with it is attached as annexure "LAM5" .The list which contained the successful
bidder was published on the Gauteng e -T enders Portal website, which list appears
at annexure "LAM6".

[149] The GDoH thus objects to the interdictory relief on the basis that the tender
award was not unlawful yet the Alliance wishes to review same in the main relief and
prevents payment of the R250million. It also complains that neither the BEC nor BAC
involved in the tender was joined. The latter is of course nonsense once the focus
turns to the notion of deviation and cognisance is taken of the ongoing “urgent” state
of affairs.

[150] The GdoH’s 4th objection to the relief being granted is that no prima facie right
is disclosed. It submits that as a trite principle of law, an interdict against an organ of
state is granted only in the clearest of cases. The applicant seeks to interdict the
Department from exercising its statutory powers in terms of section 217 of the
constitution and The Preferential Procurement Policy Framework Act, and its Supply
Chain Management policies. It is of the view t hat such relief is inappropriate in the
circumstances of t his case.

[151] From my perspective t his is a misconstruction of the Alliance’s intent and the
relief sought. The Alliance expected urgent action from the GDoH deploying its most
expeditious response method i.e. deviation , albeit that no case has been ma de out,
in my view, that there was an agreement to do so. Ms Mapipa’s correspondence
referred to above speaks for itself

[152] Its fifth objection is t hat the balance of convenience is against the Alliance. It
submits that: it is not convenient that the Alliance be granted interim relief for the
following reasons:

153.1 The tender was lawfully awarded to Siemens and Siemens has begun
its duties ;

153.2 The application is in effect a gag [g]ing order to the extent that it seeks
to prevent the Department from fulfilling its constitutional mandate ;

153.3 In any event, the Alliance has launched a review application which will
deal with all the issues that it is alleging on its papers. In the review
application all the allegations will be dealt with holistically not in a piecemeal
fashion. The application is nothing other than an abuse of the court process,
that is deliberately aimed at running and controlling the Department from
outside. It ought not to be permitted to succeed simply because it is litigating
tactical to dismantle the Department 's constitutionally enshrined duty to
consider and award tenders in line wit h the applicable legislation and its
internal policies .

[153] It also objects to the relief on the basis that no irreparable harm will be
suffered. It submits that any harm will be limited by the following:

154.1 The applicant has launched a review application which will address all
the issues that it is complaining about;

154.2 The award of the tender is final. The decision was made on 30 April
2024 . A year after funding was procured ;

154.3 It cannot suffer harm where it has no right, alternatively, and the "harm"
is not a real harm, the issues that it is challe nging are still going to be argued
in the review application. This is tantamount to saying that the people who
pass away or have recurrences of cancer in this period suffer no harm.

[154] The deponent also states that the founding papers are voluminous and that
the GdoH had to wade through the Alliance’s 308 page s and that it has been caused
undue prejudice in the context of urgent proceedings, and the Alliance has failed to
explain why it was necessary to file such lengthy papers . It alleges that the
application is for this reason too , an abuse of the court process and still born. I have
to agree that the notion that the provincial health respondents could do justice to
their case in the period afforded to them is unacceptable. I am not surprised that they
filed their papers late.

[155] Its 7th objection is that there are a lternative remedies. It will still have an
opportunity to raise its complaints in the review. The Alliance should not be allowed
to abuse the Court processes where its intention is calculated to control and interfere
with the lawful processes of the Department. Effectively, the Alliance’s intention is to
deny the Department its ability to discharge its constitutional mandate in line with its
policies. In my view t here is no foundation for the conclusion of such intention. The
utterances made by the Alliance whilst Mrs Meyer was part of the Task Team speaks
only of a concern for the Alliance ’s consti tuency.

[156] Finally its 8th objection concerns the non -joinder of certain parties . The
Alliance seeks to obtain an order directing the GDoH to take all steps necessary to
provide the radiation oncology services to backlog list patients who are awaiting
treatment at CMJAH and SBAH in Gauteng at a public and or private facility under
circumstances where n o such entities were joined to the proceedings . The GDoH
regards this as a material non -joinder, as the Alliance seeks an order against these
other public facilities or any private facility, in their absence, that they accept these
backlog list patients who are awaiting treatment at CMJAH and SBAH, without
providing these other public facilities or any private facility with an opportunity to file
answering affidavits stating their respective capacities to admit these backlog list
patients or set out the costs which the Department would be saddle d with if did admit
these backlog list patients . This non -joinder extends , according to the GDoH , to the
failure to join the Task Team and its members who were tasked to find a solution to
"the radiation oncology crisis in the province". It alleges that I t would be necessary
for all members of the Task Team to have been joined to afford the Court a thorough
and complete understanding of the issues at hand and then make a proper
determination. Given the aforesaid non -joinders it submits that the Alliance cannot
obtain the relief which it seeks.

[157] The 8th objection seems to me a perverse notion. Outsourcing was sought as
a remedy by the Alliance and the GDoH ostensibly went along with it although with
reservations as referred to above. It was not necessa ry for the Alliance to cite all
potential suppliers of “radiation oncology services”. It was the provincial health
respondents ’ task to find them as quick as possible and appoint them. In this regard
they had the Covid -19 example explained to them by the National Department of
Health as to how one can mobilise the private sector in a crisis and the example of
the Northern Cape province. The defence is not that the private sector could be of no
assistance or that it would definitely be to costly to provide any relief. I accept
implicitly that long term relief through outsourcing is beyond the GDoH’s means.
Non constat that short -term relief with ring -fenced funds are beyond the GDoH’s
means.

[158] Under the rubric “ Material Background ” the provincial health respondents
explains that it is doing all within its powers to render the necessary services.
Interestingly in this context it does not explain why it preferred a tender process to a
deviation process. Yet as we l earn from subsequent events it motivated a n expedited
process with success when it stood to lose R261miilion allocated for the following
fiscal year. The latter was not even ring -fenced funds whilst it did no t see its way
open to use a specie of deviation for such precious funds . We will ultimately see
what the facts were that GDoH used to motivate the use of Treasury Regulation
16A6.4 which were also at its disposal after the ring -fenced funds were obtained,
more particularly so given Mr Manning’s present ations as to how a deviation may be
obtained in a cris is situation. The GDoH was de facto in April 2023 facing a crisis
fraught with the risk of loss of life of the patients on the backlog list it updated by
itself after the Alliance caused a backlog list to be prepared in 2022.

[159] It continued outsourcing the services by advertising a tender. The purpose
was to appoint service provider(s) based and operating in Gauteng to provide a
short -term contract for the provisioning of radiation oncology services for 1 year to
alleviate the breast and prostate cancer backlog lists. I am far from persuaded that a
tender process would ever achieve this given the fact that all the indic ations were
that same is cumbersome and Mr Manning ’s proposed specie of deviation was
available to them. All they need ed was for Gauteng Treasury to do what it undertook
to do and for Mr Malotana to approve same.

[160] When one scrutinises the tender information the following becomes obvious:

161.1 The tender comprised the 3 categories already referred to above.
There w ere only 3 bidders . The validity of the tender was for a period of 90
days commencing 4 November 2023 until 1 February 2024. The period was
extended for 90 days from 2 February 2024 until 1 May 2024.

161.2 The evaluation of the bids was done in accordanc e with the
requirements of the Preferential Procurement Policy Framework Act, 5of 2000
(PPPFA), Preferential Procurement Regulations, 2022 (Regulations) and the
Department's Preferential Procurement Policy 2022 (Policy) in the following
stages :

161.2.1 Stage 1A: Mandatory Administrative Compliance
Evaluation;
161.2.2 Stage 1 B: Functionality Evaluation;
161.2.3 Stage 1 C: Site Visit Evaluation;

161.3 Stage 2: Price and Preference Point Evaluation.

[161] The bids were evaluated according to the 90/10 preference point system,
which is applicable to bids in excess of a rand value of R50 million (all applicable
taxes included), where a maximum of 90 points will be allocated for price and
maximum of 1 0 for spec ific goal in terms of the requirements of the PPPFA, the
Regulations and the Policy .

[162] On 21 November 2023, the BE C meeting could not convene as one member
declare d interest and had to be replaced. On 1 0 January 2024, a BE C meeting,
Mandatory Administ rative Compliance evaluation was held at Health Central Office,
45 Commissioner Street, 2nd Floor Boardroom 2 . On 16 January 2024, a BE C
meeting, functionality evaluation, recommendation and price and preference
evaluation was held at the same location.

[163] The tender for the appointment of service providers was awarded to Siemens
for the outsourcing of radiation oncology services for the GDoH for 1 year. A letter of
award was signed with Siemens and monthly updates of planning commenced. The
radiation p lanning service for 2000 plans has been created for CMJAH. Billing w ould
be done monthly depending on how many plans Siemens does in a month.

[164] In respect of Category 2, one bid was received, however Category 2 was
cancelled during the evaluation phase of the tender as the bidder did not attach the
South African Oncology Consortium or ICON Certificates as requested from Terms
of Reference. Therefo re, the BEC resolved that it would recommend to the BAC that
Category 2 of the tender be cancelled and re -advertised, due to BSC specifi cations
including non -statutory requirements.

[165] One bid was also received for Category 1, and approved for awarding ,
pending pricing negotiations. However, the Department and the service provider
were unable to agree on pricing, as a result the tender was withdrawn . The omens
were there. The need for the use of a specie of deviation became pressing. Mr
Malotana did not intervene,

[166] Category 1 and 3 w ould also be re -advertised to capacitate the contract as to
award multiple service providers. This was the lame -duck remedy deployed to save
the ting -fenced funds.

[167] The overview of how the tender process played ou t demonstrates that same
is cumbersome and unsuitable for any urgent solut ion. The GDoH of course
studiously avoids telling the court why deviation was not preferred . Against this
backdrop t he deponent states that the Department h as taken all the necessary steps
to make sure that it provides radiation oncology to each person. That despite the
admission that it require d assistance with the backlog list for CMJAH and SBAH.

[168] In the balance of the answering affidavit the deponent addresses the founding
affidavit seriatim to the extent that he believed it requires a response.

[169] He maintains that the GDoH has taken all steps pos sible to deal with the
backlog of cancer patients at CMJAH and SBAH. He specifically accuses the
Alliance of wanting to interfere and run the department from outside. The motivation
for this statement is that the Alliance was aware of the tender and decide d to keep
quiet. How this is proof of such intent i s a mystery to me. The Alliance is accused
that it only reacted when the tender was awarded . The categories of the tender were
not awarded for the reasons stated and the deponent maintains that the GDoH
sought to comply with the Constitution and its policy at all times. Thus it is denied
that it did not do anything to deal with the backlog. The deponent seems to forget
that the criticism against the provincial health respondents is not only that they did
nothing but that they failed to react timeously. Where one’s actions are timed to
produce a result a year after funding is made available and one then still ends up
admitting that help is required at CMJAH and SBAH the statement by the Allian ce
that nothing was done is not all that outrageous.

[170] With regard to the Alliance’s assertions in paragraphs 23 and 23.1 of its
founding affidavit the deponent denies same. It maintains that R534millio n had
already been invested on oncology, medical and allied equipment such as cutting -
edge linear accelerator machines and the building of bunkers (allocated R217
million). All the machines (R534 million) were funded through a National Tertiary
Services Grant. The facts that come to the fore below when G DoH motivated a
deviation to avert losing the R261 million (as they did lose the R250 million ring -
fenced funds due to the obligation to return unspent funds to Treasury at the end of a
financial year) suggests that the R 261 million was not fully committe d to the
machines. We ultimately learn that a substantial amount of the R261 million is spent
on outsourcing to the private sector even if only on a short term basis.

[171] This points to another funding mechanism and because it is all under the
MTEF the items and services so funded will only become available over the defined
period of the MTEF. That in itself suggests that even though the other items and
services to be funded in this way may be important they will not materialise urgently.
The deponent repeats that R250 million was ring fenced for radiation oncology
outsourcing funded through the equitable share from Provincial Treasury in the
2023/24 financial year. The intention was that it be deployed in the financial year and
if the background and ext ent of the crises is borne in mind the only rational way to
obtain quick results seems to me the use of deviation as a way of procurement as
suggested by the Alliance.

[172] The GDoH is of the view t hat it has not done nothing to deal with the backlog
as portrayed by the Alliance in the paragraphs it responds to. The deponent also
makes it clear that the backlog list is updated daily on site at CMJAH and SBAH. I
will return to the latter later given the reliance on rights of pr ivacy and POPI A as
defences in the GDoH’s refusal to make same available to the Alliance. They have
updated it in 2023 in the way the Alliance did it in 2022 when given access to such
data at CJMAH so why not do so again in the way done before. The GDoH o f
course studiously avoids setting out the updating procedures followed. I am not
persuaded that same is updated using a methodology that permits some form of
prioritisation in favour of the patients on the backlog list as it existed after the
GDOH’s upda ting of the Alliance’s 2022 list. The aforesaid should include a
procedure permitting the backlog list patient to be contacted and told he/she can now
be prioritised. With this I do not suggest that a properly qualified person will always
be bound to prior itise. Such person must be able to do so when circumstances
permit.

[173] The deponent states that the to date four (4) Linac machines have been
procured. Two for CHBAH and two for DGMAH. The four Linac machines will be
commissioned and will be operation al, once the four (4) bunkers have been
constructed. The Turnkey project to construct the bunkers at CHBAH and DGMAH
are envisioned to be completed at the end of 2024. Whether the “rescued” R261
million for the outsourcing will still be the source of payme nt after the outsourcing is
implemented or how same will be paid for remains unclear.

[174] The deponent also emphasises th at a tender for 1 Brachytherapy machine for
SBAH is advertised with a closing date of 26 May 2023 and the evaluation process
has commenced. The Department has further completed specifications for one 1
Linac machine for CMJAH. Truly a pitiful response given the prevailing and admitted
problem s at the two hospitals und er discussion.

[175] It seems to miss the point that the Alliance seeks to make i.e. that it expected
that the GDoH would act with a degree of urgency to outsource the provision of
radiation oncology services so as to provide such an outsourced service by August
2023. To the extent that the Alliance alleges that nothing was done its affidavit may
well overstate its case. As far as the expectation was that outsourcing would take
effect by August 2023 I have already pointed out that in my view there was no
agreement in place given the obvious indications in the minutes of the Task Team
on the part of the various participants in the employ of the GDoH that a deviation
would have to be motivated properly and the fact that the terminology utilised pointed
to a tender process being preferred.

[176] The GdoH does not address the failure to obtain a deviation as a specie of
procurement and why it was not adopted. All it states is that it did not have a
deadline and was duty bound to follow the processes it set o ut in its affidavit. It finds
the assertion that the Alliance makes in paragraph 60 of the founding affidavit to the
effect that a tender process is not su itable given the urgent need of the patients on
the backlog list, strange and states as follows:

“Who get to decide whether the tender process is not suitable. This is a typical
example of trying to control the government from outside.”

One can but won der what underpins the theme of interference – is it perhaps the
bureaucrat’s desire to be the master of the decision making process ?. Am I to infer
from this that the victim saddled with a life threatening disease is from a
Constitutional point of view n ot entitled to some say or even endowed with a right to
seek accountability?

[177] It also reiterates that it is bound to adhere to and comply with its internal
procurement policies, treasury regulations and section 217 of the Constitution. Its
failure t o comply with sections 7(2), 27, 33 or 195 of the Constitution does not even
enjoy a mention.

[178] I specifically have in mind the following failures with regard to section 195

“195 Basic values and principles governing public administration

(1) Public administration must be governed by the democratic values and
principles enshrined in the Constitution, including the following principles:
…
(b) Efficient, economic and effective use of resources must be promoted .
…..
(e) People's needs must be responded to, and the public must be
encouraged to participate in policy -making.
….
(g) Trans parency must be fostered by providing the public with timely,
accessible and accurate information.”

[179] The inclusion of various parties in the exercise of the functions of the Task
Team which seems to have terminated in 2023 is a demonstration of com pliance
with the above Constitutional principles. The attitude displayed after Ms Meyer’s term
expired and the refusal to answer correspondence and the notion expressed in
paragraph 17 7 above is indicative of a diametrically opposed approach to what the
quoted part of section 195 requires.

[180] It merely notes the Alliances assertions in paragraphs 61 and 62 of the
founding affidavit. Strictly interpreted this not a denial of the undertakings the
Alliance contend for – even though I do not believe that the underlying minutes of the
meeting of th e Task Ream supports the Alliance’s conclusion concerning an
agreement to utilise deviation.

[181] The close st to a denial is the statement that the GDoH had no deadline. It
seeks to explain its failure to meet the supposed deadline by simply stating that it did
not obtain a deviation. The response to these paragraphs speaks of a n absolute
disregard of the part s of Section 195 I referred to. The GDoH certainly does not
come across as a model of Constitutional complianc e but rather as a n obstinate
bureaucracy clinging to its established ways. This is even more so in view of what
later transpires whilst it could easily have explained its failure to obtain a deviation .

[182] The deponent’s response to paragraphs 87 – 92 of the Alliance’s founding
Affidavit is a denial as a whole and the defence that it is proceeding with a tender
that will elevate the issue to di agnosing and treating patients is to say the least ,
pathetic. Given the state of the long -standing prevailing crisis one would have
expected a rational explanation for not adopting the deviation process as a method
of procurement.

[183] The deponent now d eals with the medical history of Ms es “V” and “W”. All the
patients’ including Ms “X” medical histories as recorded by GDoH was utilised by the
deponent to the provincial health respondent’s answering affidavits. The Alliance
argued that same should be struck out. I have come to a different conclusion and will
state my reasons for this lo wer down in the judgment.

[184] It denies the whole of paragraph 94 which sets out the medical situation of Ms
“V” as referred to above. The factual disputes as to when her condition arose are
immaterial. The deponent relies on Ms “ V”’s medical records a s taken from the
GDoH’s records (possibly excluding the treatment she received at Helen Josephs
Hospital) which reflect the following:

[185] She “was initially diagnosed: on 03/09/2021 (cT4dN0M0). Post neoadjuvant
chemotherapy: completed September 2020. P ost WLE and ALND (May 2021 ): size
of tumour 4cm, grade 2 IDC NST, margins negative, 1/2 nodes positive, ER+ PR+
(ypT2N1 Mo). Initial consultation in radiation oncology (Area 348): 01/09/2021 . Put
on waiting list for radiotherapy. Developed recurrence in September 2021, post
chemotherapy and then surgery (May 2022). For expedited radiotherapy. Planning
CT ( Computed Tomography ) (my insertion) : 23/08/2022 Volumes contoured:
30/08/2022 Whilst awaiting radiotherapy planning patient developed local recurrence
along scar and contralateral left breast lesion confirming malignancy. Restaging C T
confirmed lung metastases. The patient was referred to medical oncology for
palliative chemotherapy ”

[186] Leaving aside the medical jargon , which the GDoH could easily have
explained if it wanted to be helpful , the following is clear with minimal help of a
dictionary: She was put on chemotherapy pre-operatively which was completed in
September 2020. A fter a wide local excision (WLE) and axill ary lymph node
dissection (ALND) in May 2021 she was placed on a waiting list for radiotherapy. No
administration of radiotherapy is recorded prior to her developing a recurrence of the
tumour. She developed a recurrence in September 2021 and post chemothe rapy
and surgery in May 2022 she was referred for expedited radiotherapy . Whilst
awaiting radiotherapy planning she developed a local recurrence along the scar and
contralateral left breast lesion confirming malignancy. A restaged CT confirmed lung
metasta ses. She was then referred to medical oncology for palliative chemotherapy.
The record of this patient as supplied of course makes no sense – although
supposedly initially diagnosed on 3 September 2021 she already completed a course
of chemotherapy in Sep tember 2020.

[187] Be that as it may the easily comprehended takeaway is that she never
received the recommended radiotherapy. To the extent that the above contradicts
the version of Ms “ V” I accept the above. ( See also Ms “V”’ s own affidavit “ SJM20 ”).
It is important to note that the additional information given over and above what she
and the Alliance has already disclosed, is minimal.

[188] The description of Ms “W” disease and treatment in the founding affidavit was
also denied.

[189] The GDoH official medical record reflects the following about Ms “W ”.

[190] She “was initially diagnosed: 04/02/2022 (T3N2Mo). Post neoadjuvant
chemotherapy: completed September 202 2. Post TM and ALND (November 2022):
size of tumour 24mm, grade 2 NST, margins negative, 3/4 nodes positive with ENE,
ER+ PR+ Her2 - (ypT2N1Mo). Initial consultation in radiation oncology (Area 348):
22/2/2023. Put on waiting list for radiotherapy. Develop ed axillary recurrence in May
2023, post chemotherapy and then surgery (September 2023): 4/9 nodes positive
with ENE. For expedited radiotherapy. Planning CT: 30/1 . Volumes contoured:
10/01/2024 Planning complete: not documented . Plan approved by oncologist:
31/05/2024 Physics approval: 09/05/2024 . Radiotherapy: 18/06/2024 - 08/07/2024:
tolerated well. Patient put on surveillance to be seen in 6/52.” (the date is an obvious
error) (See also Ms “W”’s own affidavit “ SJM21 ”)

[191] Once again with a little assistance from a dictionary (in the absence of a
proper explanation from GDoH ) the following is clear: Ms “W” was initially diagnosed
on 4 February 2022. P re-operati ve chemotherapy was completed in September
2022 . The tumor has metastasized . She had her left breast removed and lymph
nodes were removed from her armpit. (Cf her own affidavit) She had an initi al
consultation in radiation oncology on 22 February 2023 and was put on the waiting
list for radiotherapy. No radiotherapy is recorded and she developed a recurrence
under her armpit. Thereafter she was referred for expedited radiotherapy / P lanning
CT and contouring was done and planning completed but not documented. The plan
was approved by an oncologist o n 31 May 2024 a nd a p hysics approval was
obtained on 8 May 2024. She received radiotherapy in the period 18 June 2024 to 8
July 2024 which was well tol erated. She was put om surveillance to be seen in June
2025.

[192] I accept the correctness of her record as presented by GDoH. This does not
mean thar Ms “W”s affidavit is necessarily wrong. In layman’s terminology her story
broadly confirms the positi on. Of interest is that she did receive radiotherapy whilst
on the backlog list but a t a late stage. Again minimal new information is disclosed.

[193] The version put up by Ms “X” is also denied by the GDoH. According to the
deponent of the provincial health respondents answering affidavit the GDoH record
reflects the following .

[194] She was “ initially diagnosed: 20/6/2018. Post neoadjuvant chemotherapy
(AC/T): completed January 2019. Post WLE and ALND (March 2019): size of tumour
4cm, grade 2 IDC, margins negative, 6/8 nodes positive, ER+ PR+ Her2 3+
(ypT2N2Mo). Initial consultation in radiation oncology 2 7/8/2019. Put on waiting list
for radiotherapy. Developed recurrence November 2020, post total mastectomy
11/12/2020. For expedited radiotherapy due to recurrence. Planning CT: 25/02/2021
Volumes contoured: 08/03/2021. Planning complete: not documented. Pl an
approved by oncologist: 13/07/2021. Physics approval: 23/07/2021. Delay in starting
radiotherapy as patient was on chemotherapy due to recurrence. Radiotherapy:
29/09/2021 - 19/10/2021: tolerated well. Patient put on surveillance seen 3 -6
monthly, noted to be well, surveillance mammograms normal. Last seen De cember
2023 ,”

[195] In the aforesaid case the delay in radiotherapy is obvious and requires no
discussion. There is no major discrepancy between the above and Ms “X”s version.
See “ SJM22 ”. Again ver y little new information is supplied.

[196] The GDoH also denies the version put up by Ms “Y”. That despite the fact
that it has no records of this patient. She first visited CMJAH in July 2022 requesting
radiation oncology treatment. She was then told that they were still treating patients
from 2018. Although she went to great expense to obtain treatment in the private
sector she became a patient receiving chemotherapy at CMJAH in January 2024
Nevertheless they have no record of her. She will have to obtain radiation oncology
treatment again and fears that she may not receive same in a timely manner. There
is no reason to doubt her story as set out in Annexure “ SJM23 ” Her evidence
suggests that the updating of the backlog list as referred to by the GDoH is not
ongoing or is as a minimum unreliable .

[197] The denial by the GDoH of the content of paragraph 100 of the founding
affidavit coupled with the notion that an a nswer has been found to the problems
surrounding the backlog list and that by implication same explains the Alliance’s
experience of no further engagement by the GDoH is far from satisfactory given its
failure to comply with th e component s of section 195 o f the Constitution already
referred to.

[198] Whilst I cannot fault the GDoH for the use of the R534million (given the
source of the grant and that it play s our during the MTEF period) the failure to
produce a significant impact with the R250 million and the absence of an explanation
to make use of a deviation and the allegation that the Alliance seeks to control the
department from the outside suggests that something is amiss.

[199] I will address the requirements for the relief sought lower down.

The Rule 35(12) Notice

[200] The Alliance delivered a Rule 35(12) not ice to the provincial health
respondents to produce certain documentation under this Rule on 2 August 2024.
The documents sought comprise the following:

“1 The radiation oncology backlog lists as referred to in paragraph 21 of the
answering affidavit. Th ese lists may be redacted to preserve any personal
information.

2. The re -advertised tender for Category 2 for the provision of radiation
oncology services, which is referred to in para 23 of the answering affidavit.

3. The re -advertised tender for Categ ory 3 for the provision of radiation
oncology services, which is referred to in para 23 of the answering affidavit.

4. The "plans" referred to in paragraph 28.3 to ensure that the advertisement
should be completed before 15 July 2024.

5. The written contract was concluded with the Eleventh Respondent,
Siemens Healthcare pursuant to tender number GT/GDH/089/2023 .

6. Co py/copies of the internal or external advertisements that have been
issued for the recruitment of therapists at CMJAH and SBAH, as referred to in
para 28 of the answering affidavit.

7. Copies of documents that specify which radiation oncology services hav e
been outsourced and details of all the outsourcing that has been put on tender
as alleged in paras 27.1 and 32 of the answering affidavit.

8. Copy/copies of the evidence -based treatment guidelines developed by
CMJAH and SBAH oncology centres, as referre d to in para 66 of the
answering affidavit.

9. Copy of the employment contracts and/or appointment letters relating to:

9.1. the employment of radiation therapists, as advertised on DPSA
Circular 20 of 2024.

9.2. the employment of the radiation therapist sessional workers (Ref:
RT/01/CMJAH/2024), as referred to in para 67 of the answering
affidavit.

9.3. The allegations r elating to the employment of the radiation
therapists, as described in paragraphs 8.1 and 8.2 above, is dealt with
in para 67 of the answering affidavit.

10. Copy/copies of the resolution/ passed, minutes of relevant meetings
and/or any related documents that record the provincial health respondents'
decision to award the "remaining amount" of the R 250 million for utilisation in
Category 1 and Category 2 as alleged in para 32 of the answering affidavit.

11.The decision referred to in para 100 of the BEC to recommend to the
Chairperson of the BAC to award Category 3 of the tender to Siemens which
was approved on 28 February 2024.

12. Minutes of the BEC meeting held on 1 0 January 2024, as referred to in
para 112 of the answering affidavit.

13. Minutes of the BEC meeting held on 16 January 2024, as referred to in
para 111 of the answering affidavit.

14. The resolution passed by the for the appointment of Siemens Healthcare
to provide the "outsourcing of a radiati on oncology se rvice", as referred to in
para 113 of the answering affidavit”

[201] The Alliance filed a supplementary affidavit dealing with same on 6
September 2024 which I regard as admissible given that I am entitled to be updated
as to the response. Due to the nature of the GDoH’s response I will first deal with
item 8 i.e. the copy/copies of the evidence -based treatment guidelines developed by
CMJAH and SBAH oncology centres, as referred to in para 66 of the answering
affidavit.

[202] What was ulti mately produced under item 8 were overseas materials relied on
as Annexure “B”. I was provided with a hard copy of all the papers in the application
in lever arch files and the aforesaid appeared in bundle 3 commencing at Caselines
numbering 05 -100 and end ing in bundle 4 at Caselines numbering 05 -645. I perused
these documents which reflected the results of various people’s and institutions’
research efforts and guidelines in respect of radiotherapy treatment with regard to
prostate cancer and breast cancer (of different kinds including Phyllodes Tumors). In
the absence of any party proffering any expert evidence in support of same the
general conclusion to be drawn from these materials appear s to me to support the
views expressed by the GDoH in the answering affidavit . When I engaged the
Alliance’s counsel on these documents the particular counsel was unable to make
any sensible submission in this regard confessing that she read only a few page s of
these documents. Suffice it to s tate that as a consequence the Alliance case was not
improved by the failure to engage the provincial health respondents on the
aforesaid. The replying affidavit styled paragraph 66 of the answering affidavit as
hearsa y evidence and possibly subject to strike out. The fact that the documentation
was produced and supports the allegation made puts an end to this notion. It is
admissible with full disclosure of the sources due to the Rule 35(12) notice. Although
of an exp ert nature I am not prepared to ignore same.

[203] The information produced was not developed by the CMJAH or SBAH as far
as I could establish bu t seemed to support the notion of shorter radiotherapy cycles.

[204] The re -advertised tender for Category 2 and 3 for the provision of radiation
oncology services, which is referred to in para 23 of the answering affidavit was
produced. Due to its volume it was not annexed but tendered if needed. I did not
deem it necessar y to call for it.

[205] The GDoH failed to provide the balance of documents sought and in
particular:
failed to produce the following:

206.1 the radiation oncology backlog lists as referred to in para 21 of their
answer. They nevertheless persist with the allegation that the backlog lists are
being "updated daily on site at CMJAH and SBAH." They maintain that they
do not seek to violate the National Health Act and POPI A by producing copies
of th e backlog lists yet they fail to explain why they cannot provide an
appropriately redacted version which preserves the confidential nature of the
underlying information as had been requested ;

206.2 a copy of its decision to award the tender to Siemens Hea lthcare for
the provision of the tender for category 3 ;

206.3 copies of employment contracts and/or appointment letters relating
to the appointment of radiation therapists and/or radiation sessional workers ;

206.4 copies of documents that specify which r adiation oncology services
have been outsourced ;

206.5 copies of minutes and/or resolutions passed and/or relevant
documents record [ing] the provincial health respondents' decision to award
the "remaining amount of the R 250 million for utilisation in Cat egory 1 and
Category 2 as alleged in para 32 of the answering affidavit ;

206.6 a copy of documents and/or resolutions passed by the BEC to
recommend that the category 3 tender be awarded to Siemens Healthcare ;

206.7 copies of minutes and/or resolutions passed by the relevant BAC
and BEC meetings .

[206] The Alliance did not seek enforcement of those parts of the Rule 35(12) notice
that was not complied with but requested that I draw certain conclusions from the
said fa ilures. They later on request ed me to exact enfor cement ,

[207] The Alliance submit ted that the conclusions to be drawn are as follows: ·

`208.1 that the backlog lists have not been updated as alleged b y the health
respondents and/or there is no "updated" backlog list as alleged by the
provincial health respondents – I am of the view that it is improbable that no
list exists . I say this due to the facts that transpired regarding Ms es ”V,” ”W”,
and “X” . The facts pertaining to Ms “Y” suggested that an unreliable or
incomplete list exists. Significantly, they refuse to even produce a confidential
redacted version of the backlog lists. Whether any issue arises under the
National Health Act and /or the POPI A legislation will be dealt with below ;

208.2 the remaining documents and/or resolutions as requested by the
Alliance do not exist and/or are being deliberately withheld by the provincial
health respondents to obfuscate . The provincial health respondents cannot be
permitted to rely on the bald and unsubstantiated allegation in the answering
affidavit which have been deposed to by a deponent with no personal
knowledge ;

208.3 In the circumstances, at the hearing of Part A of this application, the
applicant will argue that this Court will be justified in drawing an adverse
inference against the provincial health respondents. It will be argued in
particular, that the provincial h ealth respondents' failure to fully comply with
the Rule 35(12) notice means that the re is no documentary evidence to
support the provincial health respondents version as stated in the relevant
paragraphs that rely on the requested documents ;

208.4 that i n line with applicable legal principles, the affected issues to
which the requested documents relate, fall to be determined by th e Court,
based on the applicant's version .

The Applicant’s Replying Affidavit

[208] Ms Meyers deposed to the Alliance’s replying affidavit and took issue with a
wide range of topics raised by the provincial health departments answering affidavit
deposed to by Mr Malotana

[209] She states that she has been advised that much of the answeri ng affidavit is
irrelevant, vexatious and/or irrelevant material. In the circumstances she deals with
same to the extent that it maybe necessary but subject to the Alliance’s right to
persist with an application to strike out the objectionable material.

[210] Such a strike out application was filed and sought to strike out the following
paragraphs as being irrelevant or hearsay: Paragraphs 21, 28, 60,66 and 67. A
second component of this application pertains to the use by the GDoH of the
confidential inf ormation of Mses “V”, “W” and “X” and specifically paragraphs 153
(153.1 -153.7), 154(154.1 – 154.11) and 156 (156.1 -156.12).

[211] The Alliance also s eeks to strike out the allegation paragraph 8 that “the
applicant seeks to run the administration of the Department though the Court”.

[212] Similarly it seeks to strike out the allegation that in paragraph 13 that the relief
sought “amount to interference with the operations of the Department”.

[213] The criticism in respect of paragraph 21 is that the deponent fails to set out
that he has personal knowledge of the method of preparation and updating of the
backlog lists at CMJAH and SBAH. No reasons are provided as to why confirmatory
affidavits could not be obtained. The Chief Executive Officers of both hospitals are
respondents in this application. These allegations are hearsay and fall to be struck
out. In my view this is the type of information that would typically be reported to the
deponent as hea d of the department and although he cannot account for its veracity
he would have had sight thereof (although he does not say so). It is contended that
he should have obtained supporting affidavits from people who could speak from
personal knowledge about this. Given the Alliance’s voluminous application and the
short period within which same had to be dealt with his failure to get such witnesses
to support him is understandable. I was thus not prepared to strike same out. The
issue of the POPI A defence as stated before will be dealt with later.

[214] The notion that the recruitment drive by t he GDoH for more staff as set out in
paragraph 28 would be hearsay evidence in the mouth of the deponent seems also
artificial to me. Given his position he would par excellence be knowledgeable about
this. He also annexed the applicable adve rtisements.

[215] The notion that the description of routine events as set out in paragraph 60 in
the answering affidavit of the GDoH which states that :

“The hospitals admitted patients referred to it by other institutions and/or who
come to hospitals directly . When admitting these patients they are fulfilling
their statutory duties”

is hearsay in the mouth of the deponent , is strange. Whilst he might not have the
knowledge of the when and where and who he possesses the general knowledge to
make such a statement .

[216] The issue in paragraph 66 of the answering affidavit is also part of the Rule
35(12) notice i.e.

“the Department has evidence -based treatment guide lines developed by the
two oncology centres of CMJAH and SBAH. Recent clinical data supports the
use of shorter radiotherapy schemes in the management of most cancers
including breast, prostate and rectum cancers. This has been included in
international pe er -reviewed guidelines and applied locally. Deviation from
treatment guideline may be required on occasion and clinical justification is
required in these cases. The department is currently in need of assistance to
reduce the current radiotherapy waiting times at both CJMAH and SBAH for
breast and prostate patients”.

[217] I accept that the deponent is not a doctor or oncologist or any kind of expert
who can validate the information as the truth but he could hardly be unaware of this
position and would in evitably have had to come across this notion in the discharge of
his duties. The last sentence he would undoubtedly have had personal knowledge of
in his cited capacity . I do not accept that this type of evidence falls in the category of
evidence he cannot speak of.

[218] The contents of paragraph 67 again deals with recruitment and
advertisements for radiation therapist sessional workers which are typically the type
of information I would expect the deponent as cited to know about. The same is
applicable as to how they will be deployed. I also accept that in the course of his
duties he will by now have learnt about the information and content appearing from
”LAM3 ”. I therefore am no t prepared to strike paragraphs 66 and 67 out.

[219] The striking out of the material in the possession of the GDoH regarding Mses
“V”, “W” and “X” as irrelevant and as utilised by the GDoH without their consent as
inadmissible given that same was unlawfully obtained requires some debate. I
analysed the info rmation in great detail above to compare same for discrepancies
and additional information. I concluded that the additional information disclosed by
the GDoH is minimal. The question is, however. whether the following provisions of
the National Health Act or POPIA were infringed.

The National Health Act 61 of 2003

[220] The relevant provisions of the National Health Act reads as follows:

14 Confidentiality

(1) All information concerning a user, including information relating to his or
her health status, treatment or stay in a health establishment, is confidential.

(2) Subject to section 15, no person may disclose any information
contemplated in subsection ( 1) unless -

(a) the user consents to that disclosure in writing;

(b) a court order or any law requires that disclosure; or

(c) non-disclosure of the information represents a serious threat to
public health.

15 Access to health records

(1) A health worker or any health care provider that has access to
the health records of a user may disclose such personal information to any
other person, health care provider or health establishment as is necessary for
any legitimate purpose within the ordinary co urse and scope of his or her
duties where such access or disclosure is in the interests of the user.

(2) For the purpose of this section, 'personal information' means personal
information as defined in section 1 of the Promotion of Access to
Information Act, 2000 ( Act 2 of 2000 ).”

[221] Section 17 of the National Health Act st ates as follows:

“17 Protection of health records

(1) The person in charge of a health establishment in possession of a
user's health records must set up control measures to prevent unauthorised
access to those records and to the storage facility in which, or system by
which, records are kept.

(2) Any person who -

(a) fails to perform a duty imposed on them in terms of subsection (1);
(b) falsifies any record by adding to or deleting or changing any information
contained in that record;
(c) creates, changes or destroys a record without authority to do so;
(d) fails to create or change a record when properly required to do so;
(e) provides false information with the intent that it be included in a record;
(f) without authority, copies any part of a record;
(g) without authority, connects the personal identification elements of a
user's record with any element of that record that concerns the user's
condition, treatment or history;
(h) gains unauthorised access to a record or record -keeping system,
including in tercepting information being transmitted from one person, or one
part of a record -keeping system, to another;
(i) without authority, connects any part of a computer or other electronic
system on which records are kept to -
(i) any other computer or othe r electronic system; or
(ii) any terminal or other installation connected to or forming part of
any other computer or other electronic system; or
(j) without authority, modifies or impairs the operation of -
(i) any part of the operating system of a c omputer or other electronic
system on which a user's records are kept; or
(ii) any part of the programme used to record, store, retrieve or
display information on a computer or other electronic system on which
a user's records are kept,
commits an offenc e and is liable on conviction to a fine or to imprisonment for
a period not exceeding one year or to both a fine and such imprisonment. ”

[222] In considering whether the GDoH i nfringed section 14 or 15 above one must
bear in mind that one of the objects o f the National Health Act is:

“ protecting, respecting, promoting and fulfilling the rights of -

(i) the people of South Africa to the progressive realisation of the
constitutional right of access to health care services, including
reproductive health care;

(ii) the people of South Africa to an environment that is not harmful to
their health or well -being;

(iii) children to basic nutrition and basic health care services contemplated in
section 28 (1) (c) of the Constitution; and

(iv) vulnerable groups such as women, children, older persons and persons
with disabilities ”

[223] The meaning of “pers onal information” in the Promotion of Access to
Information Act (“ PAIA ”) Act 2 of 2002 includes :

“information relating to an identifiable natural person, including, but not limited
to-

(a) information relating to the race, gender, sex, pregnancy, marital status,
national, ethnic or social origin, colour, sexual orientation, age, physical or
mental health, well -being, disability, religion, conscience, belief, culture,
language and birth of the person; ”

[224] I do not refer to the other meanings which prima facie do not apply.

[225] Based on the above the deponent on behalf of the provincial respondents
should prima facie have obtained the written consent of Mses “V”, “W” and “X”. The
provincial health respondents argue that the information was released in exercise
and defence of the ir right as the Alliance consulted with the individual concerned and
made allegations that were incorrect. They were thus defending themselves and
answering to averments made by the above individuals.

[226] It is also contended that when the above women re leased their personal
information and made it part of the litigation they waived their rights.

[227] The question arises of course whether the National Health Act read with PAIA
permits a waiver which is not in writing. The obvious answer is that the initial giving
of the information to the Alliance in the detail it was supplied under their own
signature constitutes the written consent and/or waiver. In addition the use of these
persons ’ records by the GDoH upon analysis demonstrated so little additional
information that it can hardly be said that any new information was disclosed. On
this reasoning the d ocuments would become virtually irrelevant given that hardly
any new information was disclosed. I have, however, accepted these records
because they purport to be the GDoH’s understanding of these patients medical
position and it supported the Alliance’s general approach to the case i.e. that the
failures of the GDoH lead to an extra burden on the public purse through the cost of
extra surgery which could have been prevented by applying timeous radiation
therapy.

[228] The illegality pleaded also refer red to the legislation discussed below.

[229] In dealing with the above I have taken into account that an infringement of a
persons rights of privacy or use of his confidential information may also constitute an
infringement of such person’s dignity.

Personal Protection of Information Act 14 of 2013 (“POPIA”)

[230] The POPIA defence pertains to the use of “personal information” as
defined therein.

230.1 The purpose of POPIA according to section 2 thereof is i.a. to:

“(a) give effect to the constitutional right to privacy by
safeguarding personal information when processed by a responsible party,
subject to justifiable limitations that are aimed at -

(i) balancing the right to privacy against other rights, particularly the
right of access to information; and

(ii) protecting important interests, including the f ree flow
of information within the Republic and across international borders;

(b) regulate the manner in which personal information may be processed,
by establishing conditions, in harmony with international standards, that
prescribe the minimum threshold requirements for the lawful processing
of personal information;

(c) provide persons with rights and remedies to protect their personal
information from processing that is not in accordance with this Act;
...”

230.2 It prescribes in section 4 conditions for the lawful processing of
personal information. Suffice it to state that the information disclosed by the
GDoH (a public body as defined) is within the definition of personal
information and special personal information and Mses “V”, “W”, “X” are data
subjects as defined in POPIA. The Alliance on the other hand would be a
“private body “ as defined. The same section refers to the prohibition of
processing of special personal information under Section 26 unless the
provisions of se ction 27 to section 33 are applicable. Only section 2 7 and
section 3 2 are applicable to the information under discussion. Section 26
imposes a prohibition on the processing of this kind of information subject to
section 27. “Processing” means i.a :

“… any operation or activity or any set of operations, whether or not by
automatic means, concerning personal information including -

(a) the collection, receipt, recording, organisation, collation, storage, updating
or modification, retrieval, alteration, consultation or use;

(b) dissemination by means of transmission, distribution or making available
in any other form”

230.3 Section 27 reads i.a. as follows:

27 General authorisation concerning special personal information

(1) The prohibition on p rocessing personal information, as referred to in
section 26, does not apply if the -

(a) processing is carried out with the consent of a data subject
referred to in section 26;

(b) processing is necessary for the establishment, exercise or defence
of a right or obligation in law;
…..
(d) processing is for historical, statistical or research purposes to the
extent that -

(i) the purpose serves a public interest and the processing i s
necessary for the purpose concerned; or

(ii) it appears to be impossible or would involve a
disproportionate effort to ask for consent,

and sufficient guarantees are provided for to ensure that the processing does
not adversely affect the individual p rivacy of the data subject to a
disproportionate extent;

(e) information has deliberately been made public by the data subject; or….”

230.4 Section 32 states i.a. that:

“32 Authorisation concerning data subject's health or sex life

(1) The prohibition on processing personal information concerning a data
subject's health or sex life, as referred to in section 26, does not apply to the
processing by -

(a) medical professional s, healthcare institutions or facilities or
social services, if such processing is necessary for the proper
treatment and care of the data subject, or for the administration of the
institution or professional practice concerned;
….
(2) In the cases referre d to under subsection (1), the information may only
be processed by responsible parties subject to an obligation of confidentiality
by virtue of office, employment, profession or legal provision, or established
by a written agreement between the responsibl e party and the data subject.

(3) A responsible party that is permitted to process information concerning
a data subject's health or sex life in terms of this section and is not subject to
an obligation of confidentiality by virtue of office, profession or legal provision,
must treat the information as confidential, unless the responsible party is
required by law or in connection with their duties to communicate
the information to other parties who are authorised to process
such information in accordance with subsection (1) .

(4) The prohibition on processing any of the categories
of personal information referred to in section 26, does not apply if it is
necessary to supplement the processing of personal information concerning a
data subject's health, as referred to under subsection (1) (a), with a view to
the proper treatment or care of the data subject. ”

230.5 It is of some importance to note that a “responsible party” is defined as:

“….a public or private body or any other person which, alone or in conjunction
with others, dete rmines the purpose of and means for
processing personal information ”

[231] On a careful reading of the above provisions I am satisfied that the GDoH ha s
a defence on at least one basis under POPIA to the Alliance’ s assertion that its use
of the above -mentioned people’s information was a breach of POPIA. Section
27(1)(b) would constitute a defence . I know t hey rely on waiver as well and accept
same as correct .

[232] It further seeks the strike out of the allegation in paragraph 14 that the relief
sought by the applicant “will tamper with the operations of the Department”.

[233] It also seeks a strike out of the allegations made in paragraphs 86 – and 87.2
that “it is clear that the applicant seeks to interfere with the lawful processes of the
Department and control it from outside” and “The application is a gaging order” ’

[234] It in addition it seeks the strike out of the contents of paragraphs 88, 161.5,
164.2, 165.2 and 165.4.

[235] The themes objected to in these paragraphs are time and again that the
Alliance is attempting to run the Department and control its processes from outside
and that the application by the Alliance is an abuse of the court process that may
result in t he Depa rtment being denied the ability .to discharge its constitutional
mandate to the benefit of the people of the Province.

[236] The provincial health respondents has by making such assertions
demonstrated a certain stance which is informative as to its compr ehension of
section 195 of the Constitution and its general stance on accountability to a
vulnerable component of society.

[237] According to the provincial health respondents the acid test for strik e out is as
follows:

“……Two requirements must be met b efore a striking -out application can
succeed: (i) the matter sought to be struck out must be scandalous, vexatious
or irrelevant; and (ii) the court must be satisfied that if such a matter is not
struck out the party seeking such relief would be prejudice d.”2

[238] The Alliance at no stage alleges “prejudice”. I also cannot see how it is
prejudiced given the nature of the matter it sought to strike out. On the contrary the
GDoH’s approach to the Alliance and its constituency is helpful to its case.

[239] The strike out applicatio n thus falls to be dismissed.

[240] I now revert to the balance of the Replying Affidavit.

[241] It is alleged that the provincial health respondents did not take the court into
its confidence in respect of the progress made as to the reduction in the backlog list.
The GDoH did deal with this but in such a way that the Court is unable to establish
whether the ostensible reduced numbe rs are real. The information given with regard
to CMJAH suggests large numbers of patients are kept waiting whilst receiving
hormonal treatment to suppress testosterone to postpone the need for radiotherapy
treatment. No information is forthcoming regardin g the other forms of cancer such as
colorectal cancer

[242] No updated backlog list is provided. The fact that it is stated to be updated
daily at the hospitals raises concerns as to why a redacted version is not proffered. A
valid concern is raised i.e . that there could be a conflation of the backlog list with
those persons currently receiving treatment.

[243] Another concern raised is the omission of the value of the Category 3 tender
awarded to Siemens . The Alliance is not satisfied with the notion t hat the amount
involved is less than a quarter of the R250 million or that 200 plans were ordered at
a total cost of R17 480 000. The Alliance is concerned that there is no “cap”
disclosed on this. Subsequent developments cast more light on this.


2 See Helen Suzman Foundation v President of the Republic of South Africa and Others - 2015 (2) SA 1
(CC) para 27

[244] It is of the view that the high-water mark of the provincial health respondent's
opposition appears to be their allegation that the department

"has taken all possible steps to deal with backlog of cancer patients both at
CMJAH and SBAH”

[245] The Alliance is also concerned that the provincial health respondents
embarked on a tender to “alleviate the breast cancer and prostate cancer backlog ”
It makes the valid point that there are also patients with cervical cancer and
colorectal cancer and states that it raises this not to

“control the department from the outside "

as alleged, but to ensure that the Court holds the provincial health respondents to
account for thei r dilatory and nonchalant attitude towards providing radiation
oncology treatment to cancer patients on the backlog list.

[246] It objects to the use of hearsay evidence without explanation or compliance
with section 3(1)(c) of the Law of Evidence Amendment Act, 45 of 1988 ("the Act"). It
states that no case is made out that this Court should exercise its discretion and
admit the h earsay evidence. It seems to forget that the provincial health
respondents had to answer a 309 page application on short notice and could only file
late given the unrealistic time periods the Alliance set for the filing of the answering
affidavit and hear ing date of the matter. So much so that it ultimately had to be heard
as a special motion after intervention sought from the DJP. It is an urgent application
and I may allow in my discretion such evidence where the source is disclosed. In any
event most of the hearsay complaints were dealt with under the rubric of the Strike
Out Application.

[247] The Alliance denies the baseless allegations made as to the non -joinder of
the various parties already referred to and in particular find the notion that the p arties
in the private sector to whom outsourcing should take place “bizarre”. I have already
expressed my views in this regard.

[248] Unsurprisingly Ms Meyer reiterates parts of the founding affidavit such as
paragraph 53 read with Annexure “SJM7 ”. She states that it was against the
background of this outsourcing model that the applicant made submissions to the
provincial treasury to ring fence any future allocation of funding to address the
radiation oncology backlog.

[249] She accuses the provincial health respondents of failing to keep to their
undertaking and develop the outsourced model. Instead, it chose to issue a tender
for three categories of services. She points out that there is no evidence provided by
the provincia l health respondents that the award of the tender will result in cancer
patients who are on the backlog list receiving radiation oncology services urgently.

[250] She also states that to suggest, as the provincial health respondents do, that
it now falls to the applicant to identify and join the public and/or private health
facilities to the application is untenable.

[251] She similarly criticises the notion that the Task Team should have been joined
and submits it has no separate legal identity. She the refore contends that the
provincial health respondents are properly cited.

[252] She also states that awarding the tender for planning services was irrational
leaving the backlog cancer patients without the urgent radiation and oncology
services within the necessary timeframes. Time has proved her right.

[253] She reiterates that t he backlog list continues to grow and seeks this Court's
intervention to ensure that the re is some level of urgency from the provincial health
respondents to provide treatment to those patients who are on the backlog list. She
suggests that the Court can address the pace at which the provincial health
respondents are to act given the availabi lity of funding.

[254] She regards it as noteworthy that it is nowhere stated that the tender award to
Siemens is for services to cancer patients on the backlog list. She also makes the
obvious point that given the terms and scope of the tender awarded to Siemens it
could only function if the other categories of the tender was awarded and although
the point was made in the founding affidavit the provincial health respondents have
only responded with a bare denial. In the circumstances she regards this tend er
award as irrational.

[255] She also says that the provincial health respondents continue to be opaque
about what the planning service entails. Though the tender clearly stipulates that the
service is intended to be offsite/fully remote and would involv e no transfer of
hardware or software, it is said in the answering affidavit that Siemens has invested
in IT infrastructure on -site, which is completely contrary to the tender specifications.
Therefore the interdict preventing the dissipation of the R250 m illion is even more
urgent. Later developments discussed below suggest that it is already to late.

[256] She demonstrates that the time delays with the tender process is such that
even if the best efforts are used , it is improbable in the extreme that t he tender will
be completed and a service provider will start providing treatment by the end of the
year.

[257] Therefore she is of the view that there is no other remedy available to the
Alliance and persists in the assertion that the matter was and still is urge nt.

[258] The historical background demonstrates the radiation oncology crisis in the
province. Cancer patients who are on the backlog list are very sick, and without the
radiation oncolo gy treatment, their health continues to deteriorate.

[259] She also deals with the answering affidavit on an ad seriatim basis and largely
denies the content of such paragraphs where it is in conflict with the Alliance’s
version. She states that the court has the power to grant the orders sought and is
obligated to declare conduct unconstitutional and unlawful where it is found to be so.
She maintains that the courts are required to hold the executive accountable when
they fail to comply with a constituti onal obligation or act unlawfully and is of the view
that this is such a case.

[260] I do not deal with all the responses in the ad seriatim section given what has
been said and what is to come.

[261] Ms Meyer persists that there remains a compelling ne ed for the original
backlog list to be updated in order so that the Court can determine how many cancer
patients are on the backlog list and for how long they remain on the backlog list,
awaiting radiation oncology treatment. Significantly, the correct number of patients
that require treatment has to be determined by the provincial health respondents. In
the absence of an updated backlog list, the provincial health respondent s cannot say
that they are treating cancer patients who are on the backlog list.

[262] The advertisement of the tender was not shared with the Alliance and it
became aware when approached by the media for comment. This was somewhere
around October 20 23 but the Alliance was unaware of the fact that the tender was to
be broken down in 3 categories .

[263] The provincial health respondents have not seen fit to put up the terms of the
agreement with Siemens or provide any detail in that regard, and therefore the
Alliance simply does not know whether the purchase order is a once -off purchase
order, o r whether there may be subsequent purchase orders.

[264] The Alliance denies that the application is 10 months late. On the provincial
health respondents' own version, the tender for category 2 was withdrawn sometime
after 20 October 2023 (although the da te is not disclosed) and the award of category
1 was unsuccessful in price negotiations - which must have been some time after
January 2024 when the tenders were allegedly adjudicated (again the date is not
disclosed). Thus the date on which the tender was first advertised is entirely
irrelevant to the question of urgency.

[265] What is missing from the provincial health respondents' answer is when
outsourced radiation oncology services will, in fact, be provided to cancer patients
who are on the backlog list.

[266] The Alliance is also of the view that the application should not be struck for
lack of urgency. Ms Meyer also makes it clear that the relief sought is not
hypothetical. The cancer patients who are on the backlog list are people who are
sick and who are at risk of losing their lives. Their lived reality is not a figment of the
Alliance’s imagination. These cancer patients and their lived realities are being
reduced to insignificance. The provincial health respondents cannot, by sleight of
hand, downplay the fact that their failure to provide radiation oncology treatment
attracts serious consequences. Thus the Alliance urges the Court to ta ke the
provincial health respondents' conduct into account when it considers the issues of
urgency and costs.

[267] Ms Meyer is of the view that the provincial health respondents' appear
insensitive and dismissive of the actual harm that has been - and is being - suffered
by the cancer patients on the backlog list, to whom they owe (undisputed)
constitutional obligations.

[268] She states (correctly) that the Court is no closer to knowing what services are
to be rendered by the service providers who are to be appointed under categories 1
and 2 of the tender. The provincial health respondents are vague in their
explanation. The Alliance submits that the provincial health respondents ’ stance is
both deliberate and by design. The services to be rendered do eventually become
clearer as will become apparent below.

[269] Ms Meyer also points out that when the backlog of cancer patients at CJMAH
was compiled the consultant paid for by the Alliance repo rted to both Dr Ramiah, the
CMJAH Head of department and to the Alliance. As the compilation of the backlog
list was a clinical matter the consultant worked under the supervision of Dr Ramiah
to determine the scope of the project and how the backlog lists will be compiled and
categorized . For each of the specific cancer backlog lists the consultants associated
with breast, prostate, gynae and colon cancers were involved in the compilation of
these lists to ensure accuracy. These lists were submitted to the Head of
Department for verification before it was signed off as being the complete backlog list
CMJAH . It would appear that no objections were raised then as to privacy and
confidentiality or based on POPIA.

[270] Ms Meyer also seeks condonation for the late filing of the replying affidavit.
She explains the difficulties experienced in the process to persuade the provincial
health respondents’ to co -operate in obtaining an expedited hearing date and that
contact had to be made afresh with Mses “V”, “W ” and “X” to establish whether the
use of their medical information was after written consent was obtained. She
contends that the provincial health respondent’s suffered no prejudice due to same
being late and that the Alliance also granted the provincial health resp ondents an
indulgence. She submits that good cause exists and that the Court ought to
condone the late filing of this replying affidavit. The application concerns a matter of
significant constitutional importance, and the applicant has good prospects of
success.

[271] On a consideration of all the facts I condone the late filing of th e replying
affidavit.

[272] I have already referred to the filing of 2 supplementary affidavits which I also
condoned. More, however, was to come.

The Additional supplement ary affidavits filed from October 2024 onwards

[273] On 18 October 2024, the Alliance filed a further supplementary affidavit , the
purpose and background of which was the following . On 19 September 2024, a
media enquiry was sent to the communications department of the second
respondent by a journalist from The Sunday Times , Ms Gill Gifford . In this enquiry,
Ms Gifford enquires about the status of the tender advertised on 13 July 2024 .
Importantly, Ms Gifford enquire d whether the tender has been withdrawn and, if it
has, requests reasons for this decision . The media enquiry was forwarded to the
Alliance , who then enquired with the Provincial Health Respondents on the status of
the tende r. This media enquiry is attached as annexure “KM1”.

[274] On 6 October 2024, the Office of the Premier in Gauteng and the Gauteng
Department of Treasury took a decision to freeze all vacant posts and reduce the
overtime offered within the Gauteng Departm ent of Health . A copy of the Public
Servants Association Union’s statement, dated 6 October 2024, is attached as
annexure “KM2”.

[275] The supplementary affidavit was filed on behalf of the Alliance to place on
record the enquiry on the cancellation of th e tender advertised by the Provincial
Health Respondents on 13 July 2024 and the provincial health respondents’
response thereto, as well as the possible impact on the freezing of posts and the
provincial health respondents’ ability to fulfil their plans t o address the radiation
oncology backlog as set out in th eir answering affidavit.

[276] This affidavit proceeds to state as follows: On 8 October 2024, the Alliance
addressed a letter to the provincial health respondents in which it states that it has
received ‘media reports and requests’ for comment concerning the alleged
cancellation of the tender advertised by the second respondent on 13 July 2024 . The
Alliance explains that it finds such reports concerning given that t he provincial health
respondents have placed significant reliance on the tender in their defence to the
Alliance’s claims that the provincial health respondents have no plan to address the
backlog of patients awaiting radiation oncology services . Further the Alliance states
that without the tender it is less apparent how the provincial health respondents plan
to address the backlog for radiation oncology services in the province . To this effect
a copy of a letter annexure “KM3” was annexed.

[277] On 9 Octo ber 2024, the provincial health respondents’ legal representatives
acknowledged receipt of the Alliance ’s letter requesting that the Alliance provide
them with the media reports to enable their clients to furnish them with proper and
meaningful instruction s. A copy of this email is annexed as annexure “KM5”.

[278] The provincial health respondents ’ replied to the Alliance ’s email and stated
that they had requested the Alliance to provide them with the media reports referred
to in the said letter of 8 Octob er 2024, but that the Alliance had instead provided the
request for comment . The provincial health respondents again requested a copy of
the media reports by email, annexed as annexure “KM6”.

[279] To this the Alliance replied to the provincial health respondents , stating that
they had failed to respond to the query regarding the status of the tender . The
Alliance further asserts that the ir evasive responses suggest an attempt to withhold
the true facts from the Court and the public . Same is annexed as annexure “KM7”.

[280] On 16 October 2024, the provincial health respondents sent an email in which
they stated again that the Alliance had provided them with a media request for a
comment, rather than the media reports referred to in the letter dated 8 October
2024, and that the media reports were required in order to respond to the question of
whether the tender had been cancelled. Additionally, they allege that the A lliance’s
conduct constitutes a blatant attempt to tarnish their reputation . This email is
annexed as annexure “KM8”.

[281] The Alliance replied to the provincial health respondents , stating that it had
provided them with the media enquiries at hand and that, despite the time that had
passed, the y failed to provide the information that was entirely within their
knowledge . A copy of this letter is attached as “KM9”.

[282] On 18 October 2024, the provincial health respondents again refused to say
whether the tender has been cancelled . A copy of this email is attached as annexure
“KM10”.

[283] The provincial health respondents remained persistent in their refusal to say
whet her the tender has been cancelled.

[284] Under the rubric “freezing of vacant posts and reduced overtime” at the
Gauteng Department of Health, it is stated that the Alliance has also become aware
of the allegations circulating in the media that the Office of the Premier Gauteng and
the Gauteng Provincial Treasury had taken a decision to impose an immediate
freeze on all vacant posts and reduce overtime within the Gauteng Department of
Health. To this end, a copy of a City Press article detailing these all egations is
attached as “KM11”.

[285] The provincial health respondents , in its answering affidavit, stated that one of
the ways in which they plan to deal with the human constraints (which constitute one
of the impediments to its providing radiation oncology services at CMJAH and
SBAH) is to recruit 21 therapists at CMJAH an d one therapist at SBAH . Additionally,
they plan to offer overtime at CMJAH from 16h00 to 19h00, Monday to Friday.

[286] The Alliance expressed its concern that the immediate freezing of the vacant
posts may affect the second respondent’s plans to recruit staff and other overtime to
deal with the backlog of radiation oncology patients. In the circumstances, the said
attorney concludes t hat the provincial health respondents ’ refusal to confirm whether
the tender has been cancelled should cause the Court to draw a negative inference
and to assume that the tender has in fact been cancelled . In this regard, the
provincial health respondents are invited to place any contradictory evidence before
the Court, should such evidence exist. No such affidavit was filed.

[287] The Alliance also avers that the alleged freezing of the vacant posts and
reduction of overtime within the Gauteng Department of Health will make it even
more difficult for the provincial health respondents to respond to the radiation
oncology backlog . They were accordingly invited to take the Court into their
confidence and to explain how, in the face of the constraints imposed by the office of
the Premier and Provincial Treasury, they plan to provide radiation oncology services
at CMJAH and SBAH to address the backlog. This invitation was not accepted.
There is no explicit application for condonation in this supplementary affid avit but in
the circumstances of the case I also condone the filing thereof. The recalcitrance of
the GDoH to assist the Alliance is astonishing.

[288] The eve ning before the hearing of the matter, the Alliance , filed a further
supplementary affidavit deposed to by Ms Turner. The purpose of this affidavit was
to bring further relevant facts to the Court’s attention that had come to the Alliance ’s
attention between the close of the court file on 18 October 2024 and the hearing
date (the date the Court file closed is in dispute but of no consequence given the
unique facts of the case) . It was submitted that the facts are of particular importance
in that they demonstrate, at least, that the provincial health respon dents ha d not fully
taken the Court into their confidence despite the facts and documents set out below
being in their knowledge and under their control.

[289] It is alleged that these facts show that:

289.1 As of 15 October 2024, the GDoH has failed to spend any of the R511
million allocated to provide urgent services to cancer patients on the backlog
list and none of the allocated funds have been used. The GDoH has failed to
disclose this to the Court.

289.2 The GDoH, in its answering affidavit stated that it is “following the
normal tender process” in accordance with the constitutional statutory
procurement obligations and in line with its procurement policy . However, in
the last three weeks, the GDoH appeared to have abandoned the tender
process for C ategories 1 and 2 radiation and oncology professional services
(although it refuses to confirm whether or not this is the case) and, instead, in
response to the litigation and public pressure, GDoH appears to have opted to
outsource radiation oncology serv ices at SBAH . Notably, no such
arrangement has been concluded at CMJAH, even though two -thirds of the
cancer patients on the backlog list are at CMJAH . It is asserted that the
change of process is significant because it shows that GDoH has wasted
almost a year and a half by persisting with the tender process which has been
mired in delays (amongst other issues) and has ultimately not resulted in the
backlog cancer patients receiving lifesaving radiation oncology treatment,
despite the fact that the funds we re allocated specifically for that purpose.

289.3 It is submitted that it should be recalled that the Alliance proposed that
outsourcing be pursued as a viable treatment option from as far back as
February 2022 and that the ring -fenced R250 million alloca tion from Provincial
Treasury was specifically provided for the outsourcing of treatment for
patients on the backlog list . The Alliance has detailed this in the founding
affidavit and it is, hence, not repeated.

289.4 It is further said to be c oncer ning that GDoH provides one version to
the Court and an entirely different version in its public communications and a
different stance when it reported to the provincial legislature oversight
committees.

[290] It is alleged that these fac ts are important to the Court determining the
application and are set out in detail below.

[291] Under the rubric the GDoH’s responses to questions raised in Gauteng
Legislature, the following is alleged, i e that on 15 October 2024 the provincial health
respondents submitted written responses to questions raised in the Gauteng
Legislature in relation to radiation oncology services in the Province . A copy of the
GDoH’ s response to these questions is annexed to this affidavit as “LT1” (not so
marked) . I refer to Case lines 02 -816-817.

[292] This document the answer s the question posed as to the breakdown of the
patients, according to their different types of cancer, at the CMJAH, including breast,
prostate, lung, colorectal and other cancers . The CMJAH position is stated to be as
follows:

“gynae: 100 patients, GIT: 80 patients, breast: 497 patients, prostate: 1440
patients (on hormonal therapy but awaiting radiotherap y), lung: 0, other: 171.

[293] The similar breakdown with respect to the SBAH reads as follows:

“ gynae: 182, prostate: 41, breast: 56, GIT: 24, head and neck: 39, other: 16,
paediatric: 04.”

[294] This annexure also accounts for the long waiting li sts. The reasons provided
are as follows:

“historical delays due to Covi d-19 and the fire at the CMJAH that contributed
to the patient waiting list for all categories of patients; the first era of
loadshedding affected the functioning of the high -tech radiotherapy
equipment; overcrowding of patients from all over the country an d across
borders; historical inability to attract radiotherapists to public sector; Gauteng
oncology infrastructure needed expansion, hence Christ Hani Baragwaneth
Hospital and Dr George Mukhari Academic Hospital”

[295] Under the question what the effect of the delayed radiation treatment on the
survival chances of cancer patients are, the ultimate response is given in this
annexure under the conclusion which rather grimly states that:

“Based on these individually linked data and for the cancers we looke d at we
did not find that Cancer Waiting Time targets being met translate into
improved one -year survival . Patients may benefit psychologically from limited
waits, which encourage timely treatment, but one -year survival is not a useful
measure for evaluati ng trust performance with regards to cancer waiting time
targets, which are not currently stratified by stage or treatment type . As such,
the current composition of the data means target compliance needs further
evaluation before being used for the assessm ent of clinical outcomes.”

[296] This document also answers an important question i.e. “How many cancer
patients who were diagnosed as requiring radiotherapy have been removed from the
list since January 2021 as they have died or their disease has progres sed too far to
be treated by radiation? This question was answered as follows:

• The patients’ complete treatment and are removed from those awaiting
treatment list and new patients are seen and prescribed Radiation Therapy
daily. This is a dynamic process where old patients are treated, and new ones
enrolled.

• There are also different waiting ti mes for different diagnosis of cancer.

• Between 3000 and 3 700 patients have received Radiotherapy annually
between 2021 and 2024 at CMJAH.

• Please note that patients may have died from advanced disease and poor
prognosis and not from delay . The majori ty of patients present with advanced
disease where the treatment intent is palliative . Hence we implemented a see
and treat approach for palliative cases.


[297] Another question which was posed is: What amount in rands and cents was
spent of the R250 mil lion set aside last year specifically to treat cancer patients ?

• Charlotte Maxeke Academic Hospital or the Steve Biko Academic Hospital
has not spent any allocated funds.

[298] The failure to spend the full R250 million last year (2023), was explained as
follows:

• The outsourcing to private facilities needed to be re -advertised

[299] With regard to the question as to how much of the R250 million is available to
spend in this fiscal year the answer given is:

The money is not being used as yet because the tender is still being finalised.

[300] Under the question of how many cancer patients have received treatment so
far from the R250 million set aside last year and the R261 million set aside this year,
this was answered as follows:

• Patients have been treated internally and the above allocation has not
been used.

[301] The question what was being done to spend the full budget available to cut
the waiting list of cancer patients speedily and significantly, was answered as
follows, under the heading CMJAH:

• A tender has been completed to purchase two desperately n eeded two
compact linear accelerators to replace the two obsolete cobalt teletherapy
units at CMJAH to increase treatment capacity.

• The two LINAC machines will be included in NTSG demand plan for
2025/2026 financial year.

• PO for brachytherapy was issued, and we are in the process of
commissioning.

• Interviews were held for radiotherapists and approximately 10 new
radiotherapists are going to be appointed to join the radiotherapist team so
the current equipment can be used more efficiently.

• A prostate cancer Lose Dose radiation brachytherapy progra mme has
been started at Chris Hani Baragwaneth Hospital and treats about four
patients a month with prostate brachytherapy .

[302] In answer to the same question for SBAH the response was:

• The tender process is currently being finalised.

• The breast and prostate patients will be referred to successful bidder
facilities and oncologists.

[303] These responses were signed by Dr S Mankupane, Acting CD: Hospital
Services on 13 October 2024 and supported by Mr L A Malotana, HOD: Gauteng
Health, dated 2024/ 10/14, and approved by Ms N Nkomo -Ralehoko, MEC: Gauteng
Health, dated 15 October 2024.

[304] As can be seen the above demonstrates that little progress has been made.

[305] No answer was provided when asked how many patients on the backlog list
have been removed from the backlog list as a result of death or because their
disease had advanced too far to be treated by radiotherapy . It would seem, from this
response, that the provincial health respondents have not maintained or updated the
backlog list.

[306] It is surprising that the provincial health respondents did not refer to the award
of the tender for Category 3 to Siemens, the agreement concluded on 30 April 2024
and the purchase order issued in July 2024 . Throughout the answering affidavit in
these proceedings, the provincial health respondents referred to the award of this
portion of the tender as evidencing the steps that it has taken and that it is
implementing the plan.

[307] They also maintain, in the answer, that Siemens has begun performing its
duties and that they will make payments to Siemens as and when required . At the
very least, therefore, one would have expected the provincial health respo ndents to
respond to this question by saying that approximately RX has been paid to Siemens
or will be paid to Siemens in accordance with the contract and the purchase order for
the planning services Siemens is already allegedly providing to GDoH. The
provincial health respondents failed to mention this at all in responding to questions
in the provincial legislature.

[308] No explanation is provided as to how GDoH is managing to treat any of the
backlog list patients as well as new patients “ internally ”, given the dire shortage of
staff and equipment which, on the own version, gave rise to the backlog in the first
place.

[309] However, and notably, there is no mention of an outsourcing arrangement
with private facilities, for which the initial R250 milli on was specifically allocated and
ring-fenced . In contrast, their response to the same question in respect of SB AH is
that the tender is being finalised and that the referr al of patients to private facilities is
imminent.

[310] From these answers, it is said that it would appear that, as at 1 5 October
2024, the tender for outsourcing services was still underway . Of R500 million that
has been allocated for the treatment of b acklog list patients, none had been
allocated or spent for providing such treatment to patients . There have been no
public announcements as to the status of the tender and, as detailed in the Alliance ’s
further supplementary affidavit, the provincial healt h respondents refused to engage
with it and provide further information as to the status of the tender.

[311] In the initial answering affidavit, the GDoH maintained that the Alliance ’s
allegation that it has failed to utilise the funds so allocated : “are not based on facts
and are not supported by evidence ” (par 81).

[312] Given that the deponent to the answering affidavit, Mr Malotana, in his
capacity as the Head of Department: Gauteng Health, supported the response (as is
eviden t from the signature page at the end), it is alleged that it beggars belief that the
provincial health respondents can allege that there is no evidence to support the
allegation that they failed to utilise the funds.

[313] Under the rubric “ Media coverage about outsourcing radiation oncology
treatment ”, further new allegations surfaced. In response to the embarrassing
disclosures made in the provincial legislature, a number of newspaper reports have
emerged regarding GDoH allegedly “pumping millions” into cancer treatment in
Gauteng.

[314] On 18 October 2024, the deponent came across an article in the Pretoria
“REKORD ”, titled “ Department pumps millio ns into radiotherapy ” (“the article”) . The
article highlights the efforts made by GDoH in outsourcing radiation oncology
services to the private sector “to help with the backlog ”. A copy of this article is
annexed to the supplementary affidavit, supposedly annexure “LT2” , (again
unmarked) .

[315] .It reports that:

“Oncology patients will now have access to private resources as part of the
investment to help with the backlog.” It continues to state that the GDoH says
that “prostate and breas t cancer patients will be assessed at Steve Biko
Academic Hospital before being referred to private facilities as part of its R260
million plus investment into oncology services . This investment is aimed
specifically towards patients who require radiothera py. In a statement the
Department said it has outsourced radiotherapy services to private healthcare
providers for two years.
According to the GDoH, the main aim is to assist the most urgent cases, such
as prostate cancer patients, who can wait up to 300 d ays for radiotherapy,
and breast cancer patients, who can wait up to 120 days.”

[316] The same document, reports that “the service level agreement has been
finalised and treatments are expected to commence soon”.

[317] It also reports that:

“as part o f this intervention, the flow of patients between public and private
healthcare facilities has been carefully planned with the system designed to
ensure that patients are seamlessly managed”.

[318] It continues the report with :

“Prostate and breast canc er patients will be assessed at Charlotte Maxeke
Johannesburg Hospital and Steve Biko Academic Hospital before being
referred to private facilities for radiotherapy.”
The Department said this process will be subject to quality checks.
This will help to red uce waiting times to improve the overall quality checks for
oncology patients.
After the completion of the treatment, the patients will be referred back to the
public health system.”
The Provincial Health Department is also expanding its radiotherapy
infrastructure . Construction of additional radiotherapy centres is currently
under way at Chris Hani Baragwaneth and Dr George Mukhari Academic
Hospitals .
“New linear accelerator machines have also been acquired, existing
equipment contracts extended and radiotherapist recruited. ”

[319] The same extract reports as follows:

“‘The backlog in cancer treatment, especially radiotherapy, has been
exacerbated by an influx of patients from outside Gauteng resulting in long
waiting times . Currently, over 2600 patients are waiting for radiotherapy,
mostly being prostate and breast cancer patients’, the Department said.”

[320] This article, which seems to have been p ublished in one of the Caxton
newspapers, calls on anyone with further information on the story to send an email to
bennett@record.co.za or phone same at 083 625 4114.

[321] The deponent states that she has since become aware that the two SLA ’s
have been signed with the private healthcare facilities . This appears to contra dict
the provincial health respondents’ case in answer to the application, where they
maintain that a ten der process is required for outsourcing and is being run . It also
appeared to contradict the answers given by GDoH, which again reiterated the
tender process .

[322] As set out in the Alliance ’s supplementary affidavit, the provincial health
respondents refused to provide the Alliance with any meaningful response as to the
status of the tender . It, therefore, came as a surprise to the Alliance that the SLA ’s
have been concluded.

[323] The deponent further points out that these SLA ’s relate only to SBAH and not
to CMJAH . From her enquiries with stakeholders in the sector, no SLA ’s have been
similarly concluded to provide radiation oncology services to backlog list cancer
patients at CMJA H. Although the conclusion of the SLA ’s is a welcome development,
Ms Turner state s that the fact that the backlog list patients at CMJAH are not catered
for is a concern because the bulk of backlog cancer patients are awaiting treatment
at CMJAH.

[324] It is further asserted that the provincial health respondents ’ own version, at
paragraph 21 of the answering affidavit, also confirms this . The latter states that, as
of 10 June 2024, SBAH “ only had 455 patients on the waiting list ”, while CMJAH
“had 2562 patients on the waiting list ”.

[325] On 30 October 2024, a further article on the outsourcing of radiation oncology
services, titled “ Gauteng Health Department races to spend R511 million on
Outsourced Cancer Treatment ”, was published in an onlin e publication called
Gauteng News, which appears to be a government sponsored news agency . A copy
of same is annexed as annexure “L T3” (again unmark ed). In this article, the GDoH’s
spokesperson, Motalalale Modiba, is quoted as saying: “ The Department has
completed the process of outsourcing radiotherapy services to private health
providers ”.

325.1 This annexure seems to have been extracted from the following
internet link:“https://Gauteng.net/news/Gauteng -health -department -cancer -
treatment/# -text=in a ma jor push over the next two years”, reports under the
heading “Gauteng Health Department races to spend R511 million on
outsourced cancer treatment”, above a photograph of the name board of the
Charlotte Maxeke Johannesburg Academic Hospital (and apparently
published in the Sowetan Live) the following:

“Addressing Backlogs and Improving Access to Cancer Care in
Gauteng Through Private Partnerships”

325.2 It reports:

“In a major push to address the extensive cancer treatment backlog,
the Gauteng Health Department is moving swiftly to outsource
radiotherapy services, directing R260 million to private healthcare
providers over the next two years. This allocation comes as part of the
Gauteng Department of Health’s urgent strategy to spend a total of
R511 million aimed at alleviating cancer treatment delays for
thousands of patients.

325.3 Then under the heading, “2024 Global Threat Report” , which heading
seems to be incom plete,( and a further sub -logo styled “CrowdStrike”, with a
similar reference as the earlier https address,) the following is reported:

“Tackling backlogs in cancer treatment.
Gauteng Health spokesperson, Motalalale Modiba, highlighted that the
outsourcing initiatives specifically target critical cancer patients .
Currently, prostate cancer patients pay a daunting average wait of 300
days, while breast cancer patients wait around 120 days . The delay
has been of significant concern with over 2652 patients waiting for
essential radiation therapy across the province’s hospitals, including
Charlotte Maxeke Johannesburg Academic Hospital and Steve Biko
Academic Hospital . “The Departmen t has completed the process of
outsourcing radiotherapy services to private healthcare providers”.
Modiba said, noting that this arrangement is designed to ensure a
seamless transfer and management of patients between public and
private facilities . The fi nal service level agreement is nearing
completion with treatments expected to begin shortly.”

325.4 A continuation of the same report under the rubric “Overcoming Barriers
to Effective Cancer Care”, states that :

“The outsourcing move was prompted by a legislative inquiry revealing
that Gauteng Health failed to utilize R511 million earmarked for urgent
cancer cases since April last year. Health and Wellness MEC Nomantu
Nkomo -Ralehoko recently conceded this fact duri ng a response to the
Democratic Alliance in the Gauteng legislature, underscoring the
department’s challenges in managing budget allocations for critical
care.
To address these issues, the department has not only sought private
partnerships but has also up graded essential medical equipment and
bolstered human resources within oncology. The department’s
oncology centers are actively recruiting radiotherapists, aiming to fill 29
vacancies at Charlotte Maxeke Hospital , with several candidates
having already been interviewed.”

325.5 Under the rubric “Improving Cancer Treatment Acce ssibility in
Gauteng”, the following is said :

“The Gauteng Department of Health ’s commitment to reducing cancer
treatment waiting times is crucial for improvin g patient outcomes.
Modiba explained that the system for patient flow has been carefully
structured to avoid unnecessary delays, ensuring effective
management across public and private facilities.
In the past, Gauteng’s health system has faced significan t challenges,
from underspending to issues in patient safety and attacks on
ambulance crews . This proactive step toward outsourcing cancer
treatment demonstrates a shift towards addressing these long -standing
problems with more urgency ”

325.6 The take hom e message from the above is clear: the outsourcing is not
taking place yet.

[326] Ms Turner’s comment on this is that the GDoH’s spokesperson’s statement
appears to be inconsistent in the responses given by GDoH addressed above . It is
further notable that no reference is made to the conclusion of the tender process or
whether the process was cancelled or not . It also appears to be misleading since the
process is now here near completion – no SLA ’s have been concluded with CMJAH,
where the majority of the backlog patients are awaiting treatment.

[327] GDoH further states in the article that it is actively recruiting radiotherapists
aiming to fill 29 vacancies at CMJAH “with several candidates havi ng already been
interviewed ”. This statement is also contrary to information made public by GDoH
about the freezing of posts . The Alliance has dealt with same in its supplementary
affidavit, filed in Court on 18 October 2024.

[328] Under the rubric “ GDoH presentation to Gauteng Legislature ”, in the
supplementary affidavit the following assertions are made:

328.1 On 14 November 2024, the provincial health respondents appeared
before the Gauteng Legislature for purposes of providing a n update on
oncology services in the province . Cancer stakeholders were invited to the
meeting and the deponent attended on behalf of the Alliance , and a copy of
the presentation that was delivered at the meeting was annexed as annexure
“LT4” (again unmarked) .

328.2 GDoH reported that it signed SLA’s with private sector partners and
that the duration of the agreement is two years . The budget of thi s agreement
is R260 million . No indication was given as to whether these SLA ’s were the
outcome of the tender process that the provincial health respondents have
relied upon so heavily in the answering affidavit . However, it was confirmed
during a meeting that the SLA ’s have been signed only in relation to treating
backlog cancer patients at SBAH and not those awaiting radiation oncology
treatment at CMJAH. The Chief Executive Officer of CMJAH, Ms Gladys
Bogoshi, who was also present at the meeting, stated that she had received
the service level agreements from GDoH for her signature but she had yet to
sign the agreement . She further stated that, even if she were to sign the
agreement soon, it would take approximately a year to work out the logistics
to refe r patients to the private sector. The deponent was present at the
meeting and when these statements were made.

328.3 At slides 6 and 7 of the presentation, GDoH provided the flowchart on
the patient flow design . This flowchart was meant to indicate the p ath walked
by a patient in an outsourcing arrangement with the private sector . However, it
is notable that the presentation fails to stipulate exactly which patients will be
referred to outsource radiation oncology treatment . In the flowchart for
CMJAH, it is indicated that “ CMJAH consults oncologists ” with an added note
“see’s patients for the first [time] and assess patient and refer to private
doctor ”.

328.4 It appears from a reading of the flowcharts that CMJAH intends to
outsource services for new patients who are consulting with an oncologist “ for
the first [time]”. This means that cancer patients who are on the backlog list
will not be referred for outsour ced radiation oncology treatment (or so the
deponent concludes) .

[329] The deponent states that t he use of the allocated funds to treat new patients
in the private sector would be going against the reasons for the allocations of
funding . These funds were allocated by provincial treasury for the urgent treatment
of cancer patients on the backlog list . Without sufficient machinery, staff and a freeze
on filling p osts, it is hard to imagine how the provincial health respondents plan to
provide radiation oncol ogy treatment to the backlog cancer patients at CMJAH if
these patients are excluded from the outsourcing arrangement.

[330] When the Alliance motivated t o Gauteng Treasury for the ring -fencing of
funds, the Alliance did so specifically for the radiation oncology treatment of patients
who have been awaiting treatment for 18 months to 3 years – patients on the
backlog list . In response to the Alliance ’s plea, Gauteng Treasury allocated R78 5
million for GDoH to urgently address the backlog . The bulk of the backlog of cancer
patients is said to be at CMJAH . It is crucial that any outsourcing efforts, while
welcome at SBAH, are also replicated at CMJAH to treat patients on the backlog list.

[331] In conclusion, it has bee n stated that the above reports show major
inconsistencies and even contradictions in the versions produced by GDoH and
those provided to the Court and to the Legislat ive oversight committees . It is also
clear that the provincial health respondents continu e to withhold relevant information
in their possession from the Court.

[332] The provincial health respondents are, ther efore, called upon to furnish
relevant information to the Court on affidavit :

332.1 In relation to SBAH: Whether an outsourcing arrangement has been
concluded in relation to SBAH ?

332.1.1 if so, whether the outsourcing arrangement is for cancer
patients on the backlog list;

332.1.2 to furnish relevant supporting documents, including (if
necessary an appropriately redacted version of the SLA concluded;

332.2 In relation to CMJAH:

332.2 .1 if and when an outsourcing arrangement for CMJAH will be
concluded;

332.2.2 if so, whether the outsourcing arrangement is for cancer
patients on the backlog list; and

332.2.3 to furnish relevant documents

332.3 In relation to the Category 3 planning services contract awarded to
Siemens:

332.3.1 How much of the R250 million has already been spent on the
Category 3 planning services ?

332.3.2 How much of this was for planning for cancer patients on the
backlog list and how much was spent on new cancer patients ?

[333] It is submitted that, in order for the Court to make a just and equitable order,
the Alliance has placed the above further facts before the Court, even though these
facts are peculiarly within the knowledge of the provincial health respondents and
one would have expected them to disclose same to the Court in compliance with its
section 195 obligations , particularly those in relation to openness, transparency and
accountability. The provincial health respondents have failed to do so, in keeping
with the tactic discernible throughout the litigation of withholding relevant facts and
documents from the Alliance and the Court .

[334] The Alliance, therefore, submit s that the relevant information must be
furnished by the provincial health respondents and, if necessary, the Court ought to
compel them to do so.

[335] I was quite surprised to receive this supplementary affidavit by email through
the Caselines system the evening before the matter was to be argued and raised th is
issue during the hearing the next day . I was of the view that the provincial health
respondents would be entitled to answer this affidavit and pursuant hereto an
agreement was reached that the day would be spent on the existing papers filed and
that supplementary papers would be filed by the provincial health respondents by 28
November 2024 and the Alliance would reply thereto by 6 December 2024 . This
arrangement was made subject to their right to object and I did not allow the content
of this affidavit to be debated at the hearing.

[336] Arrangements were also made for the filing of supplementary heads of
argument. The a foresaid was the best pr actical arrangement that could be entered
into.

[337] The overall effect of the Alliance’s supplementary affidavit read in isolation is
in many ways are such, that it ostensibly undermines the provincial health
respondents defences. It certainly calls on them to explain the questions that arise.
Some of these questions were already in my mind when I read Mr M alotana’s
original answering affidavit.

[338] As per arrangement made during the court proceedings on 21 November
2024, a further affidavit, dealing with the new matter placed before the Court, was
filed by the First, Second, Seventh and Eighth Respondents . I should mention that
having made the aforesaid arrangements, they were all subject to the fundamental
objection that no further affidavits should be permitted and I would have to make
some ruling thereon after considering all the material placed in front of me.

The Provincial Health Respondent’s Answering Affidavit .

[339] The Provincial Health Respondents’ further supplementary affidavit dealing
with the supplementary affidavit of the Alliance of Ms Turner, was deposed to by Mr
Malotana, who deposed to his affidavit in his capacity as the Head of Department in
the Gauteng Department of Health, and also by v irtue of his position as accounting
officer of the Department . Due to these aforesaid positions, he has the knowledge to
speak about the matters arising in the litigation, as well as the supplementary
affidavit of 20 November 2024, and is also duly authori sed to speak thereto . He was
of course also the spokesperson in the original answering affidavit and knows the
background intimately

[340] The supplementary answering deposed to by Mr Malotana is duly supported
by Dr Majake -Mogoba the CEO of the SBAH and Dr Bogoshi the CEO of CMJAH .
The latter two affidavits are drawn in such a way that it confirms the original
answering affidavit filed by Mr Malotana on behalf of the provincial health
respondents as well. In so doing some of the alleged hearsay allegatio ns made by
the GDoH are also addressed.

[341] The most important aspect that transpires from this affidavit is that the budget
was actually not spent and effectively, if one has regard to the report to the Gauteng
Legislature, a lot remains to be done an d little progress seems to have been made .
The latter was already evident after the original answering affidavit was filed .
Although the position seems to have improved at the SBAH, the CMJAH still suffers
from a major backlog and this has to be addressed. In addition the R250 million ring-
fenced funds have been forfeited to treasury being unspent.

[342] Mr Malotana makes it clear that the affidavit of 20 November 2024 is the third
supplementary affidavit that the applicant has filed without leave of the Court and
without any application to the Court for such leave . He states that the respondents
(presumab ly those he speaks for) object to the filing of the supplementary affidavits
without an application for leave to do so. H e requests that the supplementary
affidavits should be disallowed . He regards them as highly prejudicial to the
respondents who could n ot respond to them, especially the first two supplementary
affidavits, as no leave of the Court was sought and granted. The filing of the latter
affidavits have been condoned during the hearing in court and if any of those
affidavits already condoned requ ired some response he could have tendered same
and respond in the present answering affidavit . The GDoH could even have filed
answers to same on a conditional basis . It should have been clear to Mr Malotana
and his legal team that given that the case invol ves what he regards as a complex
tender (given that the risk of loss of ring -fenced funds existed and a readvertisement
of Categor ies 1 and 2 of the original tender was required, that follow -up affidavit (s)
would be inevitable to explain the ultimate outcomes . Once it knew that the ring -
fenced funds were lost i t should have told the Court about it of his own accord and
his legal team should have advised accordingly. .

[343] In as much as the objection rests on the notion that Ms Turner’s affidavit
raises new matters not foreshadowed in the founding affidavit, it is simply incorrect.
Every issue traversed in the founding affidavit such as the backlog list and including
the ring -fenced funds, the tenders and the failure to use a n expedited process such
as deviation under Treasury Regulation 16A6.4 or to act in an urgent fashion given
the crises, are relevant and will remain so till all relevant information about same, is
clarified. I accept that the Alliance cannot now commence a new cause of action in
these proceedings and I will not permit same. I am however not so sure that that
paragrap h 28 of Ms Turner’s affidavit has that in mind. All the components raised in
this paragraph still harps on the original issues . The issue of fu rther documentation is
uncertain and will depend on what transpires . The Alliance can, however, not revisit
the initial Rule 35 (12) notice in as much as it did not earlier exact full compliance
therewith. Its approach was to seek that the Court draw infer ences from the alleged
deficiencies .

[344] He also alleges that the third supplementary affidavit of 20 November 2024 is
prejudicial to the provincial health r espondents as the y could not respond to it before
the matter was argued, as it was filed the ni ght before the hearing of 21 November
2024 . This is utter nonsense.. The GDoH was protected by the fact that on the
hearing date I did not permit debate about the content of Ms Turner’s supplementary
affidavit. The only attention it received was of a proce dural nature i .e. when and how
it would be dealt with . I most certainly did not admit the affidavit at the time leaving it
open for the GDoH to file proper reasons on oath as to why it should not be
admitted .

[345] Its objection to its admission are to say the least gi ven that it is a state entity
that shoul d maintain the highest standard of compliance with the Constitution, facile
and unpersuasive. To complain about the figure referred to in Ms Turner’s affidavi t
as if it is unknown when one works with the MTEF is ridiculous. One does not have
to be a genius to work out that the Alliance and Ms Turner added together the
ringfenced R250 million and the R261 million to get to R511 million which in their
minds are on the table for use . They were not yet told that the ringfenced funds were
lost and given the awar d made to Siemens in the 2023/2024 year in respect of the
Category 3 year and not knowing what happened thereafter the mistake made by the
Alliance and Ms Turner should have been obvious to Mr Malotana and his legal
team. In any event the media reports ann exed to Ms Turner’s supplementary
affidavit planted the notion of such an amount in her mind if the Alliance did not work
it out in the way I suspect. A Gauteng Province spokesperson seemed to think there
is such an amount.

[346] Mr Malotana submits that the Alliance ’s interdict, cannot succeed because
there is no R250 million which has been ring -fenced for planning services to be
performed by Siemens . The R250 million that was ring -fenced was for all three
categories for the fiscal year 2023/2024 (see paragraph 27 of the answering
affidavit) . This money was not spent because, at the time it was made available,
there was no commitment in terms of the purchase order, nor was the award made
at this stage . When Siemens was appointed, the pur chase order was generated but
Siemens could only invoice once it had reached certain milestones on planning
services agreed to be in batches of 100 pages at a time . Siemens has not reached
the first 100 and it has not invoiced.

[347] The entire R250 milli on was unspent and thus returned to the Provincial
Treasury . There is no R250 million that is in the possession of the Department at this
stage . The Department is required at the end of every fiscal year to return to
Provincial Treasury all unspent funds w hich the Department did at the end of the
2023/2024 fiscal year. Similarly, the Department will be required to return any
unspent funds, if any, at the end of the fiscal year 2024/2025 . Hence, it was stated
the interdict sought is moot and Part B has also been rendered academic .

[348] In the even t of Ms Turner’s affidavit being allowed, the deponent responds to
the allegations ad seriatim .

[349] Various defences are raised with regard to this belated supplementary
affidavit. It is alleged that the alleg ations made by Ms Turner are, by and large,
hearsay and not confirmed by confirmatory affidavits and are of little or no evidential
value and certain of the allegations (no specifics are indicated) are based on
speculation and rumours. I disagree. The comp onents that might be hearsay stems
from disclosed sources and there remains an element of residual urgency in this
matter.

[350] To the extent that t he deponent disputes that the Alliance was duty bound to
bring to the Court’s attention what it regards as “further relevant facts” by filing a
supplementary affidavit without leave of the Court I have already dealt therewith . It is
further asserted that there are no relevant facts . Facts are relevant if they
substantially support the relief sought in the notice of motion. This is incorrect. They
are also relevant when such facts demonstrates that the relief sought might be
moot..

[351] It is stated that the facts in the supplementary affidav it do not suppor t the
relief for an interim interdict or declaratory order sought in the notice of motion .
Instead, they seek to support a new cause of action based on compelling the
Respondents to produce documents to the Court. I have already dealt with this.

[352] The deponent is of the view that he has answered the case they were called
to answer in the answering affidavit and they dealt with the facts as they stood in
July 2024 in its answering affidavit and there was no duty on the GDoH to bring to
the attention of the Court events that occurred after its answer ing affidavit was filed
in July 2024 because those events have nothing to do with the relief sought by the
Alliance in its notice of motion. I have already dealt with this misplaced notion as
well. For th e aforesaid reason s, the provincial health respondents deny that they
have not taken the Court fully into their confidence as alleged by the Alliance .

[353] It is further submitted that the submissions made in paragraph 5.1 of the
supplementary affidavit contradict the founding affidavit in respect of the alleged
allocated funds for radiation oncology services . In the founding affidavit, the Alliance
has alleg ed that R784 million has been allocated by the Provincial Treasury for
radiation oncology treatment to cancer patients on the backlog list . According to the
Alliance , of this amount the Department allocated R250 million to planning services,
only to be pai d to Siemens . I should point out that this is exactly what the provincial
health respondents told the Court in their answering affidavits. I have already
expressed my views about the Alliance’s knowledge of the MTEF budget period.

[354] It is then argued that it is the alleged spending of the R250 million that the
Alliance is challenging, in both Parts A and B, and not the remainder of the R534
million . This is, of course, correct and is based on the original notice of motion of the
Alliance, which has never been substituted by any other notice of motion.

[355] It is then contended that the Alliance changed its version and is now alleging
a new figure of R511 million as the amount allocated to the cancer patients on the
“backlog” list wit hout providing any source of that information . I have dealt with this
already.

[356] Mr Malorana states that he made it abundantly clear in the answering affidavit
that none of the allocated funds have been used because the Department was still
busy with the tender process to outsource these services . Whilst finalising the tender
process and the award to successful bidders, the Department continues to treat
patients on the waiting list internally according to the need as determined by the
clinicians on site every day . Such decisions as pertaining to patients’ treatment and
when same is to be administer ed and how is entirely the decision of the clinicians
who treat patients and nobody else . It is, therefore, not up to the Alliance to
determine how such treatment is to be administered, when and by whom. I do not
agree that the non -use of the funds was mad e abundantly clear. How was the
Alliance to know that Siemens might not reach a target that permitted it to invoice?

[357] Accordingly, the allegations in this paragraph specifically deal with clear
allegations made by Ms Turner and, more specifically, ap art from the quantum
involved, with the assertions that GDoH appears to have abandoned the tender
processes for Categories 1 and 2 radiation and oncology professional services. It is
clear that Ms Turner’s views re the tender process having been abandoned at the
point in time she deposes to her in affidavit stems from sources of information later
referred to in her affidavit. I agree that paragraph 73 of the answering affidavit
discloses what Mr Malotana is still saying, but he ignores the time lapse since his
affidavit is filed and the fact that the GDoH did abandon the tender process and as
now disclosed in his affidavit he had to follow a deviation under Treasury Regulation
16A6.4 as is evident from an analysis of the annexures attached to his answering
affidavit.

[358] One has to work through Annexure AAA1 to find on page 30 -32 (of 34)
(Caselines 2 -890-892) the motivation placed before the BEC for the use of Treasury
Regulation 16A6.4 and the actual motivation for the deviation contained therein to
see that it contains little new information that was not already available at the time
the Alliance thought th e GDoH would follow the process as one should in urgent
cases. One can but wonder why Mr Manning’s suggestions as to the process used
in the Covid -19 crisis was not utilised from the outset or any other specie of
deviation in particular given the fact t hat the R250 million was ring -fenced.

[359] Mr Malotana’s denials in the body o f his affidavit seems to include a denial of
the assertion that in response to the litigation and public pressure G DoH appears to
have opted to outsource radiation oncology se rvices at SBAH and not CMJAH, even
though over two -thirds of the cancer patients on the backlog list are at CMJAH . It is
also a denial of Ms Turner’s assertion that the approach has changed significantly
and it shows that GDoH has wasted almost a year and a half by persisting with the
tender process that has been mired in delays, amongst other issues, and has
ultimately not resulted in backlog cancer patients receiving lifesaving radiation
oncology treatment, despite the fact that the R250 million were allo cated for that
purpose specifically. He later makes it clear that the present year’s R261 million has
been retained (thanks to the deviation) and that the services procured includes
outsourcing at CMJAH as well.

[360] Crucially he does not tell us when the SLA’s for CMJAH will be finalised. The
latter question is most pertinent given the assertion that it will take Ms Bogoshi a
year to work out the logistics to refer patients to the private sector. I know he denies
that Ms Bogoshi ever said this. But he does not tell the court when the SLA’s for
CMJAH will be signed nor does he address the details of the logistics. Even worse
Ms Bogoshi only makes a confirmatory affidavit but never addresses Ms Turner’s
supplementary aff idavit on a seriatim bas is. Where the statement about the logistics
is alleged to have been made openly in the Gauteng Legislature one would have
expected her to deal with it specifically and to want to clear her name and to give the
Court some comfort abo ut the logistics. Even more importantly there is nobody who
informs the Court when a backlog list patient will receive treatment other than
through the waiting list. This drives one to the conclusion that all the Alliance’s efforts
were in vain and will r emain so un til the GDoH updates the backlog list and
systematically call the patients in for treatment , each according to his/her clinical
condition.

[361] It also amounts to a denial of the fact that the Alliance proposed that
outsourcing be pursued as v iable treatment options from as far back as February
2022 and that the ring -fenced R250 million allocation from provincial Treasury was
specifically provided for the outsourcing of treatment for patients on the backlog list .
It also amounts to a denial of the fact that GDoH provided one version to the Court
and an entirely different version in its public communications.

[362] The deponent to this affidavit of the GDoH further states that parts of
paragraph 5.2 of the supplementary affidavit are based on s peculation and rumours
and are not factual . He contends that the correct facts are that, as stated in the
answering affidavit (at paragraph 73) that Categories 1 and 2 were re -advertised on
13 July 2024 . Category 3 which had been awarded to Siemens in February 2024,
starting from May 2024, for a period of 12 months was also simultaneously
advertised on 13 July 2024 for the appointment of service providers who will take
over the planning services from Siemens in May 2025, w hilst the Siemens contract
expired in April 2025. It is asserted that this was the factual position when the
answering affidavit was filed in July 2024 . The request for proposal s appears as
Annexure “A” ( at Caselines pp 05 -9 to 05 -97) and as can be seen fr om this , the
closing date for submission of bids was 2 August 2024, which was after the
answering affidavit was already commissioned and filed.

[363] Mr Mal otana states that the answering affidavit could not have dealt with
events subsequent to when it w as filed and in any event, the events that happened
after the answering affidavit was filed had no relevance to the relief sought by the
Alliance in Part A and there was no duty on the provincial health r espondents to
disclose same to the Court by way of f urther affidavits, which are not permitted by
the rules of Court. I have already expressed my view s on this topic above . A State
Organ will from time to time find itself in this position as is demonstrated by the
unique facts of the case.

[364] He also states that, as he has already said in the answering affidavit, this was
a complex tender which involved the procurement of delicate services and
equipment to be used on human beings and every effort is to be made that th e
Department is as accurate as possible in everything it does . Indeed, after the closing
date of 2 August 2024, the submitted bids were evaluated by the Bid Evaluation
Committee (“BEC”) and adjudicated by the Bid Adjudication Committee (“BAC”) and
then, fo r convenience, the BEC report is annexed as “AAA1” and also the probity
report as “AAA2” . The BAC resolution is attached as “AAA3” . It stated that, contrary
to the assertion by the Alliance , that the tender was abandoned . It was not
abandoned . It was cance lled for the reasons stated in the BEC report, which were
accepted by the BAC and approved by the deponent . The cancellation of this tender
was due to non -compliance by those who submitted bids, which meant that the
GDoH should recommence the tender proces s.

[365] The deponent states that he took into account that the tender had previously
been cancelled for various reasons, which resulted in the Department forfeiting the
R250 million which was allocated for the specific project, when the funds were
returned to Provincial Treasury . Because it could not risk forfeiting the R261 million
allocated for the 2024/2025 fiscal year , the tender was re -advertised . This would
mean that, by end of 2024/2025 fiscal year , the tender would still not have been
awarded, re sulting in the return of R26 1 million to the Provincial Treasury . Thus, he
decided that the same bidders who submitted the bids be scored on functionality and
appoint those who met the functionality requirements through a process of deviation
in terms of T reasury Regulation 16A6.4.

[366] He also attached letters of appointment and the contract form to the
successful bidders for Categories 1 and 2, marked “AAA4(a)” to “AAA4(f)” in this
regard . He further states that appointments have been made in respect of all three
categories as evidenced by the appointment letters . The appointed service providers
are appointed to provide the services to both SBAH and CMJAH for a perio d of 24
months . Hence, the allegations referred to are denied.

[367] In response to the furth er submissions made by Ms Turner in paragraph 5.3 of
the supplementary affidavit it is stated that the Alliance wanted the Department to
outsource these services without following the prescripts of procurement in a public
administration. Deviation is permi tted under Treasury Regulation 16A6.4. I read this
to mean that he alleges that the Alliance ’s original intention was that procurement
prescripts be abandoned. This is not so . As the tender process did not meet the
Alliance’s expectation for urgent results and given Ms Meyer’s exposure to Mr
Manning’s suggestions as to how urgent procurement can be done other than by a
tender process, the Alliance naturally defaulted to deviation over time . This deponent
makes it clear that the GdoH has never, at any stage, refused t o outsourc e services,
hence it embarked upon the tender process, which resulted in the appointment of the
current service providers .

[368] This deponent makes it clear that GDoH will continue to provide these
services internally as it does currently and that the outsourcing will complement the
Department’s internal mechanisms of providing these services. Mr Malotana
carefully avoids the pitfalls of why Treasury Regulation 16A6.4 was not motivated at
the time following the presentation s by Mr Manning. He knows he could have saved
the ring -fenced R250 million by permitting a deviation along the lines suggested by
Mr Manning.

[369] In response to the allegation that the Department has provided different
versions in different platforms, he denies the allegations by the Alliance , which he
terms are new facts , irrelevant to the determination of Part A of the application,
which he maintains bec ame moot in every respect and legally incom petent . The
freeze of the ring -fenced funds may have become moot but it does not necessarily
render all the relief sought moot. Or the fact that the provincial health respondents’
delays may well have been unconstitutional.

[370] In response to paragraph 8 of Ms Turner’s supplementary affidavit h e
accepts that annexure “LT1” is the written response from the Department, which I
have already referred to .

[371] As far as the waiting list is concerned, he states as follows, in response to
paragraphs 9.1 to 9.4 of Ms Turner ’s supplementary affida vit, that the Department
maintains a waiting list which is updated daily on site as new patients come onto the
waiting li st and others falling out of the waiting list for various reasons, such as
treatment completed, death or radiation treatment no longer necessary. He does not
elaborate as to how the Department would be cognized of such death or any other
reason for a patie nt being removed from the waiting list, in instances where patients
do not visit the hospital . This is the obvious gap in his explanation and which
requires more attention . In any event if it is s o updated the relief sought should not
be onerous at all.

[372] The composition of the waiting list when the answering affidavit was signed is
fundamentally different to the waiting list as it stands today for the reasons
mentioned.

[373] He states that the Department does not share the contents of the waiting li st
to third parties, let alone the Alliance . This is based, for obvious reasons, on the
doctor -patient confidentiality and POPIA . I have already analysed POPIA above and
am satisfied that section 26 as read with 27 and 32 will not be a barrier to the relie f
sought . This is for statistical purposes to satisfy the Alliance and its constituency that
progress is being made and if granted will be authorised by court order. POPIA
permits this kind of processing in section s 32 (1)(a) and 32(4). It is in any event in
the interest of the data subjects

[374] He confirms that the written responses by the GDoH in “LT1” are accurate
and correct and that the Alliance has conveniently failed to reference the responses
provided to questions posed in which he says answers the very questions which the
Alliance alleges were not answered.

[375] As far as the allegations in paragraph 9.5 are concerned, he maintains that
the answer is correct and consistent with what was stated in the answering affidavit .
The R250 million was unspent and returned to Provincial Treasury as it was
earmarked solely for the 2023/2024 fiscal year . It is thus not in dispute that this
budget is no l onger available but was not utilised during the relevant year for
purposes of outsourcing for patients on the backlog list . Clearly the GDoH is working
on its dynamic waiting list but I am not persuaded that the dynamic waiting list and
backlog list was at any point in time the same. There is clearly a need to clarify this if
one wishes to address the forgotten patients on the Alliance backlog list and
establish whether these patients are actually able to obtain oncological radiation
services timeously or not and if not what progress if any has been made.

[376] He states that it is unfortunate that the Alliance wanted the GDoH to answer
the question posed by the legislature the way the Alliance would have preferred .
According to this deponent, th is is entirely inappropriate . The Department responded
to the question truthfully and in an appropriate manner . There was no need for the
Department to mention the tender to Siemens which was already a matter of public
record and, in Part B of the application, the Alliance is seeking to review the decision
to make the award . He states that, in Part A, it seeks to interdict the payment of
R250 million to Siemens . According to this deponent, the Siemens contract started in
May 2 024 and it is ending in April 2025 ..

[377] With effect from May 2025, the new service provider, ONCA I Solutions (Pty)
Limited will be providing the services in Category 3 for 24 months to the Department
in respect of SBAH and CMJAH.

[378] It is convenie nt to mention here that Rule 53 has its own provisions permitting
the Alliance to amend its notice of motion once the GDoH has provided the record of
decision.

[379] Ms Turner raised the question, in her supplementary affidavit, which I regard
as quite pertinent, i.e. as to how many cancer patients have received treatment so
far from the R250 million set aside the previous year and the R260 million set aside
in the 2024/2 025 fiscal year . To this, the provincial health respondents replied that
patients had been treated internally and that the above allocation has not been used .
She complains that no explanation is provided as to how GDoH is managing to treat
any of the back log list patients as well as new patients “internally”, given the dire
shortages of staff and equipment which, on the provincial health respondents’ own
version, gave rise to the backlog in the first place.

[380] To this, the provincial health respondents maintain that they are consistent in
what they have said in their answering affidavit, in that no allocated funds have been
spent (in respect of the previous fiscal year ). The R261 million was allocated for the
2024/2025 fiscal year and has not yet been s pent because the award of all three
categories of the tenders was only made in October 2024, as is apparent from
annexure “AAA4” to the affidavit.

[381] In response to the criticism, GDoH stated that nothing stated in its answering
affidavit is inaccurate and nor does Ms Turner indicate what exactly the GDoH
allegedly presented is inaccurate. It maintains th at it has been treating the cancer
patients on the waiting list internally and continues to do so. It also maintains that the
outsourcing of these services is intended to complement what it is doing internally
with the treatment of cancer patients on the waitin g list.

[382] In respect of paragraph 9.9 of Ms Turner’s affidavit , the answer is simply that
the tender process that was underway has now been finalised and the service
providers have been appointed, as per annexure “AAA4”, as stated before . The latter
is the response to what has been done to spend the full budget available to cut the
waiting list of cancer patients speedily and significantly.

[383] The use by Ms Turner of the word s “waiting list”, as opposed to the consistent
use earlier in the Alliance ’s papers of “backlog list”, is not helpful. As matters stand,
it is clear that GDoH is not working from the same backlog list as is the Alliance and
it has studiously steered away from the use of the phrase “backlog list”. Ms Turner’s
use of the words “ waiting list” is not helpful and, given the difference between the two
concepts, as understood by the relevant parties, I do not draw a negative inference
against GDoH on this part.

[384] To the extent that Ms Turner criticises the failure to mention the outsourcing
arrangement to private facilities, she must have known, by the time she deposed to
her supplementary affidavit , that the answering affidavit, having indicated the
inchoate tender processes, suggests that this was unspent and, if there was any
doubt about that, that is made abundantly clear in the supplementary affidavit in
answer to Ms Turner’s affidavit , given that the tender process has now only been
finalised and the service providers have been app ointed, as indicated in annexure
“AAA4”. What is equally clear is that it took the Department the period from April
2023 till October 2024 before anybody had been appointed . I disregard the initial
appointment of Siemens given its insignificant role. There is no real explanation
before me as to how GDoH discharged its mandate to outsource the relevant
services on an urgent basis. The tender documents it should have produced under
Rule 35(12) included those part pertaining to the failed components i t did no t
produce and its failure to use Treasury Regulation 16A6.4 earlier to protect the ring -
fenced funds are nowhere to be found . Whether the GDoH made any impact on the
backlog list as it existed in 2022 when it was compiled or 2023 when it was updated
remai ns an open question.

[385] As indicated the backlog list, I refer to is as same was kept by the Alliance , as
opposed to the “dynamic waiting list” kept by GDoH . The two concepts are of a
different nature and obviously cannot speak to each other without fu rther
investigation . This is most unsatisfactory for purposes to coming to a decision in this
matter and until such time as the backlog list and all the patients that have been
treated or passed away have been reconciled and a list of untreated patients is
compiled which has as its basis the 2022 backlog list , these statistics will merely be
products of the GDoH’s dynamic list which may satisfy a bureaucrat but never the
Alliance or this Court. What is desperately needed is a list which goes to the root and
exposes who has gone untreated be it by happenstance or neglect . The extent of the
real crises has not been determined.

[386] Although Ms Turner alleges, in paragraph 10 of her supplementary affidavit,
that, as at 15 October 2024, the tender for outsourcing services was still under way
and, of the R500 million that has been allocated for the treatment on backlog list
patients, none has been allocated or spent on providing such treatment to patients,
this does not foll ow. Neither party can categorically make such a statement . I
assume the R500 million refer to should be R511 million. What can be said is that
R250 million has not been spent. Whether the balance will ever be spent on a
backlog list patient only time will tell.

[387] Ms Turner relies on the fact that no public announcement has been made as
to the status of the tender and, as detailed in the Alliance ’s further supplementary
affidavit and the provincial health respondents refuse to engage with the Alliance in
providing further information as to the status of the tender.

[388] Rather than dealing with this complication and trying to cast light on the
matter, other than clarifying that GDoH has never denied that it has not spent the
R250 million or the other allocated funds, it maintains that it continues to treat
patients on the waiting list (as opposed to the backlog list), internally, in both SBAH
and CMJAH and is in the process of extending these services, in the long term, to Dr
George Mukhari Academic Hospital and Chris Hani Baragwaneth Hospital in
Soweto.

[389] It is then stated that the awarding of the tenders to the service providers, in
annexure “AAA4”, will complement the work done by the Department internally in
these hospitals . This fails to deal with a further fundamental complaint. i.e. that the
GDoH is not engaging with the Alliance or providing further information and is also
not explaining how it is now able to deal internally with the patients without utilising
the budget for outsourcing . It should be remembered, in this regard, that, on its own
version, it is st ill in the process of appointing further radiotherapists.

[390] Ms Turner, in her supplementary affidavit, criticised GDoH inasmuch as it
originally stated in its answering affidavit that it has failed to indicate that there is no
evidence to support the allegation that they have failed to utilise the funds . I observe,
in this regard, that, whilst there is certainly room for criticism to the answering
affidavit, I am not satisfied that GDoH ever denied that they failed to utilise the funds .
In fact, to me it is quite clear, from the answering affidavit, that t he tender processes
all failed and that, by the time the answering affidavit had to be filed, the obvious
consequence of having failed to spend the budget either had or w ould have taken
place, i .e. the return of the money as is the practice at the end of t he fiscal year . The
GDoH of course do not explain when exactly it returned the ring -fenced funds .

[391] I accept that GDoH could have communicated more clearly and should have,
as a State Organ subject to the Constitution, acted in a transparent and open
fashion.

[392] With regard to Ms Turner’s reliance on the media coverage, which is evide nt
from the annexures I have already referred to and which stems from the assertions
made in paragraphs 12, 13 and further in her supplementary affidavit, the deponent
to the GDoH’s supplementary affidavit responds globularly to paragraphs 12 to 21 of
Ms T urner’s affidavit by stating that same is hearsay and unconfirmed by
confirmatory affidavits. The point is taken that same is of no evidentiary value, does
not constitute evidence and also contains nothing materially contradictory to what the
Department h as told the Legislature and what it has told the Court in its answering
affidavit .

[393] At the same time, G DoH admits that the Department is pumping millions into
cancer treatment in Gauteng, taking into account that Gauteng caters also for three
other provinces, Mpumalanga, North West and Limpopo , for these services. To that
extent, GDoH admits that the Depar tment is pumping millions into radiotherapy and
admits paragraph 13 of Ms Turner’s affidavit and, to the extent that she relies on
annexure “LT2”, an article from the Pretoria Rekord , the GDoH does not dispute it.

[394] It also does not take issue with th e assertion made by Ms Turner based on
the fact that the article specifically refers to patients who are on the radiation
oncology backlog list and who are awaiting radiotherapy services . In this respect,
there is a differentiation between patients, accord ing to the article, at SBAH,
following an assessment at the hospital which will be referred to private health
facilities . According to the newspaper, was “part of GDoH’s R260m illion – plus
investment into oncology services . The content of this paragraph is accurate , save
for the fact that it will not only be patients at SBAH, but also will include patients at
CMJAH who will enjoy this benefit. The latter is based on Mr Malotana ’s and Ms
Bogoshi ’s say so. The dispute between Ms Bogoshi and Ms Turner must of course
be assessed on the Alliance’s version given that interim relief is sought .

[395] To the extent that Ms Turner understands that the reported outsourcing
arrangement as well as the R260 million investment reported on are related to the
radiation oncology backlog and the R250 million that is at the centre of the litigation,
GDoH is quite emphatic . It is clearly stated that her understanding is incorrect, that
the R250 million was unspent and returned to the Provincial Treasury, an d that the
R261 million, as already stated in paragraph 27 of the answering affidavit, is for the
2024/2025 fiscal year and is still unspent . The GDoH makes it clear that this will be
spent now that the tenders have been awarded to the service providers in annexure
“AAA4”, as long as it is able to have commitments made in the form of purchasing
orders before the end of the 2024/2025 fiscal year .

[396] To the exten t that Ms Turner, relying on the various newspaper articles which
state that the outsourcing relationship will be for the benefit of prostate cancer and
breast cancer patients and that the service level agreements between the private
healthcare facilities and two public radiation oncology centres, namely, SBAH and
CMJAH, had not been finalised, GD oH states that this is of no moment, given that
the appointment of the service providers have already spel t out the nature and extent
of the services and the details will be fleshed out in the service level agreements
which are being negotiated and conclud ed “as we speak”. Presumably same were
not yet concluded by the time Mr Malotana’s affidavit was signed.

[397] The affidavit proceeds to state that two of the service providers (no names
provided) have already signed the SLAs and the remainder are still reviewing the
SLAs with their attorneys and will sign same in due course . This undermines, to
some extent, the GDoH’s statement that the services will, in due course, be
outsourced. There is no assurance that the SLAs will necessarily be signed.

[398] Ms Turner specifically refers to the fact that two SLAs have been signed with
private healthcare facilities and states that this appears to contradict the GDoH’s
case in answer to this application where it maintain s that the tender process is
required for outsourcing and is being run and also appears to contradict the answers
by GDoH, which reiterated the tender process . She states that, as set out in the
earlier supplementary affidavit the GDoH Respondents refused t o provide the
Alliance with any meaningful response as to the status of the tender and it therefore
came as a surprise to the Alliance that the SLAs ha ve been concluded.

[399] To this, Mr Malotana responds that the allegations are speculative and based
on the Alliance ’s own incorrect suppositions . It denies that there is any contradiction
with its answering affidavit and criticises the Alliance for unreasonably expecting the
Department to have dealt with events that only occurred in the future in its answe ring
affidavit which was filed in July 2024, and, hence, it is alleged to be absurd.

[400] What this fails to discount is that one would have expected the necessary
transparency and openness given the nature of this matter and the constitutional
rights at play.

[401] The deponent admits that the tender process was required in order to
outsource and that it did so and re -advertised same, which resulted in the
appointment of the service providers in annexure “AAA4”.

[402] The GDoH notes the welcoming of the Alliance of the signing of the SLAs and
that same is the end product of the tender that was re -adverti sed and awarded to
these mentioned service providers . The GDoH denies that the SLAs were concluded
for SBAH only . The appointment of these service providers is allegedly for both
SBAH and CMJAH . The Department also welcomes the successful completion of the
tender process . This flies in the face of the fact that two of the SLAs are not yet
signed and there is no evidence before me that any SLA has been signed in respect
of the CMJAH, which is the hospital with the largest waiting list.

[403] Ms Turner speci fically alleges , in her supplementary affidavit, that the SLAs
that are signed relate only to SBAH and not to CMJAH . According to her , and as a
result of her enquiries with stakeholders in the sectors , she is of the view that no
SLA’s have been similarly c oncluded to provide radiation oncology services to
backlog cancer patients at CMJAH . Although the conclusion of the SLAs is a
welcome development, the fact that the backlog lists at CMJAH are not catered for is
a concern because the bulk of the backlog cancer patients are awaiting treatment at
CMJAH.

[404] To this, the Department responded as follows:

“The Alliance refers to the number of patients on the waiting list as at 10 June
2024 and five months’ later the waiting list has significantly changed as it is
updated daily for the reasons set out before.”

[405] Here we have the pointed reference by Ms Turner to the backlog list patients,
which are not catered for, as opposed to the waiting list referred to by the GDoH .
This I cannot resolve on the papers, as stated before . It nevertheless remains a
mystery how the backlog list , or the waiting list, could have been reduced at CMJAH
given that none of the tenders have taken effect, unless some internal capacity was
acquired, which we have not been referred to, or in some or other way patients have
dropped off either of the lists, or simply passed away.

[406] In the GDoH’s response to Ms Turner’s affidavit as to the quote referred to in
the media by Motalalale Modiba, i .e. that on 30 October 2024 the tender process had
been concluded and the service providers had been appointed, it is stated that this is
correct and it is also stated that this statement is in no way inconsistent with what it
has always been saying.

[407] Ms Turner, on the other hand, according to the article published in Gauteng
News (which appears to be a government sponsored news agent) and which is
annexed as “LT3” (although unmarked in my papers), refers to the spending of R511
million . There is no issue taken with this statement and nor is any issue taken with
Modiba’s statement as referred to.

[408] Ms Turner alleged that Modiba’s statement appears to be inconsistent with
the responses given by GDoH, referred to by her higher up in her affidavit, as wel l as
in her answering affidavit . It would appear to me that this is unfair criticism, given that
there is no allowance made for the lapse of time since the answering affidavit was
filed.

[409] Ms Turner also suggests that it appears to be misleading since the process is
nowhere near completion inasmuch as no SLAs have been concluded with CMJAH
where the majority of the backlog patients are awaiting treatment. Unsurprisingly,
GDoH had no choice but to admit this. It states, in paragraph 25.11 of its
supple mentary answering affidavit in response to Ms Turner, that the contents of this
paragraph are correct with regard to the efforts of the GDoH to fill the vacancies at
CMJAH with several candidates being interviewed . I specifically point out that there
is no reference to any additional candidates having been appointed or already in the
employ of GDoH . There is a cross -reference in this affidavit to the answering affidavit
and it is specifically stated that the Department has not frozen posts for the
appointme nt of radiotherapists and, to that extent, the statement of Ms Turner is
incorrect.

[410] What is not addressed is the fact that there are no SLAs concluded for
CMJAH . To the extent that Ms Turner alleges that this is contradictory to the
allegation about the freezing of posts, it does not follow and it is specifically denied
by GDoH.

[411] Be that as it may, nothing in the GDoH’s supplementary affidavit explains how
the position at CMJAH is being addressed, or states that SLAs have already been
concluded for this hospital . The effect hereof is that, as at the date this affidavit was
filed, the final pages of which were only put before the Court on 28 November 2024,
suggests that nothing was done with regard to the massive backlog or waiting list at
CMJAH . When one uses the waiting list as indicator, somehow, according to GDoH,
the numbers have dropped . No explanation is offered in this regard.

[412] Finally, the GDoH’s representation dealt w ith by Ms Turner in annexure “LT4”
of her supplementary affidavit, which is the flowchart placed before the Gauteng
Legislature for providing an update on oncology services in the province and to
which the cancer stakeholders were invited, and which Ms Turner attended, are
admitted . It is alleged by Ms Turner that GDoH reported that it has signed a service
level agreement with private sector partners and that the duration is two years and
the budget is R260 million . No indication was given as to whether these SLAs were
the outcome of the tender process t hat it has relied upon so heavily in their
answering affidavit . To this GDoH responded by admitting the first three sentences
of this paragraph and denying the balance, which was allegedly stated by Gladys
Bogoshi and referred to by Ms Turner in paragraph 23 of her supplementary affidavit.

[413] In sum then, the GDoH, to the extent that it is alleged that Ms Bogoshi has
stated at the meeting that she had received the SLAs from the GDoH for her
signature in respect of CMJAH and had yet to sign them, and tha t, once she had
signed them, it would take approximately a year to work out the logistics to refer
patients to the private sector, denie s same .

[414] The flowcharts, which were apparently slides 6 and 7 of the presentation,
referred to by Ms Turner, which is meant to indicate the path walked by a patient in
an outsourcing arrangement with the private sector, are also denied to the extent
that they contradict the objective facts from the annexures in the further
supplementary affidavit filed by the GDoH. T he flowcharts are reproduced, as far as
I can see, from what was presented at the hearing at the Legislature and the effect of
this denial is actually to deny what Ms Turner says, i .e. that it appears from a reading
of the flowcharts that CMJAH intends to outsource services for new patients who are
consulting with an oncologist for the “first time”. She drew the conclusion that the
cancer patients who are on the backlog list would not be referred to outsourced
radiation oncology . This remains in dispute by the Department . Again the different
concepts of a dynamic waiting list and the backlog list is at play.

[415] To the extent that Ms Turner alleges that the allocated funds should be used
for patients on the backlog list and not for new patients, given the historical
background to the funding and that the funds were allocated by the Provincial
Treasury for urgent treatment of cancer pat ients on the backlog list, this is also in
dispute . As she puts it:

“without sufficient machinery, staff and the freeze on filling posts, it is hard to
imagine how the provincial health respondents can provide the radiation
oncology treatment to the backl og cancer patients at CMJAH if these patients
are excluded from the outsourcing arrangement.”

[416] It would appear that GDoH denies the contents of these paragraphs as well.

[417] In her paragraph 26, Ms Turner makes the point that the Alliance motivate d
the Gauteng Treasury for the ring -fencing of funds and that the Alliance did so
specifically for the radiation oncology treatment of patients who have been awaiting
treatment for eighteen months to three years – patients on the backlog list . She
alleges that, in response to the Alliance ’s plea, Gauteng Treasury allocated R785
million for GDoH to urgently address the backlog . The bulk of the backlog of cancer
patients are at CMJAH and it is crucial that any outsourcing efforts, while welcome at
SBAH, are a lso replicated at CMJAH to treat patients on the backlog list .

[418] GDoH just denies Ms Turner’s conclusions that the reports of the Legislature
show major inconsistencies and contradictions in the versions provided by GDoH
and as opposed to what was pr ovided to this Court and the Legislative Oversight
Committee. It is also alleged that the provincial health respondents continue to
withhold relevant information in their possession from the Court.

[419] Inasmuch as Ms Turner issues a call upon the provincial health respondents
to furnish relevant information to the Court on affidavit in relation to SBAH as to
whether an outsourcing arrangement has been concluded in relation to SBAH, it
would appear that this has been an swered in the positive . To the extent that she
requests that, if so, whether the outsourcing arrangement is for cancer patients on
the backlog list, this question remains unanswered . This is due to the differential
between the concept of the backlog list a nd the waiting list.

[420] Turner’s request for further relevant supporting documents, including, if
necessary, an appropriately redacted version of the SLA concluded, is, to some
extent, met, although not completely and there is no evidence of any SLA co ncluded
in respect of the CMJAH, nor any indication when same will be concluded.

[421] A final question posed in one of the concluding paragraphs to the
supplementary affidavit, i .e. how much of the Category 3 planning services contract
awarded to Siemens had already been spent, and how much of this was for planning
for cancer patients on the backlog list, and how much was spent on new cancer
patients, seems to have been answered inasmuch as the assertion is that the R250
million was returned to Treasury.

[422] I should refer to the concluding paragraphs of Ms Turner’s supplementary
affidavit . It was submitted, in paragraph 29, that the aforesaid information put forward
by the Alliance , and the request for the further information that should be furnished
by the provincial health respondents, are all necessary in order for GDoH to be in
compliance with their section 195 obligations, particularly those in relation to
openness, transparenc y and accountability . The point was made that the y have
failed to do so, in keeping with the tactic discernible throughout the litigation of
withholding relevant facts and documents from the Alliance and the Court.

[423] To the extent that relief was soug ht in paragraph 28 of the supplementary
affidavit, which I have already referred to, it was contended by GDoH that they are
not entitled to such relief, same not having been sought from the outset . I have
indicated that, to some extent, such information ha s been furnished, although by no
means all such documentation and, in particular, not as far as the CMJAH is
concerned.

[424] The supplementary affidavit filed by Mr Mal otana on behalf of the p rovincial
health respondents was supported by way of a conf irmatory affidavit from one Dr
Lehlohonolo Majake -Mogoba , to the effect that she is an adult female medical doctor
employed as Chief Executor Officer at the SBAH . Not only did she confirm that she
read the various affidavits , includin g the most recent affidavit of Ms Turner, as well
as that of Mr Malotana, and confirmed the correctness thereof insofar as it related to
her or the CMJAH . Significantly, she does not confirm any of the content pertaining
to the SBAH where she is employed.

[425] A further confirmatory affidavit of Ms Bogoshi, which I have already referred
to, was filed, in which she confirmed that she is an adult female, the Chief Executive
Officer at CMJAH . I point out that she does not indicate that she is qualified as a
doctor . She has also confirmed that she read all the affidavits, particularly including
the one deposed to by Mr Malotana, and confirmed the correctness thereof,
specifically inasmuch as it related to CMJAH.

[426] The Alliance , after receipt of the supplementary answering affidavit filed an
affidavit styled “ Replying affidavit to first, second and seventh respondents’ answer,
dated 28 November 2024. ” This affidavit, again attested to by Ms Turner, deals with
the above response by the said Mr Malotana and makes the point that, for the first
time, the provincial health respondents informed the Court that the R250 million wa s
not spent and had to be forfeited to Provincial Treasury at the end of the 2023/2024
fiscal year .

[427] She points out that the fiscal year for all departments of the Provincial
Government is the end of March . The provincial health respondents carefully
avoided giving the date of the fiscal year end throughout their answer to the
supplementary affidavit . The provincial Government’s 2023/2024 fiscal year ended
on 31 March 2024 . She points out that the provincial health respondents had at least
five opport unities to inform the Alliance and the Court that the R250 million was
returned to Provincial Treasury at the end of March 2024, i.e. when they filed their
answering affidavit on 19 July 2024 (it should be borne in mind that this was done
under circumstanc es where same was due in terms of an urgent application): when
they filed their heads of argument on 4 October 2024, when they received the first
supplementary affidavit on 6 September 2024, when they received service of the
second supplementary affidavit on 18 October 2024 and at the full -day hearing held
on 21 November 2024. There is truth in the statement. Especially when nobody goes
on oath to say exactly when the funds were returned.

[428] She points out that GDoH did not disclose the fact at any of t he above stages
in the litigation, until they were given the opportunity to respond to the supplementary
affidavit dated 20 November 2024.

[429] She further points out that the answering affidavit, dated July 2024, filed
24 months after the end of the 202 3/2024 financial year, told the Court that the R250
million would be used to provide Category 1, 2 and 3 services provided for in the
tender, as set out in the answering affidavit at paragraphs 10, 27.1 and 32, which full
well knowing that the money had al ready been forfeited . It is unclear to me whether it
was already known then but the GDoH most certainly could have clarified in its final
affidavit . There is a lingering suspicion that it knew earlier.

[430] Hence, she draws the conclusion that the forfeiture of the money and the
provincial health respondents ’ lack of candour with the Court strengthens the
Alliance ’s case for the declaratory and mandatory relief sought.

[431] In her replying affidavit, it is denied that the supplementary affidavits were
filed without seeking leave of the Court . It is submitted that, at the hearing on
21 October 2024, the Alliance sought leave to file the supplementary affidavits, dated
6 September 2024 and 18 October 2024 . I am in agreement herewith and, to the
extent that reliance is placed on the Court’s overall discretion in terms of Rule 6(5)(e)
to permit the filing of further affidavits, I had no problem in admitting these affidavits,
bearing in mind that the 6 September 2024 supplementary simply attached the Rule
35(12) and its response and that the provincial health respondents had over 10
weeks to respond thereto. The statement that the provincial health respondents
chose not to respond to it; despite having ample time to do so and their claims of
prejudice is baseless . I might add to this that the Alliance invoked no remedy to
compel such discovery either.

[432] The 18 October 2024 supplementary affidavit attach ed correspondence
related to the refusal of the provincial health respondents to confirm whether the
tender had been abandoned or cancelled . She states that, as it turns out, the y had
abandoned the tender, but they had no intention of informing the Court o f this fact
until they were forced to in their answer, dated 28 November 2024 . They had in
excess of four weeks to respond to the supplementary affidavit s but no response
was filed . The provincial health respondents had many opportunities to respond to
these two supplementary affidavits . They elected not to do so and they cannot claim
prejudice when they chose not to answer and their claim of prejudice is, therefore,
baseless.

[433] It is then stated that, on the directions of the Court, the provincial health
respondents agreed to timelines for filing an answer to the 20 November 2024
supplementary affidavit and for the Alliance to deliver a replying affidavit, as well as
an exchange of supplementary heads . The facts in the supplementary affidavit ought
to have been brought to the Court’s attention by th em and they failed to do so . The
provincial health respondents filed an answe r and, therefore, any claim of prejudice
is baseless .

[434] I pause to state here that at no stage did Adv Mokhare SC, acting on behalf of
GDoH, agree that further supplementary affidavits may be filed. I distinctly recall him
obtaining instructions for the filing of such affidavits, but as indicated in the affidavits,
this was subject to the right to still object thereto and, hence, all answers were
subject to the Court ultimately admitting these affidavits. To the extent that it is
alleged here that th e provincial health respondents should have kept the Court
updated and informed, there is in my view merit to same.

[435] She also takes issue with the allegations contained in paragraph 6 of the
GDoH’s supplementary answering affidavit . She points out that paragraph 28 of this
affidavit only requests information from the provincial health respondents to provide
relevant information to the Court relating to the alleged outsourcing arrangement,
whether these arrangements are for cancer pati ents or the backlog list, and how
much has been spent on the Category 3 planning services and if these services
were for patients on the backlog list. She states hat t he suggestion that the
supplementary raises a “new cause of action” is absurd . It is cont ended that it is
unnecessary and a baseless technical point taken by the provincial health
respondents.

[436] I should state here that I do not see any new cause of action inasmuch as this
affidavit requires the provincial health respondents to provide re levant information . If
anything, it is an attempt to hold GDoH to section 195 obligations under the
Constitution . In any event, this paragraph is again bedevilled by the terminology
“backlog list”, as opposed to “the waiting list”, which is consistently encountered in
the GDoH’s affidavits.

[437] It is contended that the information in this paragraph lies within the exclusive
knowledge and control of the provincial health respondents and, in the context of the
relief sought, the Alliance is entitled to request the Provincial Health Respondents to
adhere to the obligations of transparency and openness.

[438] As already stated, this paragraph is bedevilled by the confusion between the
backlog list and the waiting list and, inasmuch as the specifics are sought with regard
to whether an outsourcing arrangement can be concluded in relation to SBAH and/or
in relati on to CMJAH and to furnish the relevant documents, I can see no objection
thereto .

[439] The question s in regard to how much of the Category 3 planning services was
awarded to Siemens and how much thereof has been spent , how much was for
planning for can cer patients on the backlog list, and how much was spent on new
cancer patients, are not entirely irrelevant question s, given the differential between
the concept of the backlog list and the waiting list.

[440] One should bear in mind that paragraph 29 of that supplementary affidavit
makes it clear that the information placed before me in the supplementary affidavit
was done in order to enable me to make a just and equitable order and, in my view,
ultimately led to further and full er disclosure by the provincial health deponents.

[441] The whole tenor of the application from the original affidavits to the sequence
of supplementary affidavits discussed above was always aimed at establishing to
what extent ring -fenced funding was utilised for new patients as opposed to the
patients already on the backlog list. I am, unable to agree with the provincial health
respondents that the supplementary affidavit filed on the eve of 20 November 2024
should be disallowed . There is no attempt to found on a new basis, but purely an
attempt to update the Court as to the information that came into its possession which
appears to be relevant.

[442] Siemens was appointed, a purchase order was generated but Sie mens could
only invoice once it had reached certain milestones of planning services agreed to in
batches of 100 patients at a time, and Siemens has not reached the first 100 and it
has not invoiced . This latter part does not appear in the answering affidav it. It would
have been of some help if this was in the answering affidavit and it would suggested
that the provincial health respondents are discharging their duties in terms of section
195 had they made it clear in the answering affidavit that the R250 m illion was
unspent and returned to the Provincial Treasury.

[443] On its own version, in paragraph 9 of the supplementary affidavit, the GDoH
states that it is required at the end of every fiscal year to return to Provincial
Treasury all unspent funds . This it must have known when it deposed to the
answering affidavit . I take into account that it was filed under urgent circumstances
and that this may have led to this topic not being fully covered . Of course, as
suggested by the provincial health responde nts, the interdict sought in Part A has
become moot . To insist that for these reasons the supplementary affidavit should be
disallowed I believe is unreasonable . I do not suggest in criticising this decision that
the Alliance was without blame in not arriv ing at its own conclusion that the R250
million was bound to be returned at the end of the fiscal year and probably was
returned, but it would have been within the knowledge of the provincial health
respondents to testify thereto in their answering affidav it and, in accordance with
their section 195 duties under the Constitution, to make full disclosure thereof.

[444] Ms Turner, in her replying affidavit to the supplementary affidavit and, in
particular, with regard to the notion that the relief sought is moot, states that no new
cause of action is introduced and denies that the relief sought in Part A of the notice
of motion is untenable and without legal foundation . She does not elaborate on this,
although more appears in this regard form the heads of arg ument . She does state
that the first supplementary affidavit became necessary to place new facts before the
Court, that these are vital to the determination of the relief sought and particularly as
to whether the provincial health respondents’ defence has any merit . The provincial
health respondents chose not to place the new facts before the Court and it,
therefore, became incumbent on the Alliance to do so.

[445] This raises the question whether there remained a continuous duty on the
provincial health respondents after the filing of the answering affidavit in the urgent
application to continue updating the Court so that the Court could deal with the latest
state o f information as it stood on the date the case was argued . Whilst I can see
ample room for the provincial health respondents to have been more open and
transparent, as is required from them under the Constitution, this duty certainly did
not require them t o update me in every respect with regard to any new tender and
they were only obliged to fully deal with the failed tenders and the outcome thereof .
In this regard, I have already pointed out the part that was not dealt with in the
answering affidavit , which I do regard as vital .

[446] I am, f or th e above reason s, not inclined to disallow the supplementary
affidavits .

[447] The fact that part of the relief may well have become moot does not mean
that the need for a declarator to the effect that the provincial health respondents
have acted unlawfully and unconstitutionally by failing to devise and implement a
plan to provide radiation oncology services at CMJAH and SBAH to provide radiation
oncological services to ba cklog list patients has also become moot, and mandatory
orders directing that the provincial health respondents take all steps necessary to
provide the radiation oncology services to backlog patients urgently via outsourcing
or otherwise, updating the ba cklog list in a meaningful way, and that supervisory or
structural relief requiring the provincial health respondents to deliver an updated
report providing progress reports on the steps taken to provide radiation oncology
services to backlog list patients and the long term plan to provide radiation oncology
services to all cancer patients at CMJAH and SBAH , have all become moot. .

[448] She contends that the matter is moot where the relief sought will have no
practical effect, although a Court may still de termine an otherwise moot issue if the
interests of justice so required and also refers to legal argument that will be
addressed in the Alliance ’s submissions, which indeed appears in the heads of
argument.

[449] She further states that she has been advis ed and submitted that, even if the
interdictory relief has become moot as a result of the return of the R250 million to the
Gauteng Treasury, the other three categories are not moot for, at least, the following
reasons

449.1 the declaratory relief is premised on the provincial health respondents’
breach of the backlog list patients’ right of access to healthcare in section
27(1) of the Constitution;

449.2 the breach of the provincial health respondents constitutional
obligati ons, in terms of section 7 read with section 27 of t he Constitution, to
protect, promote and fulfil the backlog list patients’ right of access to
healthcare by taking positive steps and also by not taking negatives steps that
impinge on those rights;

449.3 the breach by the said respondents of their constitutional obligations in
terms of section 195 of the Constitution; and

449.4 the possible infringement by the said respondents of the backlog list
patients’ right to administrative justice in terms of section 33 of the
Constitution, by the failure to outsource and provide radiation oncology
services to those patients in circumstances where the funds (R250 million)
were made available to the Provincial Health Respondents with the specific
purpose of doing so. I am of course not at present seized with this part of the
matter but there is an interplay with the relief sought the Alliance under part B
of the Norice of Motion.

[450] It is submitted that the Alliance did make out a case in its papers therefore
and that the provincial health respondents had acted unlawfully and that the Court
should at least grant a declarator. The fact that they were obliged to return the R250
million to Treasury is, according to Ms Turner, a consequence of their own inaction .
and if anything , same render s the listed relief even more urgent.

[451] I interpose here to observe that no SLA seems to have been concluded in
respect of the CMJAH which adds to the need for the above relief.

[452] Ms Turner further points out that, in order to implement the SL As, GDoH must
have a list of patients who are to be treated under those SLAs and those must be or
to my mind include backlog list patients, since the funding to be used was specially
allocated and ring-fenced and became lost. .

[453] The notion of updating the backlog list or reconcile same with the waiting list
is, in itself, problematic and I will deal therewith lower down.

[454] It is further submitted that irreparable harm will occur if the provincial health
respondents continue in their failure to act expediently , given that, on their own
version, R250 million of the R784 million has already been returned to Gauteng
Treasury.

[455] Ms Turner expresses the real fear that, as the end of the cur rent fiscal year
rapidly approaches, there is a real danger that the provincial health respondents will
be required to return some or all of the unspent funds from the second allocation for
the 2024/2025 fiscal year .

[456] Ms Turner point s out that there is nothing in the supplementary affidavit that
explains where the money required to pay Siemens Healthcare or the service
providers in SLAs comes from . In this she is incorrect. Nevertheless the Alliance
(correctly) assumes it will come fro m the second allocation paid in the 2024/2025
fiscal year , but whether or how this affects or alters the decision to split the allocation
between outsourcing services, on the one hand, and equipment and personnel, on
the other, is impossible to determine f rom the answer.

[457] Hence, it is concluded that the lawfulness and constitutionality of the decision
to split the allocation remains a live controversy and the relief sought in the review
will have a practical effect.

[458] Ms Turner thus globularly su bmits that neither all the interim relief or even the
review relief is moot and, even if it were, she states that she is advised and submits
that the Court may determine an otherwise moot issue if the interest of justice so
requires . I will deal later with this, given that legal authorities have been advanced
and put forward in the heads of argument to this effect.

[459] She also states that she is advised that there are a number of factors the
Court will generally consider and submits that these factors favour the determination
for at least the following reasons. T he Court’s order will have some practical effect
on the cancer patients on the backlog list and for the broader public – since the
provincial health respondents are utilising (or failing to utilise) public funds, and their
obligations of openness, accountability , and transparency as cornerstones of our
constitutional demo cracy are in issue.

[460] The importance of the issues at stake in this matter can not be overstated . The
issues are complex, covering, as they do, fundamental constitutional rights and
obligations of the State and the proper use of public funds specially allocated to
provide potential lifesaving treatment to a vulnerable group of people .

[461] Full argument has been advanced and exchanged in the argument before me
on 21 November 2024 and similarly in the supplementary affidavits and the further
written submissions and supplementary heads of argument.

[462] She thus makes it clear that the Alliance seeks the relief set out in the notice
of motion.

[463] Ms Turner further engages in an a d seriatim response to the additional
supplementary affidavit as dealt with by the provincial health respondents, She
denies that the allegations in paragraphs 1 to 3 of the supplementary affidavit are in
any way hearsay and not confirmed by confirmatory affidavits and thus of little
evidentiary value . She rejects the notion that the allegations are baseless
speculati on and rumours . I agree with this . Many of the allegations contained in the
supplementary affidavit are based on the provincial health respondents’ documents
and the inconsistent versions before different fora about the obligations to provide
potentially lifesaving radiation oncology treatment to cancer patients on the oncology
list.

[464] Ms Turner specifically takes on the provincial health respondents on the
notion that they answered the case in their July affidavit . She relies on what has
transpired f rom the supplementary answering affidavit and states that they only
address material omissions and glaring inconsistencies when confronted with their
own documents in the 20 November supplementary affidavit . I am of the prima facie
view that there is some truth in th is.

[465] She continues by saying that, if the R250 million was returned to Provincial
Treasury at that stage, that fact was well within the provincial health respondents’
knowledge when finalising its answer ing affidavi t and it was a material fact as of July
2024 . She quite rightly states that the forfeiture of the R250 million should have
explicitly been pleaded in the affidavit of July 2024 or as soon as it occurred and
have taken cognisance that they at no stage tell the Court when exactly they knew
and actually did return the funds . I have already indicated that I agree with this
notion, but that does not detract from the Alliance ’s obligation to familiarise itself with
the procurement laws and it should have reckoned from the outset that, by the time
the urgent application could be heard, the obligation to return the R250 million may
already have kicked in. The only exception thereto would have been if the indications
were that it was fully spent, which it was not. The form and extent of the application
may then well have been casted in a more workable format.

[466] She, therefore, states that the provincial health respondents have
demonstrated that they have not fully taken the Court into their confidence .

[467] I should point out that, in the paragraph under discussion, the provincial
health respondents emphasise, in their answering affidavit, they had no duty to bring
to the Court’s attention the events that occurred after the answering affidavit was
filed in Jul y 2024, because these events have nothing to do with the relief sought by
the Alliance in its notice of motion. Hence, it denies that it had not taken the Court
fully into its confidence . This, however, does not add ress its failure to deal with the
use of the R250 million and the fact that the obligation to return same had already
become effective. I have also expressed my views as to a State Organ ’s obligations
to put all relevant facts before the Court even when th at means having to resort to a
supplementary affidavit.

[468] To the extent that they in this section of their supplementary affidavit still
invoke the notion that the Alliance seeks to rely on a new cause of action, I disagree
as to the correctness there of.

[469] Ms Turner also takes the provincial health respondents on with regard to her
further allegations in paragraph 14 of the supplementary affidavit . In this part of the
affidavit, the y state that the spending of the R250 million is at the heart of the relief
sought by the Alliance , challenged in Part A and Part B, and the remainder of the
R534 million is not challenged . To this end, the y have already alleged that a new
figure of R511 mi llion is allocated to cancer patients from the backlog list without
providing any source of information and that it was made abundantly clear in the
answering affidavit that none of the allocated funds had been used because the
GDoH was still busy with the tender process to outsource these services.

[470] Whilst the answering affidavit is capable of such a reading, it would certainly
have helped to indicate that the R250 million had already been returned and same
may well have preven ted the need for some of the further supplementary affidavits .
At the same time, to the extent that in this affidavit the provincial health respondents
state that the GDoH continues to treat patients on the waiting list internally according
to the need as determined by the clinicians on site, and that such decisions as
pertaining to patients treatment and when same is to be administered and how is
entirely the decision of the clinicians who treat patients and nobody else, it hardly
explains how they manage to deal with the waiting list or, for that matter, the list
relied upon by the Alliance . I remind myself of the list of woes expressed by Dr
Ramiah in the Carte Blanche programme.

[471] To the extent that the provincial health respondents state that it is not up to
the Alliance to determine how such treatment is to be administered, when and by
who”, I agree. This surely is a matter for determination by experts in these fields and
it would have been of significant help if the GDoH did provide evidence as t o how
they managed to work out the waiting list at SBAH as well as the CMJAH with the
help of such experts as opposed to bureaucrats.

[472] With regard to paragrap h 14 of the GDoH’s supplementary affidavit Ms Turner
attacks the provincial health respondents in this regard and suggests that they are
disingenuously suggesting that the Alliance is somehow responsible for arriving at
the R250 million allocation for planning services . It is abundantly clear from the
papers that will be discussed below and the media statement issued by the
provincial health respondents on 30 April 2024 (annexure “SJM18”, pages 2 –319), in
which the provincial health respondents on their own version say that the R250
million has been allocated for the outsourcing of radiat ion oncology services.

[473] I should point out that nowhere mention is made of the backlog list although
same could be understood to include a waiting list or the backlog list. Ms Turner
denies that the Alliance is changing its version and now alleging a n unsubstantiated
new figure of R511 million . She states that the provincial health respondents, on their
own version, say that, in terms of the “ MTEF R250 million was allocated for the year
2023/2024 and R261 125 000 was allocated for the 2024/2025 year” . These two
amounts combined totalled R511 million, hence the reference to such an amount in
Alliance’s supplementary affidavit of 20 November 2024 . Leave alone the media
propaganda. She points out that the y say this funding was derived from the equitable
share (answering affidavit, paragraph 27, page 02 -145) and that, in “LT1” to the
November supplementary affidavit, the y state that the R250 million allocated in this
2023/2024 fiscal year and the R261 125 000 allocated in the 2024/2025 fiscal year
are entir ely unspent . This, of course, does not mean that the GDoH now has R511
million to spend . The fact remains that R250 million was returned to Gauteng
Treasury.

[474] Ms Turner submits that, despite substantial funding, the failure to provide
radiation oncology treatment to cancer patients on the backlog list has caused the
compelling need for the grant of the relief sought . The way I understand her affidavit
is simply thi s, that, although the R250 million may no longer be available, the
remaining relief in the notice of motion remains relevant and is even more pertinently
required, given that it has taken the GDoH so long to arrive at the point where they
are now .

[475] I bear in mind here the fact that the SLAs for the CMJAH are not yet signed
and that it is alleged that, should they be signed, it would take another year to
implement . This is, of course, coupled with the difficulty the GDoH experiences in
employing suita ble radiotherapists.

[476] Ms Turner takes issue with the notion that the answering affidavit made it
abundantly clear that the R250 million was unspent and had to be forfeited . I have
already dealt with this.

[477] She also takes issue with the notion t hat the provincial health respondents
again attempt to impute an improper motive to the Alliance for bringing the
application . As she rightly says, the GDoH cannot run away from the following
indisputable facts i.e. t hat they are constitutionally obliged t o provide radiation
oncology treatment to cancer patients , they have received, over a two -year period,
R511 million to address the radiation oncology backlog in Gauteng and to date, the
backlog has not been cleared despite receiving the funds to do so.

[478] Whilst I appreciate this is not a true reflection of the act ual funds still
available, the above vividly demonstrates the relative delay in arrivin g at a solution
for the radiology oncology backlog in Gauteng .

[479] In paragraph 15 of the GDoH supplementary affidavit in response to Ms
Turner ’s affidavit of 20 November 2024, the provincial health respondents seek to
explain their delays and the diff iculties experienced, inasmuch as same is not
already set out in the answering affidavit . They pointedly refer to the fact that
Categories 1 and 2 were re -advertised on 13 July 2024 . As stated in paragraph 73 of
the answering affidavit, Category 3, which h ad been awarded to Siemens in
February 2024, starting from May 2024, for a period of 12 months, was also
simultaneously advertised on 13 July 2024 for the appointment of service providers
who would take over the planning services from Siemens in May 2025, once the
Siemens contract expired in April 2025. That was the factual position when the
answering affidavit was filed in July 2024.

[480] They make it clear that the request for proposals, which appears at Caselines
pp 05 -09 to 05 -97, as the closing date for the submission of bids at 2 August 2024, a
period which was after the answering affidavit was already commissioned and filed
and, hence, this could not have been dealt with, being events subsequent to the
answering affidavit being filed. Nothing but a lack of openness and transparency
prevented them from updating the Court and the Alliance timeously in this regard.

[481] They also state, in this paragraph, that the events that happened after the
answering affidavit was filed had no relevance to the relief sought by the Alliance in
Part A and there was no duty on the m to disclose it to the Court by way of further
affidavits, wh ich are not permitted by the Rules of Court . This is then bolstered by
the notion that it was a complex tender involving the procurement of delicate
services and equipment and that every effort is to be made that the GDoH be as
accurate as possible and then follows the explanation about the BEC and the BAC
and the resolution of the BAC, which was annexed as annexure “AAA3”.

[482] All this is indisputable according to Ms Turner . She states that these
respondents were obliged to disclose material new facts t hat arose after the
answering affidavit was filed in July 2024, which they failed to do , and that, therefore,
the facts set out in the third supplementary affidavit remained relevant to the relief
under Part A, which is already dealt with . She also states, in response to paragraph
15.5, which is where the GDoH states that, contrary to the assertion that the tender
was abandoned, it was cancelled for the reasons stated in the BEC reports, which
were accepted by the BAC and approved by the deponent to the GDo H affidavit, that
the Alliance had tried, over several weeks, to get a clear answer from th em about
whether the tender was cancelled.

[483] They refused to provide a response to this direct enquiry . Instead, they
adopted an evasive approach . She repeats the facts set out in the supplementary
affidavit of 8 October 2024 (Caselines 02-49, 02-761, paras 7 –15). She specifically
points out that the y have failed to respond to this supplementary affidavit.

[484] To the extent that the GDoH relies on the fact that the tenders could not be
awarded because of non -compliant bids, she points out that the crucial question is
whether the ir conduct over a period of two years after receiving hundreds of millions
in funding met the legal test as set o ut in paragraph 42 of the Constitutional Court’s
judgment in the Grootboom3 case. This well known matter sets out the following in
paragraph 46:

“Within a vailable resources

[46] The third defining aspect of the obligation to take the requisite measures
is that the obligation does not require the State to do more than its available
resources permit. This means that both the content of the obligation in rela tion
to the rate at which it is achieved as well as the reasonableness of the
measures employed to achieve the result are governed by the availability of
resources. Section 26 does not expect more of the State than is achievable
within its available resour ces. As Chaskalson P said in Soobramoney :

'What is apparent from these provisions is that the obligations imposed
on the State by ss 26 and 27 in regard to access to housing, health
care, food, water, and social security are dependent upon the
resources available for such purposes, and that the cor responding
rights themselves are limited by reason of the lack of resources. Given
this lack of resources and the significant demands on them that
have already been referred to, an unqualified obligation to meet these
needs would not presently be capable o f being fulfilled.'

There is a balance between goal and means. The measures must
be calculated to attain the goal expeditiously and effectively but the availability
of resources is an important factor in determining what is reasonable.

[485] The Alliance maintains that the provincial health respondents’ conduct in the
case has fallen far short of the legal and constitutional obligations that they bear in
relation to providing radiation oncology services to cancer patients who are on the
backlog list.

3 Government of the Republic of South Africa and Others v Grootboom and Others 2001 (1)
SA 46 (CC)

[486] Now that the y are relying on Treasury Regulation 16A6.4 to enter into new
SLAs for the provision of outsourced radiation oncology services, which regulation
provides as follows:

“If in a specific case it is impractical to invite competitive bids, t he accounting
officer or accounting authority may procure the required goods or services by
other means, provided that the reasons for deviating from inviting competitive
bids must be recorded and approved by the accounting officer or accounting
authority. ”

one can but wonder why this was not done from the outset.

[487] Ms Turner takes the stance that the provincial health respondents , and
particularly the deponent as the Accounting Officer, have always had the power to
rely on this regulation and to do t he necessary deviation in order to expedite the
procurement process . The deponent now states that he has relied on this power to
ensure no further forfeiture of the R261 million allocated in the 2024/2025 fiscal year .
The implication here is quite clear and begs the question given the urgency of
providing potentially life -saving treatment, i .e. that the y did not consider using this
power sooner to prevent the forfeiture especially of allocated life -saving funds ring -
fenced for radiation oncology treatment for patients on the backlog list . She, indeed,
poses this rhetorical question.

[488] To my mind, this may well have been due to the GDoH merely being
circumspect given the sensitive nature of the matter and the issue o f specifications of
equipment that should be acquired . I am not suggesting that this should have
prevented outsourcing to the private sector or that their plan for outsourcing could
not have been compiled earlier . Their seems to me at least a measure of de lay on
the part of the GDoH, which is not fully explained and a reluctance to use the
deviation model proposed by Mr Manning.

[489] The invocation of the relevant Treasury Regulation quoted was certainly
within their reach, at least as far as the outsourc ing of the services to the private
sector was envisaged .

[490] Tenders will not deliver results as quickly as deviations might do, but it would
certainly give the GDoH a proper overview of the market and the market response
given their plans to outsource same and ensure competitiveness . But Mr Manning ’s
deviation model will always support a case of urgency. The GDoH seem not to
understand the plight of the cancer patients on the backlog list.

[491] Nevertheless , Ms Turner is of the view that the power of deviation would not
have resulted in the provincial health respon dents violating their section 217
constitutional obligations and it would not have meant that they did not follow a
proper procurement process . She maintains that if the deviation could have been
invoked earlier and expeditiously at various stages to preve nt the first allocated R250
million from being forfeited – immediately following the allocation of funds in March
2023 and later at the point it became clear to the m that Category 1 and Category 2
needed to be re -advertised in early 2024 or at any point be fore the ring -fenced funds
would have become subject to return to Treasury.

[492] I can only state, in this regard, that these points are valid and should have
informed the decisions of the GDoH.

[493] She further points out that no answers are provided by the provincial health
respondents and , given the consequences and the eventual loss of the specially
allocated funds, the ir conduct is clearly in breach of the ir constitutional obligations to
make “eff icient economic and effective use of resources” as required in section 195
of the Constitut ion.

[494] To the extent that the deponent state s, in paragraph 16 of the supplementary
affidavit, that he never refused to outsource and hence embarked upon the te nder
process, which resulted in the appointment of the current service providers and that
the GDoH made it clear that it would continue to provide the service internally as it
continues to do currently and that the outsourcing would complement its internal
mechanism of providing these services it is unhelpful especially when he does not
explain where the capacity comes from .

[495] Ms Turner makes it clear that the Alliance did not want the Department to
outsource their services without following the prescripts of procurement . She states
that the outsourcing process that the Alliance referred to was one which was
endorsed by the Nationa l Department of Health, as well as other provincial health
departments, all of which adhere to the prescripts of procurement in public
administration.

[496] She further states that the Department has invariably been unable to provide
radiation oncology tr eatment to cancer patients within the stipulated three -month
window period . It is this failure and the lack of capacity that has contributed to the
creation of the backlog list of cancer patients who are awaiting radiation oncology
treatment . Having received funds to clear this backlog, she states that it was
incumbent on the provincial health respondents to use the most efficient and
effective way to ensure that services are delivered . She clearly implies here that a
deviation process would ha ve been more appropriate.

[497] She takes issue with the GDOH in respect of paragraph 16 of its answering
affidavit, where the Department denies that it gave different responses in different
fora. She more specifically takes issue with the allegations of mootness, same being
without merit for the reasons already dealt with , and states that the provincial health
respondents failed to appreciate that the forfeiture of the R250 million does not
redound in their favour and, in fact, strengthens the Alliance’s case for the
declaratory and supervisory relief.

[498] I can only agree with this view.

[499] In paragraph 19, the Department dealt with the waiting list which it updates
daily on site as new patients come onto the waiting list and others falling out of the
waiting list for various reasons , as already dealt with . Hence, the waiting list is
fundamentally different at the time the answering affidavit was signed as opposed to
the waiting list as it stands at the time the further supplementary affidavit was s igned.

[500] Ms Turner takes up a request made by the Court in her answer hereto, to the
extent that the Court requested same and the Alliance undertook to furnish a copy of
the now outdated March 2022 list, referred to in paragraph 46 of the founding
affidavit . Given the sensitivity of the information, the Alliance would furnish the list by
memory stick to the Court . To date her eof, I have not received this list, but I assume
that, should I conclude that an appropriate order has to be made which involves this
list, it will be made available to give effect to the order.

[501] She reiterates that, as stated in paragraph 46 of the founding affidavit, around
March 2022 the lists were prepared by the Alliance consultants, with approval from
CMJAH . The list was sent to the Provincial Health Respondents, including the CEO,
Ms Gladys Bogoshi . In the July answering affidavit, the same dep onent noted the
contents of this paragraph, which is effectively an admission .

[502] Ms Turner alludes to the fact that a confirmatory affidavit will be provided from
the consultant who prepared the lists . Once compiled, the lists were also presented
to Dr Kongwana as the Cancer Crisis Task Team Chairperson on 11 March 2022, as
evidenced from annexure “RA1” . The list was subsequently shared with the task
team on 23 June 2022 and on 7 December 2022 . She points out that it is, therefore,
incorrect for the provincial health respondents to allege that the waiting list was not
shared by the Alliance, and, to this effect, the confirmatory affidavit by Salomé Meyer
was annexed as annexure “RA2”.

[503] It is thus stated that the Provincial Health Respondents have been in
possession of the backlog list since March 2022 and a further copy could be made
available should it be required with the signing of the requisite confidentiality
undertakings.

[504] Ms Turner states that, notwithstanding the aforesaid, it is important not to be
caught up in the semantics of the backlog list and waiting list . She emphasises that
what is of critical importance is that the outsourcing arrangements for radiation
oncology ser vices continues to be used for patients who fall outside of the three -
month treatment guidelines and who have been waiting for months (if not years) for
lifesaving radiation oncology treatment . This is because these funds were allocated
to eradicate Gauten g’s oncology treatment backlog and the provincial health
respondents funds can be used for new cancer patients . Thus, patients on the
backlog lists or waiting lists, who did not receive the radiation oncology services
within the three -month oncology treatm ent guidelines and are placed on the waiting
list, must be offered access to the outsourcing arrangements made available to
ensure the complete eradication of the backlog . It would appear to me that this is the
essence of the issue between the Alliance and GDoH.

[505] The GDoH’s waiting list, in not distinguishing between patients having been
on the backlog list for much longer, does not offer any outsourcing as yet, same
being subject to all the necessary requisites being put in place . What the Alliance
fears is that, once same is in place, the patients on the backlog list will not receive
the necessary preference and may well find themselves in the position that patients,
who had a shorter waiting period, find their way into the system indicated for
outso urcing, whilst the latter were supposed to be for the backlog list. To this extent,
the content of the backlog list remains important and some attempt will have to be
made to arrive at a reconciliation between the waiting list and the backlog list and the
future distinction between new patients and those already on the backlog list.

[506] Ms Turner submits that the complete eradication of the backlog list will result
in better outcomes and better service delivery for all cancer patients . New patients
would not simply be added to the back of the queue because of an existing backlog .
It will ensure the fulfilment of the right to access to health for all cancer patients . This
seems to be at the heart of the Alliance’s case.

[507] In response to paragraph 19. 3 of the supplementary affidavit filed by the
GDoH, she denies that the answers to (ii), (iii) and (iv) answer the questions posed .
She alleges that the most concerning is that, despite numerous opportunities to be
candid with the Court, the provincial health respondents failed to give any detail as to
whether they have made progress in eradicating the backlog list and state, in their
affidavit, that the list is dynamic and fundamentally different, without even explaining
why or in what way . For example, how many patients (backlog list or waiting list
patients) have received oncology services, how many have been removed, and how
many ha ve been added . None of the information would violate doctor patient
confidentiality or POPIA, yet such generic information is not even provided to the
Court .

[508] This information she submits is particularly pertinent given that the provincial
health respondents readily admit to being under -resourced and understaffed, yet
they allege that they have been treating patients on the backlog list without utilising
any of the resources made available for this purpose.

[509] She concludes that the provincial health respondents must inform the Court
as to what extent it has made progress in eradicating the backlog in oncology
treatment – and the Court ought to do so by the e xercise of its supervisory
discretion . Again, the latter goes to the heart of the issues between the Alliance and
the GDoH and one can but wonder whether the failure to reconcile the backlog list
with the waiting list or maintaining one list which differen tiates between the original
backlog list patients and later patients, is deliberate or simply a function of
bureaucratic inefficiency . I need not speculate thereon.

[510] Save that Ms Turner here, at paragraphs 20 and 54 of her affidavit, again
denies tha t the GDoH made it clear, in their July answer, that the R 250 million was
unspent and returned to provincial treasury at the end of the year, nothing new is
added.

[511] To the extent that there is criticism that the GDoH did not refer to the tender to
Siemens and is alleged to have obfuscated in their responses to the Legislature, I
need not make any finding t hereon . Suffice it to state that such a lengthy period has
come and gone since the original budget was made available that it is simply not
comprehensible why the outsourcing has not taken place as yet . To the extent that
there was reliance by the provincial health respondents on annexure “LAM5” (the
Siemens contract) , this was addressed in the A lliance’s replying affidavit .

[512] Issue is further taken by Ms Turner, in her response to paragraph 23 of the
GDoH’s supplementary answering affidavit, to the extent that same alleges that there
is nothing inaccurate in what the GDoH has said in relation to the paragraphs under
discussion and the Alliance also does not state what it is that the GDoH has said
which is inaccurate . The GDoH is content to state that they have been treating the
cancer patients on the waiting list internally and continue to do so and that the
outsourcing of these services is intended to complement what the Department is
doing internally with the treatment of ca ncer patients on the waiting list . This is
completely at variance with the notion that the backlog list patients should have been
outsourced on an urgent basis and that new patients would have been treated as
and when they arrive.

[513] To the extent that this paragraph 23 of the GDoH suggests that the tender
processes are finalised and all the service providers have been appointed, we know
this is not correct because Mr Malota na clearly indicated that it would take another
year to obtain sufficient radiot herapists . All this makes the need for outsourcing more
pressing.

[514] Ms Turner takes issue with the GDoH to the extent that it failed to specifically
say whether cancer patients who are on the backlog list are in fact treated internally .
She maintains that the broad reference to “patients on the waiting list” is unhelpful .
She maintains that the Provincial Treasury did not allocate funding to address the
“treating of cancer patients on the waiting list”.

[515] Ms Turner specifically expresses that the allocation was focussed to “address
urgently the backlog in surgical and radiation oncology services, emanating from the
shortages in both personnel and equipment, and a knock -on effect of the Covid -19
pandemic that stretched the capacity of the Gauteng he alth system” (02 -13,
annexure “SJM8, at p 02 -206).

[516] She continues, in dealing with paragraph 24 of the supplementary answering
affidavit, that the provincial health respondents try to create confusion concerning the
R511 million . There is no need to explain this figure again . I have already dealt with
same above.

[517] Ms Turner maintains that the Alliance had no knowledge prior to the service of
the answering affidav it that the R250 million was unspent and had been forfeited to
the Provincial Treasury at the end of March 2024 . This fact, it says, was only
disclosed to the Court and the Alliance in answer to the supplementary affidavit . I
again point out that a proper analysis of the procurement processes , read with the
Treasury Regulations, would have placed the Alliance on the correct track, but this, I
agree, does not detract from the section 195 obligations of the GDoH . Hence, Ms
Turner concludes that it is absurd t o suggest that the Alliance tailors its case to meet
the ne w facts when the provincial health respondents concealed this fact up until the
time that the answer was served on 28 November 2024 . They do no t say, in their
answer to the main claim, that the R25 0 million was unspent and, hence, Ms Turner
maintains that their insistence to the contrary in their answer is misleading.

[518] Ms Turner addresses the issue of annexure “LT2” allegedly being hearsay
and being unconfirmed by confirmatory affidavits and, therefore, having no
evidentiary value . She denies same and contents herself with the fact that the
contradictions are set out in her supplementary affidavit (presumably that of
20 November 2024) and, hence, she does not repeat same.

[519] As for the rest, Ms Turner takes note of the allegations made by the GDoH in
its supplementary affidavit . The fact, however, remains that R261 million of the
2024/2025 fiscal year is currently unspent and will now be spent in terms of the
service providers provided for in annexure “AAA4” as long as the GDoH is able to
have commitments made in the form of processing orders before the end of the
2024/2025 fiscal year .

[520] On balance, having had regard to the supplementary affidavit filed by the
GDoH, together with the earlier affidavits which I have still to deal with, I am far from
persuaded that the spending of any further funds should go unmonitored and without
any refer ence to the issues raised by the Alliance . I will deal with these conclusions
in more detail further on.

The Law

[521] Both the Alliance and the GDoH have provided me with extensive heads of
argument.

Urgency

[522] I assessed the matter when it was all ocated to me and after hearing argument
and having read both parties heads of argument and the supplementary heads of
argument initially suspected that to some extent the Alliance overestimated the
urgency when it set the timeframe within which the GD oH had to file its answer ing
affidavit and it would file its replying affidavit.

[523] As the enormity of the task became apparent and it was forced to invoke relief
from the DJP to obtain a special motion date on short notice, an indu lgence which is
difficult to obtain in this division it became clear to me that the concept of urgent
redress on the facts of this matter is more fact specific than usual. If the Court had
the capacity the matter would probably have been heard much earlier given the
plight of the patients on the backlog list who have been deprived of radiation
oncological treatment for so long that repeated surgeries and repeated
chemotherapy virtually became routine and early death at times became inevitable
because the GDoH for the reasons dealt with above cannot cope with the influx of
cancer patients. To add insult to injury these patients ’ constitutional rights have been
trampled upon by the GDoH in that the ring fenced funds specifically intended for
these patients and made available in April 2023 were lost due to the GDoH’s failure
to outsource the radiation oncology service and spend such funds urgently before
the annual obligation to return funds to Treasury came up .

[524] Given that the need for redress became dire in the above context and the test
stated in East Rock Trading 7 (Pty) Ltd v Eagle Valley Granite (Pty) Ltd 4 is in my
opinion of persuasive force i.e.

“The correct and the crucial test is whether, if the matter were to follow its
normal course as laid down by the rules, an Applicant will be afforded
substantial redress. ”


4 2011 JDR 1832 (GSJ) par 8
[525] It is a normal requirement that parties should at least try and resolve their
issues before they come to court. This the Alliance attempted to do as we saw in the
various exchanges of correspondence dealt with above and in particular on 5 June
2024 reached a stage where the GDoH simply ignored their emails and specific
request s to make use of a deviation process to acquire the requisite outsourcing of
the radiation oncological service. The above attempts led to the Alliance only
launching the present proceedings on 27 June 2024. This created the impression of
unnecessary delays which may at times preclude a finding of urgency.

[526] The Alliance’s reliance on the decision in Quick Drink Co (Pty) Ltd and
Another v Medicines Control Council and Others 5 addresses this as follows:

“[12] When one has regard to the time line of events, to which reference has
already been made, then the first applicant, from the time the consignment
was seized, acted reasonably and prudently in pursuing its rights and trying to
resolve the matter. This included correspondence and meetings with the
respondents, as well as its own enquiries with regard to the manner in which
the Medicines Act had been applied and enforced. I am accordingly satisfied
that the matter is urgent, regard being had both to the n ature of the relief
claimed, as well as the manner in which the first applicant acted to assert and
protect against what it regarded as an infringement of its proprietary rights. ”

[527] I do not believe the delays before coming to Court were excessive.

[528] Any urgent application should always be scrutinised for queue -jumping.
Given that it passed the above tests same does not arise.

[529] The GDoH submitted i.a. that it is prejudiced and that the interim relief in Part
“A” could have waited till the r elief sought in Part B is heard. The facts scrutinised
above suggests that these submissions are baseless.


5 2015(5) SA 358 on p 36 2
[530] In the circumstances I find that the matter is urgent as meant in Rule 6(12) of
the Uniform rules of Court;

[531] Given that the Alliance is litigating against a State Organ and the State should
be setting the example as far as compliance with its Constitutional duties are
concerned the standards a State Organ should adhere to are onerous. The conduct
of the GDoH at t imes did not meet these high standards. I do not refer to any case
law in this regard given that the aforesaid is by now trite law. Its conduct on the
merits have been referred to in appropriate places hence I will not repeat same here.

[532] It should n evertheless be stated that the taking of technical points such as the
raising of baseless hearsay objections, far -fetched non -joinder points, delaying the
production of a record of decision in a review matter (even where the court is not
seized of same) and the failure to comply with a Rule 35(12) notice are all examples
of conduct a State Organ should not lightly become involved in.

[533] There were other objections raised by the Alliance which led to a strike out
application by the Alliance which was su ccessfully warded off by the GDoH for the
reasons set ou t above. The fact that it made objections of abuse of process and
conducts itself as if it is a law unto itself and play loose and fast with confidential and
medical information which may affect a person’s dignity does not suggest that the
GDoH is as far as this case is concerned the Constitution’s primary agent who does
right and does it properly.

[534] I have referred to the Strike out Application and have dismissed same for t he
reasons given above. The costs must follow the result and the provincial health
respondents is awarded costs against the Alliance on the party and party scale “C”
and the costs are to include that of 2 counsel one of which is Senior Counsel.

[535] I have analysed the National Health Act and POPIA above and concluded that
neither is an obstacle preventing the Alliance or the GDoH from sharing the backlog
list with each other. Interestingly the GDoH did not invoke POPIA when the Alliance
shared and compil ed the backlog list with its help. The type of information that is
shared is done so between a private and public body for statistical reasons and will
be authorised by a Court Order. I have held that Mses “V”, “W” and “X” waived their
rights when they fil ed their detailed affidavits given the extensive disclosures made
and cannot expect the GDoH to defend itself with its hands tied behind its back. In
any event the hospital records disclosed a minimal of additional facts regarding their
health and medical history. In addition POPIA permits the use of such information in
defence of the GDOH ’s rights.

[536] I must also determine whether the relief sought in paragraph 5 of Part “A” of
the Notice of Motion is moot. The R250 million ring -fenced funds have been returned
to Treasury as per the usual practice. Interdicts are for future events a nd not
intended for cases where the horse has already bolted. Nobody made out a case for
rollover of the unspent funds. The Court cannot interfere with the functioning of the
usual principle that unspent funds reverts to Treasury at the fi scal year end. I have
considered the is sues raised in this regard in AB and Another v Pridwin Preparatory
School and Others 6 where the Constitutional Court said the following about
mootness:

“[50] The general principle is that an application is moot when a court's ruling
will have no direct practical effect. Courts exist to determine concrete legal
disputes and their scarce resources should not be frittered away by
entertaining abstract proposi tions of law, however engaging. Typically, this
court will not adjudicate an appeal if it no longer presents an existing or live
controversy, and will refrain from giving advisory opinions on legal questions
which are merely abstract, academic or hypotheti cal and have no immediate
practical effect or result. This principle was recently reiterated in President of
the Republic of South Africa . There, it was held that 'courts should be loath to
fulfil an advisory role, particularly for the benefit of those wh o have
dependable advice abundantly available to them and in circumstances where
no actual purpose would be served by that decision'.

[51] But that is not the end of the matter because 'mootness is not an absolute
bar to deciding an issue . . . the ques tion is whether the interests of justice

6 2020 (5) SA 327 (CC) par 50 -53
require that it be decided'. In class actions or public interest litigation, the
decisions pertaining to the rights contained in the Bill of Rights can have a far -
reaching practical effect on many others.

[52] In Langeberg Municipality , this court formulated the test for adjudicating a
moot matter in these terms:

'This court has a discretion to decide issues on appeal even if they no
longer present existing or live controversies. That discretion must be
exercised a ccording to what the interests of justice require. A
prerequisite for the exercise of the discretion is that any order, which
this court may make, will have some practical effect either on the
parties or on others. Other factors that may be relevant will i nclude the
nature and extent of the practical effect that any possible order might
have, the importance of the issue, its complexity and the fullness or
otherwise of the argument advanced.'

[53] The interests of justice test, to determine mootness, has be en reiterated
several times by this court. In POPCRU , it was held that the discretion is
based upon a number of factors which include, but are not limited to,
considering whether the order may have some practical effect, and if so, its
nature or importance to the parties or to others . The prospects of success are
an additional consideration, which, although important are not decisive in
determining whether it would be in the interests of justice to adjudicate the
matter, notwithstanding its mootness”

[537] I have scrutinised the above matter s and accept that to the extent that the
interest s of justice calls fo r interference I am at large to do so but not where I am
interfering with the normal functioning of Treasury exercising its statutory powers . I
may of course scrutinise the events that resulted in the forfeiture to see if same
speaks of constitutional compl iance and if not utilise the fact of such a failure to
justify any other type of order such as a declarator.

Requirements for Interim Relief

[538] The requirements for interim relief ha ve crystallised over the years and are
trite.

[539] The existence of a prima facie right although open to some doubt.

[540] The existence of a well - grounded apprehension of irreparable harm if the
interim relief is not granted and the final relief is ultimately granted.

[541] Whether t he balance of convenience favours the granting of the interim relief
and the party has no other satisfactory remedy.

[542] The purpose is usually to preserve or to restore the status quo .

[543] The requirements for the grant of mandatory relief are the same as those for
the granting of ordinary interdictory relief.

[544] The above elements are also as stated in National Treasury and Others v
Opposition to Urban Tolling Alliance and Others 7

[545] The elements are interrelated : the stronger the prospects of success the lower
the prejudice required. T he Alliance has to prove its right although open to some
doubt. For this I am to consider the case made out by the Alliance together with the
facts that the GDoH cannot dispute having regard to the inherent probabilities and
consider whether the Alliance will on those facts establish final relief at trial and
decide if the applicants can succeed.

[546] In Simon NO v Air Operations of Europe Ab and Others 8 the court held as
follows as regards interim interdicts :

“Insofar as the appellant also sought an interim interdict pendente lite it was
incumbent upon him to establish, as one of the requirements for the relief

7 2012 (6) SA 223 (CC)
8 1999 (1) SA 217 (SCA) at 228 F -I
sought, a prima facie right, even though open to some doubt (Webster
v Mitchell 1948 (1) SA 1186 (W) at 1189 ). The accepted test for a prima
facie right in the context of an interim interdict is to take the facts averred by
the applicant, together with such facts set out by the respondent that are not
or cannot be disputed and to consider whether, having regard to the inherent
probabilities, the applicant should on those facts obtain final relief at the trial.
The facts set up in contradiction by the respondent should then
be considered and, if serious doubt is thrown upon the case of the applicant,
he cannot su cceed. (Gool v Minister of Justice and Another 1955 (2) SA 682
(C) at 688B —F and the numerous cases that have followed it.)”

[547] In South African Informal Traders Forum and Others v City of Johannesburg
and Others 9 it was held that:

“[25] A prima facie right may be established by demonstrating prospects of
success in the review. ”

[548] The harm must be anticipated or ongoing harm. This follows from Tshwane
City v Afriforum and Another10 and in the same matter at para 55 it was held that

“Within the context of a restraining order, harm connotes a common -sensical,
discernible or intelligible disadvantage or peril that is capable of legal
protection. It is the tangible or intangible effec t of deprivation or adverse
action taken against someone. And that disadvantage is capable of being
objectively and universally appreciated as a loss worthy of some legal
protection, however much others might doubt its existence, relevance or
significance. Ordinarily the harm sought to be prevented through interim relief
must be connected to the grounds in the main application”

[549] At para 59 of the same matter the Court said the following about the
“irreparable harm” :


9 2014 (4) SA(C 016C) at para 25
10 2016 (6) SA 279 (CC)
“Irreparable implies that the effects or consequences cannot be reversed or
undone. Irreparable therefore highlights the irreversibility or permanency of
the injury or harm. That would mean that a favourable outcome by the court
reviewing allegedly objectio nable conduct cannot be an order that would
effectively undo the harm that would ensue should the interim order not be
granted”

[550] At least two competing interests have to be weighed.11

[551] “Balance of convenience

[62] Afriforum is required to establish that the balance of convenience favours
the grant of the interim interdict. This requirement recognises that in an
application for a temporary restraining order there will invariably be at least
two competing interes ts. And those interests are inextricably linked to the
harm a respondent is likely to suffer in the event of the order being granted
and the harm likely to be suffered by an applicant if the relief sought is not
granted.”

[552] The harm that will be suffe red by the applicant if the interim relief is not
granted must be weighed first as against the harm a respondent would bear if the
interdict is granted12

[553] In striking the balance, the prospects of either party being s uccessful are
weighed against the prospect of each party suffering harm as a result of the Court
either interfering or alternatively not granting interim relief, the seriousness and
irreparability of the harm, the difficulties of proving the extent of any harm, and the
risk of not recovering the amount thereof. 13


11 2016 (6) SA 279 (CC) para 62
12 National Treasury supra para 55
13 Eriksen Motors (Welkom) Ltd v Protea Motors, Warrenton and Another - 1973 (3) SA 685 (A) at 691
D-E

The exercise of the discretion on a balance of a convenience has been expressed as
follows:14

It thus appears that where the applicant's right is clear, and the other
requisit es are present, no difficulty presents itself about granting an interdict.
At the other end of the scale, where his prospects of ultimate success are nil,
obviously the Court will refuse an interdict. Between those two extremes fall
the intermediate cases in which, on the papers as a whole, the applicants'
prospects of ultimate success may range all the way from strong to weak. The
expression ' prima facie established though open to some doubt' seems to me
a brilliantly apt classification of these cases. In such cases, upon proof of a
well grounded apprehension of irreparable harm, and there being no
adequate ordinary remedy, the Court may grant an interdict - it has a
discretion, to be exercised judicially upon a consideration of all the facts.
Usually this will resolve itself into a nice consideration of the prospects of
success and the balance of convenience - the stronger the prospects of
success, the less need for such balance to favour the applicant: the weaker
the prospects of success, the greater the n eed for the balance of convenience
to favour him. I need hardly add that by balance of convenience is meant the
prejudice to the applicant if the interdict be refused, weighed against the
prejudice to the respondent if it be granted.”

[554] Where the Appl ication is brought in two parts the Court need not determine
the cogency of the review grounds.15

Prima facie right

[555] When the allocation of R 784 million was announced in March 2023, Gauteng
Provincial Treasury explicitly stated that the money would be used to "clear the
backlog". GDOH then on the basis that this was the full 3 year MTEF budget ensured
that R250 million was ring -fenced for purposes of outsourcing radiation oncology
services for clearing the backlog of cancer patients awaiting same. It then with the

14 Olympic Passenger Service (Pty) Ltd v Ramlagan - 1957 (2) SA 382 (D) at 383D -G
15 National Treasury supra para 31
full knowledge that it may use Treasury Regulation 16A6.4 as a basis to procure
services in other ways than tenders in urgent cases embarked on a tender process
which ultimately delivered only an award of category 3 planning services and for the
reasons disclosed above failed in respect of category 1 and 2 of the tender. This it
did under circumstances where it was made aware of the urgency of the cancer
backlog patients plight (some received no radiation oncology treatment post surgery
on multiple occasions). The GDoH was aware of the fact that approximately 3
months post surgery such patients should receive radiation o ncology treatment. Prior
hereto it was exposed to a Mr Manning from National Health who demonstrated to
the Task Tea m how urgent procurement can be done by way of using a “call for
services” as was done during Covid -19. To equate the crisis of the cancer patients
on the backlog with Covid -19 is not an exaggeration in my view given that the failure
to supply the radiation oncology treatment timeously often leads to earlier death .

[556] The tender was advertised on 20 October 2023 – approximately 6 months
after the fu nds referred to above was made available. The numerous interruptions in
the tender process led to so many delays that only the limited award was possible
whilst a process applying deviation as suggested by Mr Manning was lawful and
achievable in the period the tender process struggled on. I am satisfied that the
procurement process as suggested by Mr Manning would be compliant with section
217 of the Constitution given the prevailing urgency. The fundamental purpose
behind the ring -fenced funds were to ensure that the radiation oncology treatment is
outsourced to benefit the cancer patient on the backlog list as originally compiled in
late 2022 (and was even updated by the GDoH in 2023).

[557] The award of t he Category 3 planning services was made to Siemens whilst
no technical radiation oncological service was awarded or any category 1 outsourced
radiation treatment service could ultimately be awarded. Prior to this tender the
Alliance expected that an exp edited deviation methodology for procurement would
be followed as it thought was agreed with the provincial health respondents.

[558] The cancer patients on the backlog list enjoy the same section 27 rights any
other citizen enjoys. They however became t he beneficiaries of the ring -fenced funds
which was to be used for outsourcing to benefit them on an urgent basis. Whilst this
was the expectation their Constitutional rights under sections 7(2), 33 and section
195 also remained in place, Notwithstanding t he aforesaid and without any justifi able
reason the provincial health respondents ignored their right to enjoy an outsourced
radiation oncology treatment which also flowed from the ring -fenced funds made
available for the specific purpose , the underlying reasoning being that the situation is
so urgent that this outsourcing could be procured by way of deviation and by
motivating an approval for the use of Treasury Regulation 16A6.4 to auth orise
deviation.

[559] Further all attempts by the Alliance to persuade the GDoH to communicate
about the tender approach was ignored as well as the demands made by Ms M apipa
on its behalf to rather use a deviation process , as referred to and urgently procure
the outsourced radiation oncology treatment. In so doing the Alliance and the
patients on the cancer backlog list’s rights under section 195 of the Constitution was
infringed by the provincial health respondents in that a high standard of professional
ethics were not maintained, efficient, economic and effective use of resources were
not promoted, services were not provided impartially, fairly, equitably and without
bias. and their needs were not responded to , they were n ot accountable and
transparency was not fostered by providing timely, accessible and accurate
information.

[560] All the aforesaid infringements ultimately caused the ring -fenced funds to be
returned to Treasury given that by the end of the fi scal year all R250 million
remained unspent.

[561] This while the State is obliged in terms of section 7(2) of the Constitution t o
respect, protect, promote and fulfil the rights in the Bill of Rights, including the
section 27 right to healthcare.

[562] The obligation incorporates negative and positive duties: the State has
positive obligations to take active steps to promote and e nsure the right is protected
and fulfilled; and negative obligations in that it may not take steps that undermine
that right,

[563] As a matter of law, all decision -making by the State constituting the exercise
of a public power or performance of a public function (as is the case here) must, at a
minimum, comply with the prescripts of the rule of aw, and more particularly the
constitutional principle of legality.

[564] Where such decision -making constitutes administrative action, the State's
decision -maki ng must be lawful, reasonable and procedurally fair in accordance with
section 33 of the Constitution, read with PAJA.

Irreparable harm

[565] The cancer patients on the backlog list are facing life -threatening illness. If
they do not receive the radiation oncology treatment, they may not survive. In the
absence of such treatment, their health continues to deteriorate significantly.

[566] Backlo g list patients have already passed away , waiting for such treatment
that has not been forthcoming. Actual, irreparable harm has already occurred,
continues to occur and is reasonably apprehended.

[567] The provincial health respondents, however, ignore t his. They allege that the
applicant suffers no harm with the awarding of the tender to Siemens Healthcare.

[568] To the extent that the Alliance’s constituency may suffer harm, that harm they
say is minimised in that it has launched a review application a nd all the issues raised
will be dealt in the review. The harm is not a "real" harm because the review will
address the issues raised .

[569] The provincial health respondents simply do not engage with the case made
out in that regard. The provincial health respondents appear insensitive and
dismissive of the actual harm that has been - and is being - suffered by the cancer
patients on the backlog list, to whom they owe (undisputed) constitutional
obligations.

[570] Cancer patients who are on the backlog list are facing life -threatening illness.

[571] The A lliance has a reasonable apprehension of imminent and irreparable
harm that the cancer patients who are on the backlog will suffer, if this Court does
not intervene to en sure that they receive potentially life -saving radiation oncology
treatment.

The balance of convenience favours the applicant

[572] In considering where the balance of convenience lies, a court must first weigh
the harm to be endured by an applicant, if interim relief is not granted, as against the
harm the provincial health respondents will bear. if the interdict is granted.
Importantly, a court must assess all relevant factors carefully in order to decide
where the balance of convenience rests.

[573] The provincial health respondents maintain that it is not convenient for the
interim interdict to be granted. The issues raised by the Alliance will be dealt with in
due course when the review application is heard.

[574] The Alliance denies that the balance of convenience falls against it. The
interim interdict is intended to ensure t har the backlog patients actually receive some
outsourced treatment.

[575] The provincial health respondents have don e nothing meaningful since th e
money was allocated in March 2023 to actually provide radiation oncology treatment
to the cancer patients. On the other hand, the health and general well -being of the
cancer patients has significantly deteriorated There is a clear, imminent and ongoing
irreparable harm that cancer patients who are on the backlog list are suffering. That
has now become worse since the ring -fenced funds have been returned to Treasury.

[576] If the interim interdict is not granted, there is a real risk that -the backlog list
patients will not receive radiation oncology treatment in the immediate future (and at
least until the tenders for the delivery of radiation oncological treatment are actually
being executed );

[577] The provincial health respondents have done nothing meaningful since March
2023 to provide radiation oncology treatment to cancer patients who are on the
backlog list.

[578] If the Alliance is successful under Part A and do es not succeed under Part B,
there can be no prejudice to the provincial health respondents.

[579] There can be no prejudice to the provincial health respondents if the interi m
relief is granted - they are in any event constitutionally obliged to provide radiation
oncology treatment to the backlog list patients in respect of whom money has
already been allocated for that specific purpose. Whether that money is spent now or
at a later date after the review application is determined (even if the Alliance is
unsuccessful) will have no impact on the provincial health respondents. The
provincial health respondents are not called upon to allocate more funds than have
already been allocated, or to re -prioritise their policy or other objectives to
accommodate the b acklog patients. They are not called upon to spend the allocated
funds for any purpose other than that for which the allocation was made. Even if the
applicant is ultimately unsuccessful in the relief in Part B, the money spent will have
been used in the m eantime to provide potentially life -saving treatment to the backlog
list patients.

[580] The balance of convenience favours the grant of the interim interdict.

No other remedy

[581] The provincial health res pondents maintain that if the Alliance is not granted
relief at this stage, it will have the opportunity to ventilate its case on its review
application.

[582] The Alliance has been trying since 2020 to engage with the provincial health
respondents, to en sure that cancer patients on the backlog list receive radiation
oncology treatment.

[583] Since June 2023, the provincial health respondents have refused to engage
with the applicant. On 4 June 2024, the Alliance sent a further letter to the provincial
health respondents, in the effort to avoid litigation.

[584] The provincial health respondents failed to respond. 151

[585] The Alliance had no other remedy but to approach this Court for interim relief.

The Declaratory Relief

[586] The Alliance seeks a declarator that the provincial health respondents failure
to devise and implement a plan to provide radiation oncology treatment to cancer
patients who are on the backlog list, is unconstitutional and unlawful.

[587] The requirements in respect of the granting of declaratory order are two-fold.
16 The court must be satisfied that the applicant has an existing, future or contingent
right or obligat ion, and once a court is so satisfied, it must be considered whether or
not the order should be granted.

[588] When considering the grant of declaratory relief, the court will not grant such
order where the issue raised before it is hypothetical, abstract and academic, or
where the legal position is clearly defined by statute.

[589] The provincial health responden ts have a constitutional obligation to provide
access to health care services as set out in section 27 of the Constitution.

[590] In this case, the provincial health respondents received R784 million in March
2023 to address the radiation oncology backlog in the province. The applicant's case
is that having received this funding, the provincial health respondents are yet to
provide t imeous radiation oncology treatment to cancer patients who are on the back
log list.


16 Cordiant Trading CC v Daimler Chrysler Financial Services (Pty) Ltd - 2005 (6) SA 205 (SCA)
[591] The provincial health respondents failure, in the present circumstances, to
provide radiation oncology treatment to cancer patients who are on the backlog list,
is in breach of section 27 of the Constitution and is unconstitutional and unlawful.
The issue as to whether the violation is justifiable under section 36 of the
Constitution does not arise, because the provincial health respondents do not
concede that their conduct is in violation of section 27 of the Constitution.

[592] A declarator ought to be issued to protect the health care rights of cancer
patients

Requirements for a Structural Interdict

[593] A declaratory order, as set out in prayer 2 will not, of itself amount to "effective
relief' within meaning of section 38 of the Constitution, to address the violation of the
health -care rights of cancer patients who are on the backlog list. Section 38 of the
Constitution, to the extent relevant, provides:

"38 Enforcement of rights

Anyone listed in this section has the right to approach a competent court,
alleging that a right in the Bill of Rights has been infringed or threatened, and
the court may gr ant appropriate relie f, including a declaration of rights."

[594] The Alliance submitted that t he provincial health respondents ought to be
ordered to file reports with this Court to describe the steps it will take to ensure that
timeous radiation oncolog y treatment is provided to cancer patients who are on the
backlog list and, in the long-term to provide radiation oncology treatment to cancer
patients.

[595] Our courts have imposed supervisory orders where there has been a breach
of constitutional righ ts and a need to ensure accountability by the State.

[596] Our courts have grappled with what amounts to effective relief in cases where
there has been a violation of constitutional rights. lt is beyond dispute, that ou r courts
have recognised that where the need exists, a supervisory order, coupled with a
reporting obligation, may be ordered. ln Minister of Health v Treatment Action
Campaign (No.2), the Constitutional Court recog nised that a structural interdict falls
within a court's power when granting effective relief. Although the Constitutional
Court did not impose a supervisory order, it held:

" ... We thus reject the argument that the only power that this Court has in the
present case is to issue a declaratory order. Where a breach of any right has
taken place, including a socio -economic right, a court is under a duty to
ensure that effective rel ief is granted. The nature of the right infringed and the
nature of the infringement will provide guidance as to the appropriate relief in
a particular case. Where necessary this may include both the issuing of a
mandamus and the exercise of supervisory jurisdiction. “17

160. The Constitutional Court went on to hold that:

“[129] The order made by the High Court included a structural interdict
requiring the appellants to revise their policy and to submit the revised policy
to the Court to enable it to satisfy itself that the policy was consistent with the
Constitution. In Pretoria City Council this Court recognised that Courts have
such powers. In appropriate cases they should exercise such a power if it is
necessary to secure compliance with a court order. That may be because of a
failure to heed declaratory orders or other relief granted by a Court in a
particular case. We do not consider, however, that orders should be made in
those terms unless this is necessary. The government has always respected
and executed or ders of this Court. There is no reason to believe that it will not
do so in the present case. ”18


17 Minister of Health and Others v Treatment Action Campaign and Others (No 2) 2002 (5) SA 721
para 10 6 and see also at para 113.
18 See also para 129
[597] The Constitutional Court has developed the supervisory interdict to include a
reporting obligation in cases where there was a need to ensure accountability ,
transparency and openness.19

[598] In Allpay Consolidated Investment Holdings (Pty) Ltd and Others v Chief
Executive Officer, South African Social Security Agency and Others
the Constitutional Court held that:

"Apart from these aspects, further disciplined accountability is needed in the
initiation and execution of the new tender process. This needs to be
monitored. This court has wide remedial powers to ensure effective relief for a
breach of a constitutional right. In light of the importance of the right to social
security and the impact on and potential prejudice to a large number of
beneficiaries, the public clearly has an interest in ensuring that the tender is
rerun properly. In these circumstances it is appropriate to impose a structural
interdict requiring SASSA to report back to the co urt at each of the crucial
stages of the new tender “

[599] I was also referred to the decision in Pheko v Ekurhuleni Metropolitan
Municipality (Socio -Economic Rights Institute of South Africa Amicus Curiae)
where the Court held that20

“Supervisory orders arising from structural interdicts ensure that courts play
an active monitoring role in the enforcement of orders. In an appropriate case,
this guarantees commitment to the constitutional values of accountability,
responsiveness and open ness by all concerned, in a system of democratic
governance. By granting the structural interdict a court secures a response in
the form of reports and thereby prevents a failure to comply with the positive
obligations imposed by its order. Generally, the court's role continues until the
remedy it has ordered in a matter has been fulfilled ”


19 2014 (4) SA 179 (CC)
202016 JDR 1357 (CC) para 1

[600] In Mwelase v DG Department of Rural Development 21 the Constitutional
Court held

[601] “In cases that cry out for effective relief, tagging a function as administrative or
executive, in contradistinction to judicial, though always important, need not always
be decisive. For it is crises in governmental delivery, and not any judicial wish to
exercise power, that has required the courts to explore the limits of separation of
powers jurisprudence. When egregious infringements have occurred, the courts
have had little choice in their duty to provide effective relief. That was so in Black
Sash I , and it is the case here. In both, the most vulnerable and most marginalised
have suffered from the insufficiency of governmental delivery.

[49] The vulnerability of those who suffer most from these failures underscores how
important it is for courts to cra ft effective, just and equitable remedies, as the
Constitution requires them to do. In cases of extreme rights infringement, the
ultimate boundary lies at court control of the remedial process. If this requires the
temporary, supervised oversight of admini stration where the bureaucracy has been
shown to be unable to perform, then there is little choice: it must be done. Here, the
fact that the Department's tardiness and inefficiency in making land reform and
restitution real has triggered a constitutional n ear-emergency, as explained
earlier. This fact underscores the need for practically effective judicial intervention

[602] The facts in th e present matter fall within the meaning of "egregious
infringements" as discussed above. The cancer patients who are on the backlog list
are vulnerable and remain on the margins of the public healthcare system. Their
health continues to deteriorate in the absence of tlmeous radiation oncology
treatment. Absent judicial intervention and oversight, there remains no other
meaningful method for cancer patients who are on the backlog list to access
potentially life -saving radiation oncology treatment. The Alliance , despite its best
efforts since 2020, has been unable to meaningfully engag e with the provincial
health respondents to get it closer to formulating and/or implementing a plan to treat
cancer patients who are on the backlog list.

212019 (6) SA 597 (CC)

[603] The provincial health respondents have conducted themselves as a law unto
themselves and have d ecided it inappropriate to be held to account to the applicant,
who has been acting in the public interest. Underpinning all of this, is the compelling
need for a mechanism to be put in place to ensure that the provincial health
respondents are indeed held to account for their constitutionally imposed obligation
to provide health -care services, which by its very nature, includes the provision of
life-saving radiation oncology treatment to cancer patients who are on the backlog
list.

[604] I accept that it is necessary for a supervisory interdict to be issued in this
matter. The provincial health respondents have not been providing radiation
oncology treatment timeously.

[605] The backlog has developed to such an extent that some cancer patients have
been p laced on the list and have been awaiting treatment for the past three years (if
not longer) . The Alliance has repeatedly requested that updates in relation to the
backlog lists be made only to hear about the notional waiting lists.

[606] This Court's supervisory role, with reporting obligations imposed on the
provincial health respondents, is in my view warranted in this matter.

Costs

[607] The provincial health respondents may have not conducted themselves as
showcase Constitution compl iant litigants but I do not believe an attorney and client
costs order against them is warranted. The Courts are under pressure to keep am
eye on costs inflation and therefore I am more inclined towards a party and party
scale order. The matter is compl ex and therefore I believe a party and party costs
order is warranted but on Scale “C” including the costs of two counsel.

Hence I make the following order:

Interim Order

1. The matter is urgent and heard as one of urgency in terms of Rule 6(12) of the
Uniform Rules of Court, and forms and service provided for in the rules are
dispensed with to the extent necessary ;

2. The Strike out Application is dismissed and the provincial health respondents are
awarded costs against the Alliance on the party and party Scale C same to include
the costs of 2 Counsel one of which is Senior Counsel;

3. The First, Second, Seventh and Eighth Respondents ’ failure to devise and
implement a plan to provide radiation oncology services at Charlotte Maxeke
Johannesburg Academic Hospital and Steve Biko Academic Hospital timeously (after
receiving ring -fenced funding for same) in Gauteng to ca ncer patients on the backlog
list is declared to be unlawful and unconstitutional and in breach of section s 7(2), 27,
33 and 195 of the Constitution.

4. The Applicant is directed deliver to the Second Respondent a copy of the backlog
list as it existed after it was compiled by itself;

5. The First, Second, Seventh and Eighth Respondents are directed to update the
backlog list of cancer patients who are awaiting radiation oncology services in
Gauteng within 45 days from the date of this order and maintain its POPIA
compliancy and broken down by hospital ;

6. The First, Second, Seventh and Eighth Respondents are directed to take all steps
necessary to provide radiation oncology services to backlog list patients who are
awaiting treatment at Charlotte Maxeke Johannesburg Academic Hospital and Steve
Biko Academic Hospital in Gauteng at a public and/or private facility;

7.The First, Second, Seventh and Eighth Respondents are directe d to file an
updated report within 3 months from date of this order detailing the following:

7.1. A progress report on the steps taken to provide radiation oncology
services to cancer patients who are on the backlog list in Gauteng ;

7.2. A progress repor t on the First Respondent's long -term plan to provide
radiation oncology services to cancer patients at Charlotte Maxeke Academic
Hospital and Steve Bike Academic Hospital .

8. In the event that the First Respondent fails to comply with the orders set out in
paragraphs 4 to 7 above, the Applicant is entitled to re -enroll the matter on the same
papers duly supplemented to the extent necessary and where necessary to make
use of o ncology radiotherapy medical experts;

9. The Applicant is granted leave to supplement the application in relation to the
relief sought in Part B of the application ;

10. Orders 2 – 9 will remain in place until the relief sought in Part B as it stands at
present or may be amended has finally been disposed of;

11. The First, Second, Seventh and Eighth Respondents are directed to pay the
Applicant's costs under Part A, on scale C as between party and party with such
costs to include the costs of 2 counsel ..


____________________________
S VAN NIEUWENHUIZEN, AJ
ACTING JUDGE OF THE HIGH COURT
JOHANNESBURG


Date of Hearing: 21 November 2024
Date of Judgment: 2 7 March 2025

Representation for Applicant Adv L Zikalala
Adv J Griffiths
Adv F Mahomed

Instructed by: Section 27,
Attorneys for the Applicant,
First Floor,
South Point Corner Building,
87 De Korte Street,
Braamfontein,
Johannesburg,
Tel:011 356 4100
Email: mapipa@section27.org.za

Representation for First, Second : Adv W Mokhare S.C.
Seventh and Eight Respondent : Adv M.H. Mhambi

Instructed by Motsoenemg Bill Attorneys Inc,
First, Second, Seventh and Eighth Respondents ’
Attorneys,
85 Western Service Road
Wendywood , Sandton 2190,
Tel: 011 463 9401
E-Mail:aristidis@mbaincorporated.co.ca
admin@mbaincorporated.co.za
tamara@mbaincorportated.co.za
REF: MAT 3085