IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, JOHANNESBURG)
{l) REPORTABLE: YES
(2) OF INTEREST TO OTHER JUDGES: YES
(3) REVISED.
SIGNATURE DATE: 4 December 2025
In the matter between:
TREATMENT ACTION CAMPAIGN
MEDECINS SANS FRONTIERES
KOPANANG AFRICA AGAINST XENOPHOBIA
and
FACILITY MANAGER, YEOVILLE CLINIC
FACILITY MANAGER, ROSETTENVILLE CLINIC
CITY OF JOHANNESBURG
ACTING MUNICIPAL MANAGER,
CITY OF JOHANNESBURG
MEMBER OF THE MAYORAL COMMITTEE FOR
HEALTH AND SOCIAL DEVELOPMENT, CITY OF
JOHANNESBURG
MEMBER OF THE MAYORAL COMMITTEE FOR
PUBLIC SAFETY, CITY OF JOHANNESBURG
MEC FOR HEALTH, GAUTENG
Case No. 2025-181893
First Applicant
Second Applicant
Third Applicant
First Respondent
Second Respondent
Third Respondent
Fourth Respondent
Fifth Respondent
Sixth Respondent
Seventh Respondent
2
HEAD OF DEPARTMENT: GAUTENG DEPARTMENT
OF HEALTH Eighth Respondent
MINISTER OF HEALTH Ninth Respondent
DIRECTOR GENERAL, DEPARTMENT OF HEALTH Tenth Respondent
NATIONAL POLICE COMMISSIONER Eleventh Respondent
PROVINCIAL POLICE COMMISSIONER,
GAUTENG PROVINCE Twelfth Respondent
STATION COMMANDER,
YEOVILLE POLICE STATION Thirteenth Respondent
STATION COMMANDER,
MOFFATVIEW POLICE STATION Fourteenth Respondent
STATION COMMANDER,
BOOYSENS POLICE STATION Fifteenth Respondent
SOUTH AFRICAN HUMAN RIGHTS COMMISSION Sixteenth Respondent
Summary
The Constitution – socio-economic rights – overarching duty to take positive steps to
eliminate barriers of access to healthcare services – duty infuses the apportionment
of statutory roles.
Separation of powers – the decision in National Treasury v Opposition to Urban Tolling
Alliance 2012 (6) SA 223 (CC) applies to interim restraints on the exercise of the
state’s existing statutory powers. The decision does not apply to applications to
compel the state to act on those powers.
JUDGMENT
WILSON J:
1 Xenophobia is one of the greatest threats to democracy and human rights we
presently face. Leaving aside the fact that it feeds on that most toxic of human
instincts: the hatred of the other; forgetting that it is animated by the fantasy
that the presence of foreign nationals in South Africa immiserates the lives of
its citizens; and overlooking that, in its practiced form, it is merely another kind
3
of racism (for White foreigners seldom have much to fear), the problem with
xenophobia is its misdirection. If we can blame foreigners, we need not look
to ourselves for the solutions to the poverty and inequality that scar our
society. So long as foreigners are there to take unearned responsibility, the
structures of violence, fear and deprivation which bedevil the constitutional
project may be left unexamined.
The clinic blockades
2 The applicants are three organisations which work to expand access to
healthcare and fight against xenophobia. They approach me on an urgent
basis to obtain interim relief against the first to fifteenth respondents, who are
various organs of state bearing responsibility to ensure access to healthcare
services, to prevent crime and to promote public safety. The interim relief the
applicants seek is, in substance, the development and implementation of
measures which will prevent vigilante groups from blocking those who are not
in possession of a South African identity document from using the services of
two clinics in Johannesburg’s inner city. The applicants seek this relief pending
their application for a final order directing that such measures be put in place
at all public healthcare facilities throughout Gauteng.
3 The applicants say that, since June 2025, they have received a growing
number of complaints that vigilante groups have assembled at public
healthcare facilities across Gauteng in an attempt to prevent foreign nationals
from accessing those facilities. The applicants have investigated this
phenomenon and have found that, at the Yeoville Clinic and the Rosettenville
Clinic, groups of unidentified individuals have assembled and prevented
4
anyone who is unable to produce a South African identity document from
seeking treatment at either clinic. Even undocumented foreign nationals have
a right to primary healthcare, at state expense if need be . But the vigilante
blockade also prevents individuals who are not citizens or permanent
residents from seeking assistance at the clinics, whether or not they have the
right to remain in South Africa on some other basis. It also means that South
African citizens who do not happen to be in possession of an identity
document may also be turned away.
4 It appears from the applicants’ papers that those blocking access to the clinics
rely on the passivity of the clinic staff. Security guards on duty do nothing to
interfere with them, and the frontline staff and managers at the clinics have
likewise done little or nothing to discourage their conduct. On the papers, it
seems that those blocking access to the clinics have at times been allowed to
operate from inside the clinics themselves, effectively taking over the security
guards’ access control function. The clinics have been closed to anyone who
cannot produce a South African identity document on every occasion between
early September and early November 2025 that the applicants have sent
someone to check.
5 The respondents do not place these facts in dispute. Nor do they deny that
the conduct those facts disclose is unlawful, and that it is, generally, the
responsibility of the state to prevent it. The first and second respondents, who
are organs of the City of Johannesburg, which has direct responsibility for
running and ensuring access to the clinic, initially opposed the application, but
then withdrew that opposition. They have not filed an answering affidavit. Their
5
counsel, Mr. Nene, confirmed that he appeared on a watching brief, and could
offer no principled opposition to the relief sought against the City and its
organs. He relayed his instructions that the first to sixth respondents ask that
no costs order be granted against them, but he said little more than that.
The respondents’ duties
6 Mr. Mokhare, who appeared with Ms. Mamoepa for seventh to fifteenth
respondents, who comprise the national and provincial health authorities and
the police functionaries with responsibility for the areas the clinics serve, put
up a principled and vigorous argument that no interim relief can be granted
against his clients. The health authorities, he submitted, have no direct
responsibility for or control over the clinics, and in any event have no interest
at all in what goes on outside the clinics’ gates. In other words, Mr. Mokhare
submitted, if vigilantes gather outside state health facilities to block access to
those facilities, the health authorities have no legal obligation to interfere. That
obligation, Mr. Mokhare submitted, falls upon the police respondents, who can
only be expected to act on complaints submitted to them.
7 This position is so extraordinary that I had to ask Mr. Mokhare to explain it to
me twice. When I had come to grips with it, I was satisfied that it is wholly
misguided.
8 In the first place, and leaving aside the undisputed evidence that at least some
of the vigilantes are operating from inside the clinics ’ gates, the national and
provincial health authorities plainly have a legal interest in what goes on both
within and outside the clinics, at least insofar as it affects access to the clinics
themselves. That interest emerges, in the first instance, from sections 27 (1)
6
(a) and (2) of the Constitution, 1996, which oblige the seventh to tenth
respondents to take reasonable measures within their available resources to
ensure access to healthcare services. That plainly embraces an interest in
barriers of access to those services, including the presence of xenophobic
vigilantes at the clinic gates. If authority for that proposition is required, it is to
be found in Government of the Republic of South Africa v Grootboom 2001 (1)
SA 46 (CC) at paragraph 45, in which it is held that reasonable and effective
measures to give effect to socio-economic rights entail the examination and
removal of barriers of access to those rights. It stands to reason that the
Minister of Health and his provincial counterpart have, at the very least, a duty
to acquaint themselves with barriers of access to healthcare services and to
take such reasonable and effective steps as are within their means to remove
those barriers. This embraces, I think, a duty to examine, to plan for, and to
eradicate the activities of xenophobic vigilantes seeking to block access to
public healthcare facilities.
9 The Minister of Health’s legal interest in ensuring access to the clinics also
arises from sections 3 (1) (a) and (2) of the National Health Act 61 of 2003,
which require the Minister and his department to “endeavour to protect,
promote, improve and maintain the health of the population”, to “determine
policies and measures necessary to protect, promote, improve and maintain
the health and well -being of the population" , and to “ establish such health
services as are required” under the Act, ensuring that “all health
establishments and health care providers in the public sector must equitably
provide health services within the limits of available resources”. The Minister’s
Director-General (the tenth respondent in these proceedings) is obliged under
7
section 21 (2) (l) of the National Health Act to "co-ordinate health services
rendered by the national
department with the health services rendered by
provinces and provide
such additional health services as may be necessary
to establish a
comprehensive national health system”. This amply embraces
a duty to take the necessary steps to prevent xenophobic vigilantes from
blocking access to public healthcare facilities.
10 The first question that might confront the national and provincial health
authorities in taking these steps is why (as is presently undisputed on the
papers), the clinics’ own security staff appear to have ceded control of access
to the clinics to the vigilantes. If the vigilantes have overwhelmed the security
guards (there is little to suggest this on the papers), then security needs to be
enhanced. If the security guards are actively assisting the vigilantes because
they are sympathetic to the vigilantes’ aims, steps must be taken to discipline
or replace them. There are, of course, several other possibilities, but the first
step the national and provincial health authorities are constitutionally required
to take is to acquaint themselves with what is really happening and to
formulate appropriate measures to prevent it. That is all the applicants ask.
11 Mr. Mokhare submitted that the national and provincial authorities have
“outsourced” their constitutional and statutory duties to the City of
Johannesburg in terms of a service level agreement between the provincial
health department and the City which assigns responsibility for the clinics to
the City and its organs. Assuming for a moment that such “outsourcing” would
allow the national and provincial health authorities to absolve themselves of
any responsibility to ensure access to the clinics (it would not), the service
8
level agreement upon which Mr. Mokhare relied does no such thing. The
purpose of the agreement, as its preamble makes clear, is to provide a
framework within which the City and the provincial department of health “co-
operate to implement” the provisions of section 32 of the National Health Act,
which deal with the assignment of “appropriate health services” to
municipalities in terms of an agreement provided for in section 32 (2).
12 The service level agreement is such an agreement, but it “outsources” nothing.
It rather assigns management of the clinics to the City subject to provincial
oversight. The scope of that oversight is very broad. The provincial health
department sets the standard of service to be provided by the clinics, which is
itself based on National Department of Health guidelines (clause 4.1.1); sets
out the sites on which healthcare services are to be delivered, including the
sites of the two clinics (clause 4.1.2); sets the “service targets” to be met by
the City, including those targets to be met by the clinics (clause 4.1.3); and
deals with the hours the clinics will operate. The service level agreement
makes detailed provision for the management of pharmaceuticals, which the
provincial department supplies (clause 5.3). It provides the provincial health
department with extensive powers of monitoring and oversight (clause 9); it
obliges the provincial department to “work jointly” with the City to produce
primary healthcare plans for each district, including those served by the two
clinics (clause 15); the clinics’ services themselves are provided by provincial
health department staff seconded to the City for that purpose (clause 16.3);
the clinics’ budgets must be submitted to the provincial health department for
approval (clause 18.1); the provincial health department directly subsidises
the clinics’ work (clause 22.1); provincial health department staff sit on the
9
committees that oversee the clinics’ work (clause 23.3); and complaints about
what happens at the clinics may be resolved with the direct involvement of the
provincial department (clause 24).
13 In sum, the service level agreement does not permit the national and provincial
departments of health to renounce any interest in the way the clinics operate.
The agreement in fact empowers and obliges the provincial health department
to take a keen interest in how the clinics work. On any reasonable
interpretation, the service level agreement embraces a role for the provincial
department in stopping xenophobic vigilantes from preventing those without
South African identity documents from using the clinics.
14 It is obviously for the national and provincial departments themselves to
determine exactly how to address the particular barrier of access to the clinics
that has arisen in this case. It is conceivable, for example, that the national
department may exercise little more than an oversight function consistent with
the Minister’s statutory duties under section 3 of the National Health Act, while
the provincial department goes no further than exercising its rights under the
service level agreement it has concluded with the City. As long as the
measures the national, provincial and municipal authorities take are
reasonable and effective in removing the vigilante blockade, it is not for me to
prescribe exactly what those measures should be, or how responsibility for
implementing them should be apportioned between the three spheres of
government. What I reject in this judgment, for the reasons I have set out, is
the proposition that the national and provincial authorities bear no obligation
at all to act to address the vigilante blockades of the two clinics. Their
10
obligations to take action are spelt out in the Constitution, the National Health
Act and in the service level agreement.
15 I turn now to the responsibilities of the police respondents. The case for the
police appears to be that their role is limited to responding to complaints from
members of the public. On the facts established before me, that cannot be
accepted. The police respondents are constitutionally obliged “to prevent,
combat and investigate crime, to maintain public order, to protect and secure
the inhabitants of the Republic and their property, and to uphold and enforce
the law” (section 205 (3) of the Constitution). This necessarily implies a role
well beyond the passive receipt of complaints.
16 The police service has itself accepted as much. It has adopted what it calls a
“national instruction” intended to “activate resources and co-ordinate plans
and initiatives . . . to ensure the safety and security of all persons seeking
medical attention at public health facilities, including non-nationals ”. The
instruction “aims to prevent and respond promptly to any unlawful activities,
intimidation or harassment directed at non-nationals attempting to access
such healthcare service" (paragraph 26 of the police respondents’ answering
affidavit).
17 The police criticise the applicants for failing to set out what, other than the
investigation of complaints and the adoption of the national instruction, they
can be expected to do. The answer, it seems to me, is plain enough: wrest
control of the clinics from the hands of the vigilantes, or show that it is beyond
the capacity of the police – assisted, where necessary, by the other state
11
respondents – to do so. Once that is done, the police will have discharged
their responsibilities.
18 The police say that they cannot address the vigilante threat alone . They state
that “the responsibility to ensure the safety of persons, including at health
establishments, is not the sole responsibility of the SAPS”. Accepting for a
moment the sincerity of that contention, it is not clear to me what objection the
police respondents then have to being ordered to participate, with the other
state respondents, in the formulation and implementation of steps which are
reasonably capable of eradicating the activities of xenophobic vigilantes
seeking to block access to the two clinics concerned in this application. Other
than the contentions I have already dealt with, I did not understand Mr.
Mokhare to identify any such objection.
The interim relief
19 For all these reasons, it seems to me that there has been no credible
opposition put up to the interim relief the applicants seek. In order to grant
such relief I must be persuaded that the applicants have a prima facie right to
the order they seek in their application for final relief, which will be enrolled in
due course. There is room for me to entertain some, but not “serious”, doubt
about that right, while still granting the relief ( Webster v Mitchell 1948 (1) SA
1186 (W) at 1189). The applicants, or those in whose interests they act, must
have suffered, or reasonably apprehend, irreparable harm if the interim relief
is not granted, and there must be no effective remedy other than an interim
interdict to prevent or ameliorate that harm.
12
20 Finally, the balance of convenience must favour the grant of an interim
interdict. It has long been held that the stronger the prima facie right, the less
the balance of convenience need tilt in the applicant’s favour. In other words,
a relatively weak prima facie right may be compensated for by a balance of
convenience firmly in the applicant’s favour, and a very strong prima facie right
can make up for a balance of convenience adverse to the applicant. This is
little more than common sense. Apparently weighty cases in the main claim
ought to be heard out even if it puts the opposing parties to a great deal of
trouble. Even weak but still arguable cases ought nonetheless to be
entertained if they cause relatively little trouble to those who have to defend
them (Eriksen Motors (Welkom) Ltd v Protea Motors Warrenton 1973 (3) SA
685 (A) at 691E-G).
21 Where an interim interdict is sought in restraint of the exercise of statutory
powers by an organ of state, the balance of convenience inquiry takes on a
slightly different character. In that instance, a court is bound to weigh what has
been called “separation of powers harm”. Weighing this harm involves
recognising the need to allow the state to continue to exercise its powers and
functions, unless “the clearest of cases” has been made out that they are
based on an illegality (National Treasury v Opposition to Urban Tolling Alliance
2012 (6) SA 223 (CC) (“National Treasury”) at paragraph 47).
22 In this case, the applicants have a very strong prima facie right to the final
relief they seek – the adoption of effective measures to eradicate the activities
of xenophobic vigilantes seeking to block access to public healthcare facilities
across Gauteng. Whatever steps have been taken to achieve this goal, the
13
facts of this case demonstrate that they have been completely ineffective, at
least at the two clinics in respect of which interim relief is claimed. The
apprehension of harm is likewise clear. It is undisputed on the papers that the
harm is severe and ongoing. The balance of convenience plainly favours the
applicants. Those of the state respondents who have opposed the application
do not suggest that they are unable to do more to address the harm of which
the applicants complain. They say only that they are under no legal obligation
to do so. I have rejected that contention.
23 There is no effective remedial alternative to the interdict the applicants seek.
As was made clear in Hotz v University of Cape Town 2017 (2) SA 485 (SCA),
at paragraph 36, only the presence of an alternative legal remedy would allow
a court to deny interdictory relief. The only alternative that has been suggested
is the diligent reporting of unlawful activity to the police. On the papers, that
alternative, such as it is, has not worked. The vigilantes are reported. They
are not prosecuted. The blockades of the clinics carry on. Either the wrong
individuals are being reported, or the evidence necessary to prosecute is not
collected, or the prosecutorial service is failing in its duties. None of these
possibilities provides a basis for the refusal of interdictory relief.
24 Finally, the decision in National Treasury does not apply in this case. The
applicants do not seek to restrain the exercise of constitutional or statutory
powers. They seek to press the state to act on the powers it has. In any event,
National Treasury (at paragraph 90) recognises that a transgression of
fundamental rights may well justify interfering with the exercise of the state’s
ordinary powers. Here the state has failed to prevent a breakdown in the rule
14
of law itself, with the effect that those who do not have a South African identity
document cannot access the two clinics at issue in this application. The extent
of the breach of their rights of access to healthcare services plainly justifies
any interference with the state’s ordinary powers the interim relief sought in
this case entails.
25 It was suggested during argument that the interim relief sought would interfere
with the constitutional and statutory delineation of powers and obligations
between the various state respondents. That argument sat in obvious tension
with the proposition that some of the state respondents have no obligations at
all in respect of the clinics. In any event, I do not think the interim relief has
that effect. The relief merely requires the state respondents to exercise the
constitutional and statutory powers they do have to take reasonable and
effective measures to free the clinics of the vigilantes blockading them. To the
extent that the order I will grant places obligations on “the first to fifteenth
respondents” generally, it is obviously not to be understood as requiring any
one of the respondents to exercise a power that properly lies within another
respondent’s competence. What it requires is that all of the respondents co-
ordinate their approaches in order to achieve the same objective: the lifting of
the vigilante blockade of both clinics.
26 It was also submitted that the relief is incompetent because it interferes with
the separation of powers. Those concerns ought to be put to rest by the
observations I have made about the National Treasury decision. But it seems
to me necessary to repeat what was first said in the Minister of Health v
Treatment Action Campaign (No 2) 2002 (5) SA 721 (CC) almost a quarter of
15
a century ago: “South African courts have a wide range of powers at their
disposal to ensure that the Constitution is upheld. These include mandatory
and structural interdicts. How they should exercise those powers depends on
the circumstances of each particular case. Here due regard must be paid to
the roles of the legislature and the executive in a democracy. What must be
made clear, however, is that when it is appropriate to do so, courts may – and
if need be must – use their wide powers to make orders that affect policy as
well as legislation” (paragraph 113).
27 In this case, I had to go no further than to direct the relevant organs of state
to do what they are plainly obliged to do within existing legislation and policy.
The overarching obligation enforced in the relief I will grant lies on all the state
respondents to act in a co-ordinated way to ensure access to the two clinics.
That obligation infuses their separate and delineated statutory roles. I have
already pointed out that the decision in Grootboom requires no less of the
state when it acts to enforce soc io-economic rights. It is, in my view, a great
pity that litigation was required to address what has happened at the clinics in
this case. The weakness of the state’s response to a direct and apparently
well-organised attack on its efforts to secure basic healthcare for some of the
most vulnerable people in our society is of grave concern. As TAC (No. 2)
makes clear, I am under a duty to grant effective relief to remedy that
shortcoming.
The order
28 There was no quarrel with the proposition that costs should follow the result in
the event that the applicants prevailed. Mr. Nene asked me not to order costs
16
against the City, but I do not think the City deserves a costs shield simply
because it ultimately decided not to oppose the relief sought. As an organ of
state, the City has the duty to assist and protect the courts and ensure their
independence and effectiveness (section 165 (4) of the Constitution). Even if
it planned to abide my decision, the City was the organ of state best placed to
explain what is happening at the clinics. It ought to have filed an affidavit
explaining the situation and its position. I may fairly infer from the City’s silence
that it has done nothing to address the vigilante blockade at the clinics, but
that does nothing to justify its silence. It will be jointly and severally liable for
the applicants’ costs. Given the importance of the matter, the costs of two
counsel may be taxed on scale “C”.
29 I make the following order –
29.1 Non-compliance with the forms, service and time periods provided
for in the Uniform Rules of Court is condoned , and it is directed that
this matter is heard as one of urgency in terms of Uniform Rule 6
(12).
29.2 Pending the final determination of the application in Part B –
29.2.1 The first to fifteenth respondents are directed, forthwith, to
take all reasonable measures to ensure safe and
unhindered physical access to the Yeoville and
Rosettenville clinics for all persons seeking health services.
29.2.2 The first to fifteenth respondents are directed to confront
and take all reasonable steps to secure the removal of any
17
unauthorised persons from the clinics' premises or
immediate surrounds who are hindering or obstructing
physical access to and the provision of health services
within the clinics.
29.2.3 The first to fifteenth respondents are directed to ensure that
adequate numbers of trained security personnel are
stationed at all access points to the clinics to ensure
compliance with this order.
29.2.4 The first and second respondents are directed, within 5
days of this order, to post notices at all public access points
to the clinics stating that:
"No unauthorised person may obstruct or hinder physical
access to this clinic or the provision of healthcare services
within the clinic. Any person violating this instruction will be
removed from the premises and its surrounds and reported
to the police."
29.2.5 The first and second respondents are directed to report all
incidents and unauthorised persons contemplated in
paragraph 29.2.2 to the South African Police Service and,
for that purpose, to take all reasonable steps to ascertain
the identities of the unauthorised persons.
29.2.6 The South African Police Service is directed to provide all
necessary assistance to ensure compliance with this order,
including taking all reasonable steps to respond to and
investigate the reports in paragraph 29.2.5 above.
29.3 The first to fifteenth respondents are directed to file a report, on
affidavit, within 10 court days of this order, detailing the actions taken
to comply with the interim order in paragraph 29.2 above.
29.4 The applicants are granted leave to approach this court on the same
papers, duly supplemented to the extent necessary, for any further
relief necessary to enforce this order.
29.5 The applicants are granted leave to file supplementary affidavits for
purposes of the Part B relief, by no later than 30 January 2026.
29.6 The costs of this Part A application are to be paid by the third,
seventh, ninth and eleventh respondents, jointly and severally, the
one paying the other to be absolved, including the costs of two
counsel. Counsel's costs may be taxed on Scale C.
S DJ WILSON
Judge of the High Court
This judgment was prepared by Judge Wilson. It is handed down electronically by
circulation to the parties or their legal representatives by ema il, by uploading it to the
electronic file of this matter on Caselines, and by publication of the judgment to the
South African Legal Information Institute. The date for hand-down is deemed to be 4
December 2025.
HEARD ON:
DECIDED ON:
For the Applicants:
25 November 2025
4 December 2025
Chris McConnaiche
R Kruger
T Malusi
J Hunter-Parsonage
Instructed by Section 27
18
19
For the First to Sixth M Nene
Respondents: Instructed by SSM Attorneys
For the Seventh to W Mokhare SC
Fifteenth Respondents: S Mamoepa
Instructed by the State Attorney