Cancer patients will not suffer irreparable harm if an earlier ruling affording them urgent oncology and related services is not immediately executed, the Gauteng High Court, Johannesburg found.

The prospects of success are high regarding the appeal launched by the Gauteng Department of Health (GDoH) and the MEC for Health in Gauteng against the earlier ruling for it to provide urgent radiation oncology services to cancer patients, the court said in suspending the original order pending the appeal.

The Cancer Alliance and Section29 noted with disappointment the judgment delivered by the Gauteng High Court, Johannesburg this week, which it said is another setback for cancer patients.

The judgment concerns an appeal lodged by the Gauteng provincial health respondents following a judgment issued in March this year. The department was at the time ordered to, among other things, update the backlog list of patients awaiting radiation oncology services. It also had to provide radiation oncology services to patients awaiting radiation and report to the court on their progress.

Following the judgment, the Gauteng provincial health respondents successfully sought permission from the court to appeal the decision to the Supreme Court of Appeal. This meant that the operation of the March order was suspended pending the determination of the appeal in the SCA.

Recognising the urgency of compliance with the March judgment, Cancer Alliance successfully sought to force compliance with the original order under appeal (which would otherwise be suspended by the pending appeal) due to exceptional circumstances.

Judge Evette Dippenaar ruled in favour of Cancer Alliance, and the provincial health respondents were once again compelled, pending the appeal to the SCA, to update the backlog list, provide radiation oncology services to patients on the backlog list, and report progress to the court.

The provincial health respondents appealed this order, and the court now ruled in favour of the department, again suspending the original order pending the outcome of the SCA proceedings. The court has found that Judge Dippenaar erred in finding that there were exceptional circumstances which warrants immediate execution of the order.

A full court (three judges) found that the provincial health respondents have prospects of success on appeal to the SCA and that the updating of the backlog list would not, by itself, prevent irreparable harm to the patients if not granted.

This judgment implies that the March 2025 judgment, while it still stands as a victory for the Cancer Alliance and cancer patients awaiting radiation oncology, is suspended pending the finalisation of the appeal in the SCA.

A major issue in dispute in the proceedings has been the accuracy of the backlog list compiled by the Cancer Alliance, working with clinicians and officials at GDoH as members of the Task Team established by the MEC for Health in 2022.

While this ruling delays the implementation of critical relief for patients awaiting radiation, Cancer Alliance and Section27 said they remain steadfast in their commitment to securing improved access to healthcare. The matter will now proceed to the SCA, where it is expected to be set down for hearing in the first term of 2026.

zelda.venter@inl.co.za

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