Lawyers for Human Rights (LHR) has started an urgent three-day fundraising campaign for Alem Bazabe Ereselo, an Ethiopian asylum seeker who is being denied life-saving treatment because she does not have valid papers.
The fundraising campaign aims to raise enough money for Ereselo to be treated in the private sector.
In February 2019, Ereselo — who was being treated at the hospital — reached irreversible end-stage kidney failure which meant she required long-term chronic dialysis until a kidney transplant became available. The hospital, which can place a limited number of patients on dialysis, notified Ereselo that it would terminate her treatment because she was not a South African citizen and did not “possess verified documents pertaining to refugee status or permanent citizenship awarded”.
Ereselo approached LHR in April after which LHR launched an urgent application to get an interdict against the hospital that would prevent it from denying Ereselo the treatment. LHR wanted the interdict while it continued to challenge the policy of the Department of Health and the hospital on the basis that discrimination against asylum seekers was in violation of the Constitution.
But Judge Motsamai Makume dismissed LHR’s urgent application, allowing the hospital to terminate the treatment.
Jessica Lawrence, an attorney at LHR, said in a statement that the court’s decision amounted to a death sentence for Ereselo. “The underlying policy unfairly differentiates between South African citizens and asylum seekers, and is more broadly, an assault on the right to health of the poor,” she said.
Scarcity of resources
Makume said in his judgment that this case was not discriminatory against asylum seekers because “there are numerous South Africans who have been excluded from renal treatment of the same nature on the basis of scarcity of resources”.
He relied on evidence presented by Dr Malcom Davies, the head of the Department of Nephrology at Helen Joseph, which highlighted the chronic shortage of dialysis slots and the hospital’s inability to take new patients.
Davies said in court papers: “We have limited numbers of peritoneal slots to accommodate transplant-eligible South African patients; and the treatment lasts on average for three to five years before the patient requires transfer to haemodialysis and it is expensive to maintain.”
“The applicant [Ereselo] is a foreign national with lapsed temporary asylum permit and thus does not qualify for transplantation,” he said.
Ereselo came to South Africa in 2010 after fleeing from Ethiopia out of fear of political persecution. She applied for refugee status when she arrived and was granted a temporary refugee permit.
On July 7, 2010, Ereselo was informed that her application for asylum had been rejected. She immediately filed an appeal with the Refugee Appeal Board but she is still waiting for the outcome of the appeal, nine years later.
Makume pointed out that Ereselo was never denied emergency treatment. He said her condition was stabilised and steps were taken to ensure an expedited repatriation where she would receive permanent treatment in Ethiopia.
He said Ereselo was “speculating” that the Health Department of Ethiopia would not provide her with long-term health care upon her return. “She now wants to rely on her failed refugee status to force Helen Joseph to give her treatment under circumstances where Helen Joseph hospital is unable to due to lack of resources,” read the judgment.
LHR intends to appeal the judgment but it has called upon people in the private sector and individual donors to contribute to Ereselo’s treatment in the private sector while the court proceedings continue.
This legal battle is happening against the background of a 1998 Constitutional Court judgment in which a unanimous court turned down Thiagraj Soobramoney’s application to compel the minister of health to provide him with dialysis. The court found that because of the state’s limited resources it could not order it to provide every patient with dialysis. Soobramoney died soon after.