Transformative justice in action: Judicial enforcement of children’s right to healthcare

Abstract

This study critically examines the judicial interpretation and enforcement of children’s healthcare rights in South Africa within the framework of transformative constitutionalism. Through an examination of seminal cases including Soobramoney v Minister of Health, Government of the Republic of South Africa v Grootboom, Minister of Health v Treatment Action Campaign, and S v M, the study traces the judiciary’s evolution from initial caution and deference to a more interventionist stance that directly safeguards children’s health and dignity. The discussion further engages with statutory frameworks, including the Children’s Act 38 of 2005, and the judiciary’s role as the “upper guardian” in overriding parental refusal of life-saving treatment. Employing doctrinal legal analysis of constitutional provisions, case law, legislation, and academic literature, the study demonstrates how courts have progressively shaped the scope and enforceability of children’s rights to healthcare, while highlighting the persistent gap between aspirational law and practical implementation. The findings affirm that although challenges remain, the judiciary has been instrumental in entrenching the principle that no child should be denied essential healthcare necessary for survival, development, and dignity. This study contributes to scholarship by providing the first systematic mapping of this doctrinal evolution, identifying the “upper guardian” doctrine as a distinctive mechanism for circumventing resource limitations in children’s cases, and advancing a normative framework for reconciling Sections 27(1) and 28(1)(c).