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

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

Mvikweni Mlondolozi & Paul S. Masumbe

Issue: Vol. 7 No.7 2026 Article 18 pp. 1997 – 2008
DOI: https://doi.org/10.38159/ehass.20267718Published online 21st September 2026

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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).

Keywords: Children’s Rights, Healthcare Access, Judicial Enforcement, Socio-economic Rights, Transformative Constitutionalism.

BIBLIOGRAPHY

Legislation

Child Care Act 74 of 1983.

Children’s Act 38 of 2005.

Choice on Termination of Pregnancy Act 92 of 1996.

Constitution of the Republic of South Africa, 1996.

Case Law

Centre for Child Law v Minister for Justice and Constitutional Development 2009 (2) SA 392 (CC).

Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC); 2000 (11) BCLR 1169 (CC).

Hay v B 2003 (3) SA 492 (W).

Life Health Care Group (Pty) Ltd v JMS [2014] ZAGPJHC 299 (20 October 2014).

Minister of Health v Treatment Action Campaign [2002] ZACC 15; 2002 (5) SA 721 (CC); 2002 (10) BCLR 1033 (CC).

S v L 1992 (3) SA 713 (E).

S v M [2007] ZACC 18; 2008 (3) SA 232 (CC); 2007 (12) BCLR 1312 (CC).

Soobramoney v Minister of Health (KwaZulu-Natal) [1997] ZACC 17; 1998 (1) SA 765 (CC); 1997 (12) BCLR 1696 (CC).

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———. “Realising Children’s Rights to Legal Representation and to Be Heard in Judicial Proceedings: An Update.” South African Journal on Human Rights 24,no.3(2008):495–524.

ABOUT AUTHOR(S)

Mr. Mlondolozi Mvikweni is a Junior Lecturer in the School of Law at iYunivesithi Walter Sisulu, with research interests anchored in Transformative Constitutionalism, Private Law, and the intersection of law, governance, and emerging technologies. His scholarship explores how constitutional values reshape traditional private law doctrines and how legal frameworks can be reimagined to address systemic inequality and promote social justice. His work spans procedural fairness in administrative and constitutional litigation, the regulation of artificial intelligence in research and governance, corporate governance in emerging markets, and the legal implications of technological advancements in healthcare and local government. He has presented his research at national and international conferences, contributing to academic discourse on the transformative potential of law in South Africa and beyond.

Professor Paul Masumbe is the Head of the School of Law at iYunivesithi Walter Sisulu. He is a dedicated, focused, and accomplished legal scholar with expertise in International Criminal Law, Human Rights Law, Labour Law with emphasis on dismissal, and selected areas of Private Law. He earned his LLD from the Nelson Mandela School of Law at the University of Fort Hare, an LLM from the University of the Western Cape, and an LLB from the University of Yaoundé. Before his appointment as Head of the School of Law, Professor Masumbe had served as a Postdoctoral Research Fellow, Senior Lecturer, and Chairperson of the Faculty Research and Higher Degrees Committee. He has taught, examined, and supervised at LLB and LLM levels, and is an examiner for LLD/PhD degrees. Besides serving as an external examiner for universities, he is a member of learned societies in Africa, Europe, and Asia, a reviewer for journals in South Africa, Europe, and the United States, and an Editorial Board Member of Journals. Professor Paul S. Masumbe is a member of the University Senate and the South African Law Deans’ Association (SALDA).

TO CITE ARTICLE

Mlondolozi, Mvikweni, and Paul S. Masumbe. “Transformative Justice in Action: Judicial Enforcement of Children’s Right to Healthcare.” E-Journal of Humanities, Arts and Social Sciences 7, no.7 (2026): 1997 – 2008. https://doi.org/10.38159/ehass.20267718