The Constitutional Court of South Africa has axed Sections 36 to 40 of the National Health Act, declaring them unconstitutional.
The sections in question deal with the government’s “Certificate of Need”, which is a licensing system for healthcare providers in the country.
At its core, the certificate acted as a mandate for where healthcare facilities and healthcare providers could operate or expand.
It advanced the state’s aim of ensuring “equitable distribution” of medical resources nationwide, but also limited practitioners’ freedom of choice in where they could operate.
Under the scheme, a certificate needed to be obtained to establish, construct, modify, acquire or continue to operate a health establishment or agency in the country.
This extended to acquiring health technology or providing prescribed health services.
Power was given to the Director-General to consider whether or not to grant such a certificate, especially looking at “equitable distribution” of health services.
Opponents of the scheme characterised the certificate as one of the pillars of state control over healthcare, and a core component of the state’s National Health Insurance scheme.
Trade Union Solidarity explained that the certificate would have given the state the near absolute power to determine which healthcare practitioners may practice where and which services may be provided.
Operating without a certificate would have constituted an offence, with violators at risk of a fine or five years’ imprisonment.
However, the Constitutional Court has now severed the sections of the Act relating to the certificate.
Victory for healthcare workers
The Constitutional Court ruling follows a High Court ruling in 2024.
The High Court ruled that the certificate was not rational, and failed to account for the constitutional rights of owners of private health establishments, service providers and workers.
The court also found the scheme to be procedurally irrational and lacking safeguards, violating several constitutional rights.
In the matter brought by Solidarity, the Hospital Association of South Africa (HASA) and the Alliance of South African Independent Practitioners’ Associations, the litigants sought confirmation from the ConCourt.
The ConCourt confirmed the findings.
“The High Court’s declaration that the impugned provisions were invalid was confirmed, and the cross-appeal was dismissed,” it said.
“The certificate of need scheme is not rationally connected to the objective of ensuring transformation and a more equitable distribution of health services,” the court said.
It added that the powers of the Minister and the Director-General of Health are not sufficiently constrained when issuing certificates of need and dealing with all other aspects of the scheme.
“The certificate of need scheme unjustifiably limits the right to choose one’s profession, occupation or trade freely.”
Anton van der Bijl, Deputy Chief Executive of Solidarity, said the ruling has toppled one of the central pillars of the NHI.
The NHI similarly aims to centralise state control over healthcare, while giving the Minister of Health immense and sweeping power to alter the country’s healthcare systems.
“The Certificate of Need was far more than merely an administrative instrument. It was an instrument of centralisation and state control,” Van der Bijl said.
“Today the court said that South Africans are not state property and professionals are not pawns of the government.”
Van der Bijl says the ruling should ensure that “no government can force doctors, dentists, nurses and other healthcare practitioners through regulations to create quality healthcare where the government itself has failed.”
