The Constitutional Court has declared sections 36 to 40 of the National Health Act unconstitutional, ruling that the certificate of needs provisions are irrational and unjustifiably limit the right to choose a trade, occupation or profession freely.
The court handed down its unanimous judgment on Monday in a case brought by trade union Solidarity, the Hospital Association of South Africa and the Alliance of South African Independent Practitioners’ Associations against Health Minister Dr Aaron Motsoaledi.
The certificate of needs scheme required private hospitals, clinics and healthcare professionals to obtain government-issued approval before establishing, expanding or relocating their practices. The court found the scheme was not rationally connected to its stated purpose of expanding access to healthcare services and that the absence of clear regulations left the minister with unconstrained discretion.
The sections in question were passed by Parliament 23 years ago but have never been brought into effect. The court also ordered the minister and the Director-General of Health to pay the applicants’ legal costs.
The Department of Health has emphasised that the judgment does not relate to the National Health Insurance Act itself, despite claims from political parties and the private health sector.
“It is important to clarify that the judgement is not a judgement relating to the National Health Insurance Act. The sections in question were passed by Parliament 23 years ago and have never been brought into effect. Thus, there is no direct impact of the judgement on the NHI as some within the political and private health sector have rushed to mislead the public on. No section of the NHI has been declared unconstitutional,” the department said in a statement.
The department added that it is continuing with preparations for the NHI as the mechanism for South Africa to achieve universal healthcare coverage in line with Section 27 of the Constitution, which guarantees everyone the right to access healthcare services.
Opposition parties have welcomed the ruling, describing it as a significant blow to the government’s broader NHI framework.
Philip van Staden, Freedom Front Plus MP and chief spokesperson for health, said the ruling vindicated his party’s long-standing concerns about the Act’s constitutionality.
“Years ago, the FF Plus warned in Parliament that NHI legislation would fail if its constitutionality was challenged in the courts,” Van Staden said. The FF Plus submitted a legal opinion to Parliament in 2023 indicating the NHI would not pass constitutional scrutiny.
“Today’s ruling is a wake-up call for the President, the Minister of Health and the government to realise that the NHI must be stopped immediately. We need to go back to the drawing board to design a sustainable system that will benefit both the public and private health sectors as well as South Africa,” Van Staden said.
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The Democratic Alliance, which is supporting the Western Cape Government’s separate Constitutional Court challenge against the NHI Act, has consistently argued that government must prioritise fixing existing public healthcare infrastructure before implementing a centralised fund.
The DA’s separate challenge, which was heard by the Constitutional Court on 5 and 6 May, focuses on procedural grounds, specifically arguing that Parliament failed to comply with constitutional requirements for meaningful public participation before passing the NHI Act. A judgment in that matter is pending.
President Cyril Ramaphosa signed the National Health Insurance Act into law shortly before the 2024 general elections, despite widespread opposition from healthcare professionals, opposition parties and sections of civil society.
Several court cases challenging the NHI’s constitutionality and the public participation process followed during its passage through Parliament remain underway.
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