The Constitutional Court has declared the certificate of needs provision in South Africa’s National Health Insurance Act unconstitutional, removing what has been described as a core pillar of the controversial health reform legislation.

In a ruling handed down on Monday, the court was asked to uphold a 2024 High Court decision that found sections 36 to 40 of the National Health Act unconstitutional. The case was 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 provision granted government the power to dictate where health practitioners may work and which services they may provide, a measure that faced fierce opposition from medical professionals and opposition parties since the NHI legislation was proposed.

Philip van Staden, FF 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 in a statement following Monday’s judgment.

The FF Plus submitted a legal opinion to Parliament in 2023 indicating the NHI would not pass constitutional scrutiny, particularly regarding provisions that would allow government to prescribe where health practitioners must work.

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. Critics raised concerns about the structure, management and financing of the fund, as well as vague clauses within the legislation.

Several other court cases challenging the NHI’s constitutionality and the public participation process followed during its passage through Parliament remain underway. Legal pressure has also been applied to the President to provide reasons for signing the legislation into law.

The FF Plus has consistently opposed the NHI, arguing that government should focus on improving the existing public health system rather than implementing the new fund structure.

“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,” Van Staden said. “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.”

ALSO READ: Government progressing with NHI implementation despite legal challenges

The ruling represents a significant setback for the government’s plans to overhaul South Africa’s healthcare system through a single-payer national health insurance scheme.

In the meantime, Health Minister Motsoaledi has issued a clarification and apology following recent comments about judges, parliamentarians and wealthy South Africans benefiting from the country’s unequal health system.

The minister stated his remarks were intended to highlight systemic challenges caused by South Africa’s two-tiered health system, where a well-resourced, state-subsidised private sector serves a privileged minority whilst the majority depend on an under-resourced public sector.

ALSO READ: Western Cape Government files Constitutional Court challenge against NHI

Motsoaledi emphasised that his comments should not be interpreted as questioning the judiciary’s ability to remain impartial when ruling on NHI constitutionality challenges. He expressed full confidence in the fairness and integrity of the judiciary and its commitment to upholding constitutional rights and the rule of law.

The minister offered an unreserved apology for any offensive statements and withdrew them, stating he will fully accept and respect any Constitutional Court verdict on the NHI.

Motsoaledi said he regretted that the comments detracted from his central message: that government remains committed to the NHI as the mechanism to achieve universal healthcare coverage in line with Section 27 of the Constitution, which guarantees everyone the right to access healthcare services.

The minister reiterated that the goal is to ensure a health system where every person, regardless of social status, has access to quality healthcare without financial burden.

The Department of Health is yet to issue a statement of todays Constitutional Court ruling.

ALSO READ: Ramaphosa delays NHI implementation pending court challenges