The Constitutional Court has delivered a major blow to the government’s healthcare reform agenda after declaring key provisions of the National Health Act unconstitutional, ruling that the controversial “certificate of need” scheme was irrational and unlawfully limited the right to trade.
In an unanimous judgment handed down on Monday, the apex court confirmed an earlier Pretoria High Court ruling striking down sections 36 to 40 of the National Health Act.
The matter was brought by Solidarity Trade Union, independent healthcare practitioners and the Hospital Association of South Africa (HASA) against Health Minister Aaron Motsoaledi, President Cyril Ramaphosa and the Director-General of Health.
At the centre of the dispute was the government’s proposed “certificate of need” system, which would have required healthcare providers to obtain state approval before establishing, acquiring, modifying or continuing to operate medical facilities and services.
Provisions grant excessive broad powers
Under the scheme, the director-general of health would also have had powers to decide where healthcare services could operate and under what conditions.
Justice Kate Savage, writing for the unanimous court, found that the provisions granted excessively broad powers to the state without adequate safeguards.
“The minister was effectively left with the sole discretion to determine the intended scope of the scheme, a power that was unconstrained,” the court ruled.
The court further found that the provisions “did not establish a comprehensible scheme against which a rational connection existed between the purpose and the means adopted to achieve it”.
The judgment held that although expanding healthcare access was a legitimate government objective, the law failed constitutional scrutiny because healthcare providers would have been left uncertain about what exactly the law required from them.
The judges also found that the provisions unjustifiably limited the constitutional right to trade.
“A person’s choice of trade, occupation or profession depends on considerations of location, nature, specialty, profitability and financial sustainability,” the judgment stated.
“Some health service providers would have consequently faced the burden of either practising in a place or specialty contrary to their choosing or risking criminal sanction.”
Government defends provisions
The court noted that operating without a certificate of need could have exposed healthcare providers to criminal penalties, including fines or imprisonment of up to five years.
Government had defended the provisions as necessary to transform South Africa’s healthcare system and address apartheid-era inequalities in access to medical services.
The state argued that the challenge was premature because the regulations underpinning the scheme had not yet been finalised.
However, the Constitutional Court rejected that argument, finding that the dispute was neither hypothetical nor abstract.
The ruling is expected to intensify the already heated national debate around the broader National Health Insurance framework, which has faced mounting opposition from private healthcare groups, business organisations and civil society bodies concerned about state control, costs and constitutional rights.
The court ordered the government to pay the applicants’ legal costs, including those of two counsels.
The Constitutional Court has struck down controversial NHI “certificate of need” provisions, ruling that they irrationally limited healthcare practitioners’ right to choose where and how to practice.
In response to the judgment, the Department of Health moved swiftly to distance the ruling from the broader NHI framework, insisting the Constitutional Court had not struck down any section of the NHI Act itself
Department spokesperson Foster Mohale said the invalidated provisions were passed more than two decades 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,” said Mohale.
He added that the department would continue with “all necessary health system strengthening preparations for the NHI as the mechanism for South Africa to realise universal healthcare coverage”.
- The Constitutional Court ruled key provisions (sections 36-40) of the National Health Act unconstitutional, striking down the “certificate of need” scheme for being irrational and unlawfully limiting healthcare providers’ right to trade.
- The “certificate of need” would have required state approval for operating or modifying medical facilities, granting excessive, unconstrained power to the Health Minister and Director-General of Health.
- The court found the provisions lacked clear guidelines, failed to establish a rational connection to their objectives, and unjustifiably infringed on healthcare practitioners’ freedom to choose their trade location and specialty.
- The government defended the provisions as essential for healthcare transformation and addressing inequities, but the court rejected claims that the challenge was premature despite regulations not being finalized.
- The Department of Health clarified the ruling does not affect the broader National Health Insurance (NHI) Act, emphasizing that the struck provisions were old and never implemented, and reaffirmed commitment to NHI preparations.
In an unanimous judgment handed down on
At the centre of the dispute was the government’s proposed “certificate of need” system, which would have required healthcare providers to obtain state approval before establishing, acquiring, modifying or continuing to operate medical facilities and services.
Justice Kate Savage, writing for the unanimous court, found that the provisions granted excessively broad powers to the state without adequate safeguards.
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“A person’s choice of trade, occupation or profession depends on considerations of location, nature, specialty, profitability and financial sustainability,” the judgment stated.
“Some health service providers would have consequently faced the burden of either practising in a place or specialty contrary to their choosing or risking criminal sanction.”
Government had defended the provisions as necessary to transform
However, the Constitutional Court rejected that argument, finding that the dispute was neither hypothetical nor abstract.
In response to the judgment, the Department of
Department spokesperson Foster Mohale said the invalidated provisions were passed more than two decades ago and “have never been brought into effect”.
“
He added that the department would continue with “all necessary health system strengthening preparations for the NHI as the mechanism for
