South Africa’s highest court has dealt a significant blow to the National Health Insurance (NHI) framework, declaring unconstitutional the provisions that allowed the state to dictate where healthcare professionals could practise.
Certificate of need provisions ruled unconstitutional
This confirmed a High Court ruling that the “certificate of need” provisions in the National Health Act are unconstitutional and invalid, according to Business Day.
In July 2024, Gauteng High Court Judge Anthony Millar found that Sections 36 to 40 of the National Health Act were inconsistent with the constitution.
Those sections required healthcare service providers and facilities to first obtain a certificate of need before they could begin operating.
The certificate, which is valid for 20 years, determines where doctors and other health professionals are permitted to work.
It also capped the number of healthcare practitioners and establishments that could operate in a given area.
Millar previously found that the provisions violated several constitutional rights, having failed to account for the rights of private healthcare owners and workers, or the social, professional and financial consequences for them.
The high court further noted that the law risked unlawfully stripping away property rights, and the matter was subsequently referred to the Constitutional Court for confirmation.
Health minister fights back
While the case was heard by the apex court last year – with arguments presented by Solidarity, the Alliance of South African Independent Practitioners Associations, the South African Private Practitioners Forum, the Hospital Association of South Africa and several other healthcare groups – it was not without resistance.
The health minister and director-general have previously opposed the confirmatory application.
The challenge was mounted against the minister of health, the president, and the department of health’s director-general.
In a unanimous judgment handed down on Monday, the Constitutional Court upheld the Pretoria High Court’s finding that Sections 36 to 40 unjustifiably limited the right to freely choose a trade, occupation, or profession.
The court declared the sections invalid and ordered the health minister and director-general to pay the applicants’ costs.
A central pillar of the NHI collapses
Solidarity described the ruling as deeply significant, saying it represented a powerful pushback against the state’s drive to centralise control under National Health Insurance.
“One of the NHI’s central pillars has collapsed today. The Certificate of Need was far more than merely an administrative instrument. It was an instrument of centralisation and state control,” said Solidarity deputy CEO Anton van der Bijl.
Van der Bijl went further, saying the judgment drew a firm line between state authority and individual freedom.
“The government wanted to move health practitioners around like its own pawns on a chessboard to cover up its own failures. Today the court said that South Africans are not state property and professionals are not pawns of the government,” he said.
Additional reporting by Molefe Seeletsa
