The Constitutional Court says government cannot force healthcare providers to apply for a certificate of need (CON) that controls where they can and cannot work, and what services they can provide.

It yesterday ruled that Sections 36 to 40 of the National Health Act were unconstitutional, effectively ratifying a July 2024 High Court decision that reached the same conclusion. 

News24 reports that the disputed sections sought to grant the state power to dictate where healthcare providers could operate, who they could employ, and what training they could provide.

Solidarity, the Alliance of SA Independent Practitioners Association, the SA Private Practitioners Forum, the Hospital Association of SA, and four independent healthcare practitioners applied to the Constitutional Court to have the High Court ruling confirmed. 

The Health Minister and DG of the National Department of Health filed a counterapplication, seeking to have the High Court’s declaration of unconstitutionality set aside.

Government argued that the regulations requiring healthcare practitioners to apply for a CON were a central pillar of the National Health Insurance (NHI) Act and were necessary to overcome the racialised allocation of healthcare resources created by apartheid spatial planning.

However, the Constitutional Court ultimately ruled against the Department of Health and ordered it to pay the applicants’ costs.

‘Granting the power to the DG to issue or refuse a certificate, without requiring regard to be had to the rights and interests of health establishments, agencies or providers, is inconsistent with legal and constitutional constraints and falls short of the threshold requirement of rationality,’ the court said in its ruling. 

News24 notes that it said the order of constitutional invalidity made by the Gauteng High Court (Pretoria) is confirmed.

The consequence of the Constitutional Court ruling is that sections 36 to 40 are severed from the National Health Act.

Parliament is free to issue new laws provided they pass constitutional muster.

Solidarity, which was essentially the lead applicant, described the ruling as a 'huge victory' for healthcare practitioners and the general public, saying the CON requirement was merely a mechanism by which the government sought to exercise greater control over the healthcare industry.

During legal arguments, Solidarity’s legal counsel said the CON would have rendered healthcare practitioners ‘pawns of the state’. 

‘One of the NHI’s central pillars has collapsed today. News24 notes that the CON was far more than merely an administrative instrument. It was an instrument of centralisation and state control,’ said Anton van der Bijl, Solidarity’s deputy CEO.

Full News24 report

Solidarity statement