By Lehlohonolo Lehana.
The Pretoria High Court has dismissed the government’s controversial plans to exert more control over where doctors and medical professionals can practice in the country.
This affirms a previous ruling that the National Health Act’s certificate of need provisions are unconstitutional and should be struck down.
The sections in question stipulate that government have the right to determine where private doctors and medical professionals may practice and where private hospitals should be built.
Trade union Solidarity challenged the constitutionality of the certificate in December 2021, with a June 2022 ruling finding in its favour and declaring the sections invalid and unconstitutional.
However, this judgement was later rescinded after the department argued successfully that it had not been informed of the proceedings (it did not oppose the court challenge or appear for any of the proceedings).
The Constitutional Court said in December 2022 that the lower courts should decide on the matter, which resulted in the matter going back to court—this time with the department’s response in tow.
In its application Solidarity argued that the requirement of a certificate of need infringes unlawfully on the right of health practitioners to practise their profession.
Solidarity said that had these sections come into effect it would have amounted to the “expropriation” of health practitioners’ businesses and their property at the expense of both the practitioners and those who are currently making use of their services.
“In essence, these sections would have empowered the government to capture medical practices almost entirely and to manage them at will – rather than them being run at the discretion of the doctors.
The High Court has now reached the same conclusion, re-declaring sections 36-40 of the National Health Act invalid and unconstitutional.
The ruling will have to be confirmed by the Constitutional Court, and as such will be filed with the Registrar of the Constitional Court, the judge Anthony Millar said.
Solidarity won its case with costs.
If the Constitutional Court confirms the ruling, or parts of it, it typically gives lawmakers two years to ammend the country’s laws to address the unconstitutionality.
While the latest court ruling does not relate to the National Health Insurance Act directly, the provision of the certificate of need is a fundamental tool the government needs to ensure that it can control how healthcare providers operate, whether in the public or private sector.
Minister of health Dr Aaron Motsoaledi equated litigation about health rights to a war between the rich and the poor and said it was similar to litigation about the expropriation of land without compensation.
“We have been inundated with calls and enquiries from concerned people who were made to believe that indeed NHI has been declared unconstitutional by a court of law.”
“They have even started celebrating their perceived demise of NHI, “said Motsoaledi.
He said the “propaganda” describing it as a blow to National Health Insurance had been “hugely successful and is in the same mould as the Bell Pottinger propaganda machine of State Capture days”.
Motsoaledi did not give any indication of their plans to appeal against the ruling by Millar, saying they were still considering their options.
The National Health Act came into operation about 20 years ago and regulates how health services are supplied, but the certificate of need provisions that allow the government to determine where doctors can work has not been brought into operation yet. But these have now been declared unconstitutional. The National Health Insurance Act was passed in 2023 and signed into law by President Cyril Ramaphosa in May 2024 just before the election.