By Lehlohonolo Lehana.
Constitutional Court has declared the Certificate of Need (CoN), as contained in the National Health Insurance (NHI) Act, invalid and unconstitutional.
The certificate acted as a mandate for where healthcare facilities and healthcare providers could operate or expand.
The Constitutional Court ruling follows a High Court ruling in 2024.
The matter was brought by Solidarity, the Hospital Association of South Africa (HASA) and the Alliance of South African Independent Practitioners’ Associations and others against the Minister of Health, Dr Aaron Motsoaledi.
They requested to Constitutional Court to uphold a High Court ruling that sections 36 to 40 of the National Health Act are invalid and unconstitutional.
This ruling represents a major blow to the National Health Insurance (NHI). The Certificate of Need (CoN), as provided for in the NHI Act and the relevant sections of the National Health Act, would have afforded government the power to prescribe to healthcare practitioners where they may practise and which services they may render.
The health minister and director-general have previously opposed the confirmatory application.
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.
It added that the powers of the Minister and the Director-General of Health are not sufficiently constrained when issuing certificates of need and dealing with all other aspects of the scheme.
The court declared the sections invalid and ordered the health minister and director-general to pay the applicants’ costs.
Department of health spokesman, 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 they will continue with “all necessary health system strengthening preparations for the NHI as the mechanism for South Africa to realise universal healthcare coverage”.
The NHI similarly aims to centralise state control over healthcare, while giving the Minister of Health immense and sweeping power to alter the country’s healthcare systems.
Anton van der Bijl, Deputy Chief Executive of Solidarity, said the ruling has toppled one of the central pillars of the NHI.
“The Certificate of Need was far more than merely an administrative instrument. It was an instrument of centralisation and state control,” Van der Bijl said.
“Today the court said that South Africans are not state property and professionals are not pawns of the government.”
Several court cases are challenging the NHI are currently underway, including challenges to its constitutionality and the public participation process that was followed.
In February, President Cyril Ramaphosa agreed not to proclaim any provisions of the NHI Act pending judgments in the outstanding court challenges.