The Constitutional Court has effectively killed off the certificate of need scheme, a framework that would have granted the government significant control over where medical practitioners and nurses could work. This ruling, which invalidates the scheme, has major implications for the healthcare sector. Despite this decision, the South African government asserts that the ruling does not impact the National Health Insurance (NHI) Act. This stance comes even though government lawyers had previously argued in court that the certificate of need scheme represented "a central pillar in the implementation of the National Health Insurance Act," emphasizing its critical role in the proposed healthcare reforms.
However, Department of Health spokesperson Foster Mohale stated that no part of the National Health Insurance Act had been declared unconstitutional. Mohale further clarified that the recent judgment did not pertain to the NHI Act itself, emphasizing that no section of the NHI has been declared unconstitutional. Mohale said, "The sections in question were passed by Parliament 23 years ago and have never been brought into effect. Thus, there is no direct impact of the judgment on the NHI. Some within the political and private health sector have rushed to mislead the public. No section of the NHI has been declared unconstitutional." Mohale added, "The Department will continue with all necessary health system-strengthening preparations for the NHI as the mechanism for South Africa to realise universal healthcare coverage."
Court Strikes Down Certificate of Need
Legal provisions for the certificate of need scheme were never brought into operation, despite being passed by Parliament 23 years ago. Foster Mohale stated, "The sections in question were passed by Parliament 23 years ago and have never been brought into effect. Thus, there is no direct impact of the judgment on the NHI. Some within the political and private health sector have rushed to mislead the public. No section of the NHI has been declared unconstitutional." The Constitutional Court found that no purpose would be served by referring the section of the law back to Parliament for rectification, mandating its severance from the law. This ruling stands as the final word on the issue, with no appeals possible. The Constitutional Court is the final word on the issue, and no appeals can be brought against this ruling, solidifying its immediate and lasting effect.
The application to the Constitutional Court was initiated by a coalition of organizations, including the Solidarity trade union, the Alliance of South African Independent Practitioners Association, the South African Private Practitioners Forum, several doctors, and the Hospital Association of South Africa. These applicants sought to confirm an earlier ruling by Judge Anthony Millar in 2024, which had declared the provisions surrounding the certificate of need unconstitutional. The case specifically involved sections 36 to 40 of the National Health Act, which originally came into operation on 2 May 2005.
Acting Justice Savage noted that a previous ruling on the matter, delivered 21 years ago, had already set aside the certificate of need provisions. The court explicitly ruled that no rational connection had been demonstrated between the certificate of need provisions and the stated government objectives of enhancing access to health services or creating uniformity in the provision of such services. This lack of rational connection was a critical factor in the court's decision. Acting Justice Savage commented on the broader context, stating, "Despite the Constitution’s commitment to social justice and the improvement of the quality of life for everyone, the provision of health services in South Africa remains deeply inequitable, with access differing starkly by geographic location and between the public and private sectors." This observation noted the persistent challenges in achieving equitable healthcare access across the nation.
Government's Stance on NHI
Government lawyers contended that the certificate of need scheme was designed to empower the minister to ensure a fair and equitable geographic distribution of health services across South Africa. They argued that the scheme aimed to promote access to healthcare for disadvantaged communities and areas with limited healthcare infrastructure. This was presented as a key mechanism to address historical imbalances. The government lawyers maintained that the certificate of need sought to prevent an over-concentration of health services in affluent areas, thereby fostering a more balanced distribution of medical professionals and facilities.
Despite the Constitutional Court's decision, Department of Health spokesperson Foster Mohale stated there is no direct impact of the judgment on the National Health Insurance (NHI). Mohale emphasized, "The sections in question were passed by Parliament 23 years ago and have never been brought into effect. Thus, there is no direct impact of the judgment on the NHI. Some within the political and private health sector have rushed to mislead the public. No section of the NHI has been declared unconstitutional." Mohale affirmed that the Department of Health will continue with all necessary health system-strengthening preparations for the NHI. He added, "The Department will continue with all necessary health system-strengthening preparations for the NHI as the mechanism for South Africa to realise universal healthcare coverage." This reiterates the government's commitment to the NHI despite the court's ruling on the certificate of need.
Health Minister Dr Aaron Motsoaledi had previously rejected the idea that the court’s ruling represented a setback for the NHI, describing such claims as "propaganda." Dr Motsoaledi clarified his position, stating that the certificate of need was not considered a cornerstone of the NHI Act. He maintained that its invalidation would not derail the broader implementation of the National Health Insurance.
However, other organizations offered a different perspective on the certificate of need scheme. Solidarity, a trade union, stated that the certificate of need was one of the most important mechanisms through which the government intended to exercise greater control over the health industry. Anton van der Bijl, representing Solidarity, supported this view, asserting that the certificate of need was an instrument of centralisation and state control. He argued that the scheme was a critical tool for the government's planned overhaul of the healthcare system.
Dissenting Views and Inequality Context
Acting Justice Kate Savage, in the Constitutional Court’s judgment, noted the persistent inequality within the country, stating, "South Africa remains one of the most unequal countries in the world." She further observed that three decades after the establishment of democracy, the progressive realization of the right to access health services continues to be an unfulfilled promise for most South Africans. Justice Savage attributed this challenge to the lasting impact of past "destructive and discriminatory policies and practices," despite the constitutional obligation placed on the state to progressively achieve this right through legislative and other measures. She noted the case involved sections 36 to 40 of the National Health Act, which the respondents presented as essential for addressing the urgent need for equitable health services for the majority of the population.
Justice Savage also commented on the broader context of healthcare provision, asserting that "Despite the Constitution’s commitment to social justice and the improvement of the quality of life for everyone, the provision of health services in South Africa remains deeply inequitable, with access differing starkly by geographic location and between the public and private sectors." This statement shows the significant disparities in healthcare access across the nation, emphasizing the long-standing challenges that the certificate of need provisions aimed, albeit unsuccessfully, to address.
Conversely, Anton van der Bijl of Solidarity presented a different interpretation of the ruling's implications. He asserted that the court's decision effectively dismantled one of the core components upon which the government’s healthcare plans, which he described as "distorted" and "destructive," were founded. Van der Bijl's statement indicates a view that the certificate of need was a key instrument for the government's broader healthcare strategy, and its removal represents a significant blow to those plans. He further elaborated that the ruling toppled one of the central pillars on which the government’s "distorted" and "destructive" healthcare plans were based, reinforcing the notion that the certificate of need was more than just an ancillary provision.
