South Africa’s Constitutional Court has ruled that key sections of the National Health Act relating to the controversial “Certificate of Need” system are unconstitutional, delivering a major victory for doctors, private hospitals and healthcare practitioners across the country.
The judgment removes Sections 36 to 40 of the Act, which would have required healthcare providers and facilities to obtain government approval before opening, expanding, modifying or continuing operations.
The Certificate of Need framework formed part of broader government efforts to reshape the country’s healthcare system and improve the distribution of medical services in underserved communities. However, critics argued that the policy would have handed excessive control over the healthcare sector to the state.
Under the proposed system, healthcare practitioners could have faced criminal penalties, including fines or up to five years in prison, for operating without the required certificate.
Court finds scheme irrational and unconstitutional
The Constitutional Court’s ruling follows a 2024 High Court judgment that found the Certificate of Need system to be procedurally irrational and inconsistent with constitutional protections.
The case was brought by trade union Solidarity, the Hospital Association of South Africa (HASA), and the Alliance of South African Independent Practitioners’ Associations.
In its final ruling, the Constitutional Court confirmed the High Court’s findings and dismissed the government’s cross-appeal.
“The certificate of need scheme is not rationally connected to the objective of ensuring transformation and a more equitable distribution of health services,” the court said.
Judges also found that the powers granted to the Minister of Health and the Director-General of Health were overly broad and lacked sufficient safeguards.
According to the ruling, the system unjustifiably limited the constitutional right of healthcare professionals to choose their occupation and place of practice freely.
The decision represents one of the most significant legal setbacks for healthcare centralisation efforts linked to South Africa’s proposed National Health Insurance (NHI) system.
Concerns over state control of healthcare
Opponents of the Certificate of Need policy had long argued that it would allow the state to determine where doctors, dentists, nurses and specialists could work, as well as which services private facilities would be permitted to offer.
Supporters of the policy maintained that the measures were necessary to address deep inequalities in healthcare access between urban and rural areas.
South Africa’s healthcare system remains sharply divided between an overstretched public sector and a well-resourced private sector serving a smaller portion of the population.
The government has promoted the NHI as a mechanism to reduce inequality and expand healthcare access nationwide. Critics, however, have repeatedly raised concerns over administrative control, funding sustainability and the potential weakening of private healthcare services.
Solidarity Deputy Chief Executive Anton van der Bijl described the Constitutional Court ruling as a landmark victory against excessive state intervention.
“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.
He added that the judgment sends a strong message that healthcare professionals cannot be compelled by government regulation to compensate for failures within the public healthcare system.
The ruling is expected to have major implications for the future implementation of NHI-related reforms and broader healthcare policy debates in South Africa.
Source: Adapted from Constitutional Court proceedings and public statements.
