The court declared the sections invalid and ordered the health minister and director-general to pay the applicants' costs.
Picture: iStock
South Africa’s highest court has dealt a significant blow to the National Health Insurance (NHI) framework, declaring unconstitutional the provisions that allowed the state to dictate where healthcare professionals could practise.
Certificate of need provisions ruled unconstitutional
This confirmed a High Court ruling that the “certificate of need” provisions in the National Health Act are unconstitutional and invalid.
In July 2024, Gauteng High Court Judge Anthony Millar found that Sections 36 to 40 of the National Health Act were inconsistent with the constitution.
Those sections required healthcare service providers and facilities to first obtain a certificate of need before they could begin operating.
The certificate, which is valid for 20 years, determines where doctors and other health professionals are permitted to work.
It also capped the number of healthcare practitioners and establishments that could operate in a given area.
Millar previously found that the provisions violated several constitutional rights, having failed to account for the rights of private healthcare owners and workers, or the social, professional and financial consequences for them.
The High Court further noted that the law risked unlawfully stripping away property rights, and the matter was subsequently referred to the Constitutional Court for confirmation.
Health minister fights back
While the case was heard by the apex court last year-with arguments presented by Solidarity, the Alliance of South African Independent Practitioners Associations, the South African Private Practitioners Forum, the Hospital Association of South Africa, and several other healthcare groups-it was not without resistance.
The health minister and director-general have previously opposed the confirmatory application, arguing that the scheme was necessary for the transformation of the healthcare system and to address spatial apartheid and systemic disparities.
They sought to have the declaration of invalidity refused on the basis that the provisions were not yet operational and that the necessary regulations and statutory infrastructure had not been finalised.
The challenge was mounted against the minister of health, the president, and the Department of Health’s director-general.
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.
The court found that although the scheme was not yet operative, a genuine dispute existed between the parties.
Minister’s power was unconstrained
It noted that “the challenge raised concerns as to the inherent constitutional invalidity of the provisions as they appeared facially,” and that any relief granted would have a direct effect and settle the issues for both parties.
While accepting that the scheme’s stated purpose of equitable geographic distribution of healthcare was “patently legitimate” and “consistent with the state’s duty to progressively realise the right of access to health services,” the court found no rational connection between that purpose and the means used to achieve it.
With no regulations defining the scope of the scheme, healthcare providers were left uncertain as to what the law required of them.
The minister was effectively left with sole discretion to determine the intended scope of the scheme.
“A power which was unconstrained and risked being in contrast with what the legislature intended.”
The court was clear that it is “impermissible to use regulations to interpret legislation.”
Sections declared invalid
Furthermore, the court found that the scheme failed to account for the deeply personal nature of a healthcare professional’s career choices.
“A person’s choice of trade, occupation or profession depends on considerations of location, nature, speciality, profitability and financial sustainability,” the judgment read, noting that under the provisions, the Director-General’s decision would have prevailed over those choices entirely.
According to the court, some providers would consequently have faced the burden of “either practising in a place or speciality contrary to their choosing, or risking criminal sanction.”
On the right to trade, the court was unequivocal: “This limitation was not justifiable. Robust protection of the right to trade enhances South Africa’s capacity to fulfil other rights, including the right to healthcare.”
The court declared the sections invalid, found they were unrelated to the rest of the Act, and ordered that they be severed in their entirety.
The health minister and director-general were ordered to pay the applicants’ costs, including those of two counsel.
(1/5) Judgment on 18 May 2026 at 09h00: Sections 36 to 40 of the National Health Act 61 of 2003 are unconstitutional and are consequently severed from the Act.
– Constitutional Court (@ConCourtSA) May 18, 2026
A central pillar of the NHI collapses
Solidarity described the ruling as deeply significant, saying it represented a powerful pushback against the state’s drive to centralise control under National Health Insurance.
“One of the NHI’s central pillars has collapsed today. The Certificate of Need was far more than merely an administrative instrument. It was an instrument of centralisation and state control,” said Solidarity deputy CEO Anton van der Bijl.
Van der Bijl went further, saying the judgment drew a firm line between state authority and individual freedom.
“The government wanted to move health practitioners around like its own pawns on a chessboard to cover up its own failures. Today the court said that South Africans are not state property and professionals are not pawns of the government,” he said.
Additional reporting by Molefe Seeletsa
