Health care service providers are required to get a certificate of need before they can operate.
The Constitutional Court (ConCourt) has been asked to confirm that parts of the National Health Act (NHA) are unlawful.
On Tuesday, the ConCourt heard arguments from trade union Solidarity, the Alliance of South African Independent Practitioners Associations, the South African Private Practitioners Forum, the Hospital Association of South Africa and several other health care groups.
They are challenging the law against the minister of health, the president and the department of health director-general.
What is the National Health Act case about?
The applicants want the ConCourt to confirm a July 2024 ruling by the Gauteng High Court in Pretoria.
Judge Anthony Millar found then that sections 36 to 40 of the NHA were unconstitutional.
These sections require that health care service providers and facilities such as private hospitals, pharmacies, clinics and private rooms must first obtain a certificate of need before they can operate.
The certificate determines where doctors and other health professionals are allowed to work and is valid for 20 years.
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The certificate scheme also places a limit on how many healthcare practitioners and establishments are allowed to operate in an area.
Millar ruled that the provisions violated several constitutional rights as they failed to consider the rights of private health care owners and workers, as well as the social, professional and financial impact on them.
The high court also noted that the law could unfairly take away property rights.
The matter was subsequently referred to the ConCourt.
However, the health minister and director-general are opposing the confirmatory application and seek leave to appeal Millar’s judgment.
Watch the case below:
Arguments from applicants
Advocate Margaretha Engelbrecht argued on behalf of the applicants.
She told the ConCourt about three private practitioners – Barbara Pretorious, Breaan Spies and Anja Heyns – who have run their own practices for more than 20 years and invested heavily in equipment.
Engelbrecht said the law would have a serious impact on professionals like them.
“Doctors, nurses, physiotherapists, dieticians, occupational therapists, lobotomists, dentists, carers and individuals who’s calling as health care practitioners are as entitled as any other citizen in this country to decide where they want to live and work,” she said.
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The lawyer told the court that Section 40 of the NHA makes it a crime to operate without a certificate, punishable by a fine or up to five years in prison.
She also highlighted Section 36(1) that states no healthcare establishment can be built, changed or operated after 24 months from 2023, the year the NHA took effect, unless it has a certificate of need.
She warned that employees working for health care service providers and facilities would also be affected.
“The individual impact cannot be avoided. What cannot also be ignored is that if the health establishment or health agency does not obtain a certificate, those employed by them will be left without employment unless and until they can find employment with another agency or establishment assuming that they have staff requirements.”
Engelbrecht added that because health services are being reorganised, it will be difficult for affected workers to find new jobs.
National Health Act gives ‘broad discretionary power’
Engelbrecht further argued that section 36(3), which sets out the criteria for issuing the certificates, ignores key factors.
“Not one of those factors that the director-general must consider in the Act includes the applicants’ position, goals and ambitions.
“The applicants’ agency and capacity to make meaningful choices about their own lives does not seem to warrant consideration under this scheme nor apparently will it be relevant that a health care provider or prospective health care provider or has ties with the community, has built a reputation or maintains relationships with the people they serve.”
She also said the law gives too much unchecked power to the minister and director-general.
“We submit that the mandatory considerations in section 36(3) are broad and vague, rendering them functionally meaningless and grants the director-general and the minister significant leeway in their interpretation and implementation,” Engelbrecht told the court.
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“They may take the livelihood of the individuals without actually being able to ensure that those practitioners will go elsewhere and redistribute to another area.”
Additionally, Engelbrecht warned that the certificate scheme could push more healthcare professionals to leave South Africa.
“We see that in 2019 the then health minister explained that there was a shortage of health care practitioners globally and that it was attractive for those from low and middle income countries to emigrate to other countries in search of better living and working conditions.
“If we make it so difficult for the practitioners here, will they stay, will they move to the underserviced areas or will they go?”
