JOHANNESBURG — The Constitutional Court has delivered a unanimous judgment striking down the government’s controversial certificate of need scheme, a ruling that Professor Benjamin Smart of the University of Johannesburg says ensures equal access to healthcare without unfairly limiting private providers.
The apex court confirmed a 2024 High Court ruling that sections 36 to 40 of the National Health Act are unconstitutional and invalid. The judgment effectively severs those provisions from the Act, meaning they no longer have legal force.
The scheme would have allowed the health department to decide whether private doctors, clinics, and hospitals could operate. Healthcare providers would have needed state approval to practice, expand, or renew licenses, with non-compliance carrying penalties of up to five years in prison.
Government had argued that the law aimed to improve equitable access to healthcare services. However, the court found that the legislation gave the director-general overly broad powers without proper safeguards or legal certainty.
Professor Smart, from the University of Johannesburg, said he was not hugely surprised by the ruling. He explained that the court acknowledged the need for equal access to healthcare and did not rule against pursuing universal health coverage. The judgment focused narrowly on sections requiring healthcare professionals to obtain a state-issued certificate of need to establish, expand, acquire equipment, provide prescribed services, or continue operating.
“It essentially meant that the government could determine whether private healthcare professionals could do any of those things,” Smart said, noting that this drew attention to Section 22 of the Constitution. The court concluded it unjustifiably limited the constitutional right to choose a trade, occupation, or profession.
Smart argued that reducing services in affluent areas like Sandton does not help improve services in rural government hospitals. “You want the gap to be narrowed by the poor gaining access to more healthcare services, not the rich having access to fewer,” he said.
For ordinary people in townships or villages, Smart said the ruling has no material impact on those receiving government healthcare. Requiring private providers to gain a certificate of need in Sandton “doesn’t in any way affect the services that are being made available in government clinics in rural areas.”
For suburban residents, the ruling means healthcare professionals can continue to establish, expand, acquire equipment, provide services, and operate without state permission. Smart described it as “at most alleviating an administrative burden” and “at best meaning that we won’t see reductions in healthcare services being provided in private clinics.”
Asked whether the judgment leaves the Department of Health or government with a bloody nose, Smart said it probably does a little, but added: “I don’t think they’ll be too disheartened. It doesn’t really affect the overall agenda of NHI in the longer term.”
Smart noted that more court cases are coming, including challenges to Section 33, which states that any healthcare services covered by NHI cannot be covered by medical aid schemes. “If that’s overturned, which it might well be, that would sort of undermine the intentions of the NHI Act,” he said.
Regarding whether the ruling strengthens separate legal challenges by bodies like the Board of Healthcare Funders, Smart said those are separate issues. Today’s ruling concerns what services healthcare professionals may provide, while challenges to the NHI Act concern whether medical aid schemes can provide coverage for those services.