The National Department of Health is appealing in the Constitutional Court against a high court ruling that set aside sections of the National Health Act. (Photo: Rosetta Msimango / Spotlight) 
On Tuesday, 9 September, the Constitutional Court heard the case that the trade union Solidarity and other groups have brought against the National Health Act 61 of 2003 (NHA), challenging health legislation that would require doctors and health practitioners to obtain a “certificate of need” before being allowed to practise in a particular area.
The proceedings follow a ruling of the Gauteng Division of the High Court in Pretoria in July 2024, which made findings in favour of Solidarity and declared that sections 36 to 40 of the National Health Act were invalid in their entirety and should be severed from the Act. These sections establish and regulate the certificate of need scheme.
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The National Department of Health, along with Minister of Health Dr Aaron Motsoaledi and Director-General of the National Department of Health Dr Sandile Buthelezi, is appealing against the high court ruling in the Constitutional Court, seeking for the July 2024 order of constitutional invalidity in respect of the National Health Act sections to be set aside.
The National Health Act has been in operation since May 2005, except for the five sections in which the certificate-of-need scheme is set out.
Solidarity argues for constitutional invalidity
Solidarity represents more than 200,000 members, according to its website. It is joined in its case against the National Health Act by the South African Private Practitioners Forum and the Hospital Association of South Africa, among other groups.
It is seeking an order from the Constitutional Court confirming the high court order that found sections 36 to 40 of the National Health Act to be unconstitutional.
The certificate of need scheme mandates that every healthcare establishment, health agency and body of healthcare personnel providing specified healthcare services must obtain a certificate before they can operate, according to Solidarity’s court papers.
The Director-General of the National Department of Health has the authority to issue, renew or deny these certificates. The DG can impose conditions on the certificate, including stipulations regarding the “nature, type or quantum of services, the deployment of human resources and the use of diagnostic and therapeutic equipment”, according to Solidarity.
Advocate Margaretha Engelbrecht SC, representing Solidarity in the Constitutional Court, noted that the regulations defining which prescribed health services will be impacted by the certificate of need requirements had yet to be established, meaning the extent of the scheme remained “vague”.
Engelbrecht further argued that the Act conferred excessive powers on the minister of health and the director-general of the National Department of Health to make legislative decisions regarding the implementation of the certificate of need scheme.
Among the concerns raised by Solidarity’s legal team were:
- The 13 factors the DG needed to consider when deciding to issue a certificate of need did not include an applicant’s position, ambitions, agency or capacity to make meaningful choices about their own lives;
- The limited acknowledgement of the rights of private health establishments and service providers in the legislation, including rights to integration and professional reputations within the communities they currently served;
- The periodic renewal requirements for a certificate of need, which had yet to be finalised;
- The potential power of the state to compel the participation of health establishments in public-private partnerships; and
- The possible loss of employment among healthcare workers that could result from the denial of certificates to health agencies.
“The certificate of need scheme intrudes upon the rights of healthcare practitioners and health workers because the DG and the minister are, quite simply, not sufficiently constrained in dealing with the various aspects of the scheme to protect the rights and the interests of the affected individuals whose livelihoods are made subject to the scheme,” said Engelbrecht.
Realising the right to health
In the court papers laying out its grounds for appeal, the National Department of Health argued that the high court ruling failed to consider how the National Health Act provisions formed part of a broader initiative by government to meet its constitutional and statutory obligations to promote and fulfil the right to have access to healthcare services under section 27 of the Constitution.
It argued that there were substantial inequalities in access to healthcare, especially in the geographic distribution of facilities, and that the National Health Act sections on the certificate of need scheme were a mechanism to address some of the inequalities that existed.
Referencing the state’s arguments, Engelbrecht said: “They spoke of the need for licensing of practices… [with] a certificate of need on a geographical basis to promote equitable distribution of our limited resources.”
Through the criteria for issuing certificates, the state’s aim was to incentivise health agencies to direct their investment in the creation of new infrastructure towards underserviced areas, according to Engelbrecht. However, she argued that this “hope is not based in reality”.
“The migration of South African healthcare personnel to other countries is a well-known fact… If we make it so difficult for the practitioners here, will they stay? Will they move to the underserviced areas? Or will they go? After all, healthcare practitioners must be taken to be economic actors that will make rational decisions about their ability to earn a living at a different location.”
Engelbrecht claimed the certificate of need scheme would be unsuccessful in addressing both the shortage of doctors in the country and the limited number of healthcare establishments in certain areas.
“There simply is no rational connection between the stated purpose of the scheme and the outcomes that can be achieved,” she said.
Solidarity’s legal team said the certificate of need scheme was irrational and impermissibly vague, violated the separation of powers and unjustifiably infringed on constitutional rights.
Justice Narandran Kollapen of the Constitutional Court noted an argument by Solidarity’s legal team that the responsibility of the state to fulfil the right to access to healthcare should not be “foisted” on private healthcare practitioners. He questioned whether individual rights would always trump transformative objectives when it came to the redistribution of resources.
Engelbrecht responded: “If a certificate of need had the capacity to achieve transformation... then of course, it would have to be weighed. There is the justification exercise.
“Because it is a state that has to… in this case promote healthcare, and in aid of performing its duty… wants to infringe on the rights of individuals, it would have to bear the burden of showing that the way in which it has chosen to do this doesn’t go beyond that which is justifiable, and that there is not another less intrusive means to achieve this same purpose.”
State on achieving a purpose
Advocate Ngwako Maenetje SC, representing the National Department of Health, told the Constitutional Court that the National Health Act, with the certificate of need sections, constituted reasonable legislative measures taken by the state to comply with Section 27 of the Constitution.
According to Maenetje, many of the “attacks” on the certificate of need requirements stemmed from an incorrect interpretation of the provisions. He said there was “nothing constitutionally offensive” about a licensing provision that was subject to renewal or withdrawal, adding that the legislation provided for an internal remedy by way of an appeals process if a health establishment deemed a decision by the director-general to be adverse to its interests.
The director-general’s powers to investigate health establishments for the issuance of certificates would be limited to obtaining information relevant to “achieving the purposes” of the legislation, he continued.
Responding to Solidarity’s claim that certain aspects of the legislation were vague, Maenetje said that “the law does not require perfect lucidity, but reasonable certainty”.
“On the issues raised about rationality... there must be a rational nexus between the legislative scheme and the pursuit of a legitimate governmental purpose… [The National Department of Health] is not required to prove with certainty that the scheme is going to achieve the purpose. What they need to prove is that for the purpose identified, the measures have a likelihood or may achieve the purposes,” said Maenetje.
In its court papers, the National Department of Health argued that section 36 of the National Health Act didn’t violate the right to freedom of trade, occupation and profession enshrined in section 22 of the Constitution.
“Section 36 of NHA does not affect the continuing choice of medical practitioners to remain practitioners… Rather, it outlines four instances in which a certificate of need is required. None of these instances adversely impacts a person’s decision to pursue a career as a medical practitioner,” it stated.
Justice Zukisa Tshiqi asked Maenetje why the regulations supporting sections 36 to 40 of the National Health Act had yet to be established, more than 20 years after the Act came into effect.
Maenetje responded that draft regulations were published on 15 June 2021. However, after Solidarity launched its case against the National Health Act in December 2021, the process for finalising the regulations was suspended pending the outcomes of the court proceedings.
The National Department of Health’s legal team asked for the high court’s ruling to be set aside, or for a suspension of the declaration of invalidity for 24 months to allow the regulation-making process for the Act to continue in order to address any defects the Constitutional Court might identify in the legislation.
The Constitutional Court has reserved judgment in the case. DM