Health Minister Aaron Motsoaledi at the social services cluster of ministers' address in the National Assembly in Cape Town on 4 September 2024. (Photo: Gallo Images / Brenton Geach) After two decades of legal battles, a crucial piece of legislation, which would have given the government control over where medical practitioners and nurses could work, has been killed off by the Constitutional Court.
While the Department of Health’s lawyers labelled the certificate of need scheme “a central pillar in the implementation of the National Health Insurance Act” in court, spokesperson Foster Mohale said the department wanted to point out that no part of the National Health Insurance Act had been declared unconstitutional.
Legal provisions for the certificate of need scheme were never brought into operation.
In their submissions to the Constitutional Court, the government lawyers stated: “The scheme [regulating the certificates of need] empowers the minister to ensure a fair and equitable geographic distribution of health services across South Africa.
“This is to promote access to healthcare for disadvantaged communities or in areas with limited healthcare infrastructure and to prevent an over-concentration of health services in affluent areas, catering only to the few who can afford them.”
/file/attachments/orphans/ED_601805_407344.jpg "Health Minister Aaron Motsoaledi (Photo: Gallo Images / Beeld / Deaan Vivier)")
Mohale said the department wanted to clarify that the judgment did not relate to the National Health Insurance (NHI) Act.
“The sections in question were passed by Parliament 23 years ago and have never been brought into effect. Thus, there is no direct impact of the judgment on the NHI. Some within the political and private health sector have rushed to mislead the public. No section of the NHI has been declared unconstitutional.
“The Department will continue with all necessary health system-strengthening preparations for the NHI as the mechanism for South Africa to realise universal healthcare coverage,” Mohale said.
The Constitutional Court said that no purpose would be served by referring the section of the law back to Parliament for rectification – it had to be severed from the law.
The Constitutional Court is the final word on the issue, and no appeals can be brought against this ruling.
The application was brought by the Solidarity trade union, the Alliance of South African Independent Practitioners Association, the South African Private Practitioners Forum, several doctors and the Hospital Association of South Africa.
They asked the court to confirm an earlier ruling by Judge Anthony Millar in 2024 that the provisions surrounding the “certificate of need” were unconstitutional.
At the time, Health Minister Dr Aaron Motsoaledi also rejected the notion that the court’s ruling was a blow to the NHI, labelling such claims as “propaganda”. He clarified that the certificate of need was not a cornerstone of the NHI Act.
/file/attachments/orphans/ED_607975_827777.jpg "The Constitutional Court in session. (Photo: Gallo Images / Luba Lesolle)")
Majority’s access to health services ‘illusory’
But this is what Acting Justice Kate Savage wrote in the first paragraph of the Constitutional Court’s judgment: “South Africa remains one of the most unequal countries in the world. Thirty years after the advent of democracy, the progressive realisation of the right to access to health services remains illusory for most of our people, deeply impacted by the destructive and discriminatory policies and practices of the past.
“This is so despite the constitutional duty on the state to take reasonable legislative and other measures to progressively realise this right. This case involves sections 36 to 40 of the National Health Act[2] (Act), legislation that the respondents posit as necessary to address the urgent need to achieve equitable health services for the majority of South Africans.”
Solidarity said in a statement on the judgment that the certificate of need was one of the most important mechanisms by which the government wanted to exercise greater control over the health industry.
Anton van der Bijl, the deputy chief executive of Solidarity, said the ruling toppled one of the central pillars on which the government’s “distorted” and “destructive” healthcare plans were based.
‘Instrument of state control’
“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.
“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,” said Van der Bijl.
Solidarity further emphasised that the ruling had greater significance for the fight against the NHI and served as strong opposition to the constitutionality of state centralisation, a core principle of the NHI.
The National Health Act was originally brought into operation on 2 May 2005.
Acting Justice Savage pointed out that the first ruling on the matter, delivered 21 years ago, set aside the certificate of need provisions.
“Despite the Constitution’s commitment to social justice and the improvement of the quality of life for everyone, the provision of health services in South Africa remains deeply inequitable, with access differing starkly by geographic location and between the public and private sectors,” Savage said.
The court, however, ruled that no rational connection had been shown to exist between the certificate of need provisions and the expressed government purpose of enhancing access to health services, or creating uniformity in respect of the provision of such services. DM