Acting Health DG Nicholas Crisp has issued notification to provincial departments explaining that private hospitals can still be registered, clarifying their confusion about how a Constitutional Court ruling should be understood.
This comes after a completed brand new 65-bed hospital in Limpopo had to resort to legal action after being told by the local Health Department that a recent Constitutional Court ruling meant its final inspection could not be completed – and it could not go ahead and open, reports News24.
The mix-up follows the recent victory by Solidarity in its landmark Constitutional Court case declaring sections of the National Health Act unconstitutional.
In this latest case, the Limpopo hospital had received provincial approval and was ready for final inspection when, in June, the local Health Department apparently halted the process, citing the Constitutional Court judgment – which had confirmed that sections 36 to 40 of the National Health Act of 2003 were unconstitutional and invalid.
These sections barred anyone from opening, building or buying a health facility without a certificate of need, among other things. However, the sections never came into force.
They formed part of the NHA, which is separate from the National Health Insurance Act.
The hospital’s owners, a company called Mogalakwena Health, then launched urgent legal action in the Gauteng High Court to compel the department to conduct a final inspection and issue it with a registration certificate.
The company said construction began in 2024 and was completed earlier this year. The hospital has 65 inpatient beds, two operating theatres, an accident and emergency centre, and specialist consulting suites.
Hermann Kohloffel, a director of Mogalakwena Health, said in an affidavit that the hospital was preparing for a final inspection in June when a provincial official told him that, after the Solidarity case, Limpopo Health would “not be able to conduct the final Inspection” or issue a certificate of registration.
The reason given was that such inspections were no longer mandated or authorised. New legislation was needed before they could restart.
Without the certificate, the company could not obtain a practice number from the Board of Healthcare Funders or secure other approvals required to begin operating. It was losing tens of thousands of rands daily.
Crisp’s guidance note appears to remove the legal obstacle. He said that after obtaining a legal opinion, the national department had concluded that provinces could continue to license private facilities.
He added that sections 36 to 40 of the National Health Act were never brought into force, meaning that repealing them could not change how the system worked.
The “statutory anchor” for inspection and licensing remains another section of the Act, which is still in force.
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