The controversial 'certificate of need' (CoN), which government says is essential to ensure the equitable distribution of healthcare but which opponents say infringe on the rights of doctors and healthcare workers, took centre-stage at the Constitutional Court this week.
The top court reserved judgment on Tuesday in the case in which trade union Solidarity and the Board of Healthcare Funders want the court to confirm a Gauteng High Court (Pretoria) ruling in July 2024 that struck down the CoN provisions in the National Health Act of 2003. But the state, represented by the Health Minister, the Presidency and the DG of Health, has opposed the application, asking the court to overturn the ruling.
Sections 36 to 40 of the Act require every health establishment, health agency and health personnel providing prescribed services to obtain a CoN before they may operate.
But in its ruling, the High Court had found these provisions unconstitutional and said they should be severed from the Act.
In his judgment last year, Judge Anthony Millar said the provision was “irrational, incomplete and imposed obligations without considering the professional, financial and social impact on private healthcare providers”. The provision also risked arbitrary deprivation of property and could amount to retrospective regulation, he added.
In the Constitutional Court, the applicants argued that the provisions unjustifiably infringed several constitutional rights, including dignity, freedom of movement, occupational choice, property and access to healthcare.
They said the provisions give the Minister and Director General of Health wide powers to determine where health practitioners may work and how private facilities may operate, and that they allow the state to compel medical providers to share resources with the public sector without compensation.
The applicants further submitted that less restrictive regulatory mechanisms already exist to ensure fair access to healthcare and that the certificate of need is unnecessary and intrusive.
But government lawyers argued that the CoN is essential to achieving the NHI’s goals, particularly in redistributing healthcare resources and ensuring equitable access.
The state maintained that the certificate of need applies only in limited circumstances, like the establishment or expansion of health facilities or the provision of prescribed services. It added that any decisions could be subject to judicial review.
Advocate Margaretha Engelbrecht SC, representing Solidarity, noted that the regulations defining which prescribed health services will be affected by the CoN requirements had yet to be established, meaning the extent of the scheme remained “vague”, reports Daily Maverick.
Government lawyers argued that the certificate is essential to achieving the NHI’s goals, particularly in redistributing healthcare resources and ensuring equitable access, and that it applies only in limited circumstances, like the establishment or expansion of health facilities or the provision of prescribed services. It added that any decisions could be subject to judicial review.
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 obligations to promote and fulfil the right to access to healthcare services, that substantial inequalities exist in this regard especially in the geographic distribution of facilities, and that the National Health Act sections on the certificate scheme were a way to address some of these.
In argument, 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.”
Yet while the state’s aim was to incentivise health agencies to direct their investment in the creation of new infrastructure towards under-serviced areas, Engelbrecht said 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 CoN scheme would be unsuccessful in addressing both the shortage of doctors 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.
Advocate Ngwako Maenetje SC, representing the Health Department, said the National Health Act, with the CoN sections, constituted reasonable legislative measures taken by the state to comply with Section 27 of the Constitution, and that there was “nothing constitutionally offensive” about a licensing provision that was subject to renewal or withdrawal.
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 added.
Responding to Solidarity’s claim that certain aspects of the legislation were vague, Maenetje said “the law does not require perfect lucidity, but reasonable certainty”.
Judge 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 Health Department’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 so as to address any defects the Constitutional Court might identify in the legislation.
Cape takes on NHI
Meanwhile, last week the Western Cape filed papers with the Constitutional Court to challenge the Act’s validity, arguing that the legislation was unconstitutional and that the public had not been adequately consulted.
The Cape Argus reports that in papers, Western Cape Premier Alan Winde and provincial Health & Wellness Minister Mireille Wenger accuse the National Council of Provinces (NCOP) of failing to adequately consult the people of the Western Cape, thereby violating their right to be heard in the law-making process.
“The NHI … was rushed through Parliament with blatant disregard for meaningful public input,” said Wenger, while Winde said that public participation “cannot be a tick-box exercise”.
In its court filing, the province argued that the NCOP ignored key submissions from provincial consultations and failed to address substantive concerns raised by stakeholders, including civil society and medical professionals.
However, opponents have slammed the Western Cape for spending money on the legal challenge while its own health system is sick and struggling – running on a tight budget and having lost more than 1 500 staff in the previous financial year.
Khalid Sayed, leader of the opposition in the legislature, said the funds used for the court case should rather be redirected to the delivery of healthcare.
During last week’s Health Portfolio Committee meeting, the department presented statistics showing that 1 573 staff had left between March 2024 and March 2025.
It said Treasury’s austerity measures were to blame and that this was a national issue.
“The health sector has been under enormous pressure,” a representative said. “The impact of the austerity measures has been felt absolutely everywhere. It has been brutal…and it has been an emotional journey for all involved to be reduced like this.”
Asked to explain the reduction in staff, Wenger said: “Due to the national fiscal emergency, provincial budgets were cut. For the Western Cape, R6bn was removed from the Provincial Equitable Share over the 2024 medium-term expenditure framework.”
She added that it was very encouraged that the Western Cape was now appointing more healthcare workers than are leaving the system, one of only two provinces “to have reached this important turnaround”.
At Groote Schuur, which has one of the highest trauma burdens in the world, thousands of emergency cases are managed each year. Road traffic accidents alone account for between 20% and 30% of admissions, and in 2023, more than 4 500 emergency surgeries were conducted.
The hospital treats more than 50 000 inpatients and 500 000 outpatients annually.
Despite the crumbling infrastructure and mounting pressure on overstretched staff, the department, in partnership with Groote Schuur and the Groote Schuur Hospital Trust, said it was preparing to launch its “world class emergency centre” by 2026.
At the Khayelitsha District Hospital, patients have to sleep on cold floors, sit on chairs for days, and even buy their own medication due to severe overcrowding, staff shortages, and a chronic lack of resources.
In the provincial legislature last week, union Hospersa said its members were facing ongoing staff shortages across all hospitals, clinics, and EMS services.
Cape Argus PressReader article – WC challenges flaws in NHI Act (Open access)
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