These sections relate to the “Certificate of Need”, which was a state programme designed to control where healthcare practitioners or practices could operate.<\/p>\n\n\n\n
Under the scheme, a certificate was required to establish, construct, modify, acquire, or continue operating a health establishment or agency in the country.<\/p>\n\n\n\n
This extended to acquiring health technology or providing prescribed health services.<\/p>\n\n\n\n
The Director-General was given the authority to consider granting such a certificate, especially with regard to the \u201cequitable distribution\u201d of health services.<\/p>\n\n\n\n
According to the Health Department, the certificate was a tool to ensure that healthcare providers would set up in areas where services were lacking, not just in areas where people could afford them.<\/p>\n\n\n\n
However, confirming a 2024 High Court ruling to the same effect, the Constitutional Court held that the scheme was irrational, unconstitutional and not connected to the state’s goals.<\/p>\n\n\n\n
The court found that it violated several constitutional rights of the affected parties and that it granted the Health Department and the Director General excessive power.<\/p>\n\n\n\n
The Court did not direct the laws back to the Department for correction, opting instead to excise them entirely.<\/p>\n\n\n\n
The victors in the matter\u2014namely, Solidarity, the Hospital Association of South Africa (HASA) and the Alliance of South African Independent Practitioners\u2019 Associations\u2014welcomed the ruling.<\/p>\n\n\n\n
Solidarity in particular framed the victory as not only a win for healthcare practitioners in general, but also as a blow to a “central pillar” of the NHI.<\/p>\n\n\n\n
Blow to the NHI – or not<\/h2>\n\n\n\n![\"\"](\"https:\/\/businesstech.co.za\/news\/wp-content\/uploads\/2025\/02\/aaron-motsoaledi-1-1024x576.jpg\")
<\/a><\/figure>\n\n\n\nAccording to Solidarity, the Certificate of Need represented a key tool for the state to centralise power over the healthcare sector by controlling where healthcare workers could work.<\/p>\n\n\n\n
It argued that centralisation was a core theme of the NHI, and that the certificate was key to achieving it.<\/p>\n\n\n\n
However, while noting the judgment, the Health Department said that the ruling had nothing to do with the NHI Act.<\/p>\n\n\n\n
“The sections in question were passed by Parliament 23 years ago and have never been brought into effect,” it said.<\/p>\n\n\n\n
“Thus, there is no direct impact of the judgement on the NHI…No section of the NHI has been declared unconstitutional.”<\/p>\n\n\n\n
The Department said it would continue with all necessary preparations to strengthen the health system for the NHI.<\/p>\n\n\n\n
However, this is in the wider context of the NHI case currently before the Constitutional Court, which has put a stay on further implementation of the scheme until the matter is settled.<\/p>\n\n\n\n
Hearings were held earlier in May surrounding the public participation process before the Act was signed into law in 2024.<\/p>\n\n\n\n
Because the outcome of the case has the potential to send the NHI laws back to the department and Parliament for processing, litigation on other aspects of the scheme has been put on hold.<\/p>\n\n\n\n
In turn, the state has agreed to stay the promulgation of the scheme.<\/p>\n\n\n\n
If the Constitutional Court rules in favour of the challengers, who claim the public participation was flawed, the NHI faces years of redrafting and processing.<\/p>\n\n\n\n
However, even if the court rules in favour of the state, the other cases will continue.<\/p>\n\n\n\n
Among these cases are issues very similar to those found in the latest Certificate of Need case\u2014specifically, arguments that the NHI Act gives the Minister and the Department inordinate power to completely restructure healthcare in the country.<\/p>\n\n\n\n
There are also similar arguments around violations of constitutional rights, such as deprivation of business, removal of freedom of choice and limiting access to healthcare.<\/p>\n\n\n\n
Some of the key challenges are coming from the Board of Healthcare Funders, Solidarity, Sakeliga, AfriForum, the Hospital Association of South Africa, the South African Private Practitioners Forum and the Western Cape Provincial Government.<\/p>\n\n\n\n
Aside from the public participation process, various provisions of the Act that are being challenged include:<\/p>\n\n\n\n
\n- The rationality of signing the Act into law;<\/li>\n\n\n\n
- Various sections related to private medical aids;<\/li>\n\n\n\n
- Sections related to specialist services;<\/li>\n\n\n\n
- The overall constitutionality of the Act, particularly in relation to arbitrary deprivation of business, removal of freedom of choice, and limiting access to healthcare.<\/li>\n<\/ul>\n\n\n\n
Attempts have been made to bring the various litigating parties and the government together to settle the matters out of court, but both sides have rejected them.<\/p>\n","protected":false},"excerpt":{"rendered":"
The National Department of Health says the latest ruling by the Constitutional Court, axing the state’s “Certificate of Need”, has nothing to do with the NHI.<\/p>\n","protected":false},"author":10,"featured_media":860726,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[23],"tags":[24905,12033],"class_list":["post-860713","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-government","tag-health-department","tag-nhi"],"_links":{"self":[{"href":"https:\/\/businesstech.co.za\/news\/wp-json\/wp\/v2\/posts\/860713","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/businesstech.co.za\/news\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/businesstech.co.za\/news\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/businesstech.co.za\/news\/wp-json\/wp\/v2\/users\/10"}],"replies":[{"embeddable":true,"href":"https:\/\/businesstech.co.za\/news\/wp-json\/wp\/v2\/comments?post=860713"}],"version-history":[{"count":1,"href":"https:\/\/businesstech.co.za\/news\/wp-json\/wp\/v2\/posts\/860713\/revisions"}],"predecessor-version":[{"id":860727,"href":"https:\/\/businesstech.co.za\/news\/wp-json\/wp\/v2\/posts\/860713\/revisions\/860727"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/businesstech.co.za\/news\/wp-json\/wp\/v2\/media\/860726"}],"wp:attachment":[{"href":"https:\/\/businesstech.co.za\/news\/wp-json\/wp\/v2\/media?parent=860713"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/businesstech.co.za\/news\/wp-json\/wp\/v2\/categories?post=860713"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/businesstech.co.za\/news\/wp-json\/wp\/v2\/tags?post=860713"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}
<\/a><\/figure>\n\n\n\nAccording to Solidarity, the Certificate of Need represented a key tool for the state to centralise power over the healthcare sector by controlling where healthcare workers could work.<\/p>\n\n\n\n
It argued that centralisation was a core theme of the NHI, and that the certificate was key to achieving it.<\/p>\n\n\n\n
However, while noting the judgment, the Health Department said that the ruling had nothing to do with the NHI Act.<\/p>\n\n\n\n
“The sections in question were passed by Parliament 23 years ago and have never been brought into effect,” it said.<\/p>\n\n\n\n
“Thus, there is no direct impact of the judgement on the NHI…No section of the NHI has been declared unconstitutional.”<\/p>\n\n\n\n
The Department said it would continue with all necessary preparations to strengthen the health system for the NHI.<\/p>\n\n\n\n
However, this is in the wider context of the NHI case currently before the Constitutional Court, which has put a stay on further implementation of the scheme until the matter is settled.<\/p>\n\n\n\n
Hearings were held earlier in May surrounding the public participation process before the Act was signed into law in 2024.<\/p>\n\n\n\n
Because the outcome of the case has the potential to send the NHI laws back to the department and Parliament for processing, litigation on other aspects of the scheme has been put on hold.<\/p>\n\n\n\n
In turn, the state has agreed to stay the promulgation of the scheme.<\/p>\n\n\n\n
If the Constitutional Court rules in favour of the challengers, who claim the public participation was flawed, the NHI faces years of redrafting and processing.<\/p>\n\n\n\n
However, even if the court rules in favour of the state, the other cases will continue.<\/p>\n\n\n\n
Among these cases are issues very similar to those found in the latest Certificate of Need case\u2014specifically, arguments that the NHI Act gives the Minister and the Department inordinate power to completely restructure healthcare in the country.<\/p>\n\n\n\n
There are also similar arguments around violations of constitutional rights, such as deprivation of business, removal of freedom of choice and limiting access to healthcare.<\/p>\n\n\n\n
Some of the key challenges are coming from the Board of Healthcare Funders, Solidarity, Sakeliga, AfriForum, the Hospital Association of South Africa, the South African Private Practitioners Forum and the Western Cape Provincial Government.<\/p>\n\n\n\n
Aside from the public participation process, various provisions of the Act that are being challenged include:<\/p>\n\n\n\n
- \n
- The rationality of signing the Act into law;<\/li>\n\n\n\n
- Various sections related to private medical aids;<\/li>\n\n\n\n
- Sections related to specialist services;<\/li>\n\n\n\n
- The overall constitutionality of the Act, particularly in relation to arbitrary deprivation of business, removal of freedom of choice, and limiting access to healthcare.<\/li>\n<\/ul>\n\n\n\n
Attempts have been made to bring the various litigating parties and the government together to settle the matters out of court, but both sides have rejected them.<\/p>\n","protected":false},"excerpt":{"rendered":"
The National Department of Health says the latest ruling by the Constitutional Court, axing the state’s “Certificate of Need”, has nothing to do with the NHI.<\/p>\n","protected":false},"author":10,"featured_media":860726,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[23],"tags":[24905,12033],"class_list":["post-860713","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-government","tag-health-department","tag-nhi"],"_links":{"self":[{"href":"https:\/\/businesstech.co.za\/news\/wp-json\/wp\/v2\/posts\/860713","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/businesstech.co.za\/news\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/businesstech.co.za\/news\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/businesstech.co.za\/news\/wp-json\/wp\/v2\/users\/10"}],"replies":[{"embeddable":true,"href":"https:\/\/businesstech.co.za\/news\/wp-json\/wp\/v2\/comments?post=860713"}],"version-history":[{"count":1,"href":"https:\/\/businesstech.co.za\/news\/wp-json\/wp\/v2\/posts\/860713\/revisions"}],"predecessor-version":[{"id":860727,"href":"https:\/\/businesstech.co.za\/news\/wp-json\/wp\/v2\/posts\/860713\/revisions\/860727"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/businesstech.co.za\/news\/wp-json\/wp\/v2\/media\/860726"}],"wp:attachment":[{"href":"https:\/\/businesstech.co.za\/news\/wp-json\/wp\/v2\/media?parent=860713"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/businesstech.co.za\/news\/wp-json\/wp\/v2\/categories?post=860713"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/businesstech.co.za\/news\/wp-json\/wp\/v2\/tags?post=860713"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}