The Constitutional Court has torpedoed the health minister’s plans to control where doctors work, confirming a high court ruling that the “certificate of need” provisions in the National Health Act are irrational, unconstitutional and invalid. The collapse of the legislation for the certificate of need is a politically sensitive issue that was welcomed by critics of National Health Insurance (NHI) and downplayed by the department of health. Despite describing it as a “central pillar” in the implementation of the NHI Act in court proceedings, the department said Monday’s judgment related solely to provisions in the act that had never been brought into force.“There is no direct impact of the judgment on the NHI as some within the political and private health sector have rushed to mislead the public on,” it said in a statement.Sections 36 to 40 of the National Health Act, which give the department the power to determine where healthcare professionals can practise and where private hospitals can install new wards and equipment, were challenged by trade union Solidarity and six other parties, including organisations representing doctors and private hospitals. “One of 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,” said Solidarity deputy CEO Anton van der Bijl. “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,” he said. In a unanimous judgment, the apex court upheld a 2024 Pretoria high court finding that sections 36 to 40 of the National Health Act are irrational. While the department of health’s ambition to progressively widen access to healthcare with a more equitable geographic distribution of services is legitimate, the act’s certificate of need provisions are not a rational means to achieve it, it said. In the absence of regulations defining the scope of the scheme, it was unclear which health establishments, professionals, equipment or services would be affected by the certificate of need, effectively giving the minister of health unfettered power, wrote judge Kate Savage.“Recklessly pursued, without appropriate regard to the impact of such regulation, the potential clearly exists to effect lasting damage to the provision of all health services across South Africa,” she said.The court also found the certificate of need provisions unjustifiably limit the right to choose a trade, occupation or profession. The rights and interests of healthcare professionals and health establishments are not included in the factors set out in section 36 that are to be weighed up by the department in determining whether to grant or refuse a certificate of need, said the judgment. The South African Private Practitioners Forum, representing doctors, welcomed the judgment. “We are ecstatic,” said SAPPF CEO Simon Strachan. The judgment is important because many of the constitutional arguments about the rights of doctors are similar to those set out in challenges to the NHI Act, he said. The Hospital Association of South Africa, representing private hospitals, said it welcomed the legal clarity brought to a long-standing issue. The National Health Act was signed into law in 2004, and the certificate of need provisions were first challenged more than a decade ago by the South African Dental Association (SADA). In a matter that went all the way to the Constitutional Court, SADA attacked the certificate of need on procedural grounds, successfully arguing that a proclamation bringing sections 36 to 40 into force had been invalid because no enabling regulations were in place at the time.The DA’s health spokesperson, Michele Clark, said the ruling has important implications for the implementation of the NHI Act. “While the NHI Act does not explicitly mention certificates of need, the court case provides a fundamental precedent that goes against one of the key pillars of NHI, which is the centralisation of healthcare control and the restriction of practitioners’ ability to operate freely,” she said.ActionSA MP Kgosi Letlape said the ruling is a significant victory against state overreach. “[It] sets an important constitutional precedent as further legal challenges against the NHI Act continue. “This judgment reaffirms that quality healthcare cannot be achieved through coercion, bureaucracy and centralised state control. South Africa’s healthcare crisis is the result of government failure, poor infrastructure management and corruption, not a lack of willingness by healthcare professionals to serve communities.”