This article was first published by Business Day on 25 May 2026
The Constitutional Court has indirectly dealt a heavy blow to the National Health Insurance (NHI) Act, by declaring that the ‘certificate of need’ provisions under the National Health Act are unconstitutional.
Promulgated in 2003, the National Health Act contained provisions in section 36 to regulate where private sector doctors and medical service providers were permitted to operate and to what extent – the so called ‘certificate of need’ (CoN). The regulations empowering the offending section 36 of the National Health Act were long delayed, but when finally implemented several years ago, trade union Solidarity and several medical associations took the matter then to the High Court arguing that they were unconstitutional.
The High Court found the CoN to be unconstitutional in July 2024, and the Constitutional Court’s ruling now has ratified that finding, declaring that these odious constraints on doctors violate section 22 of the Constitution; namely the right to choose one’s trade, occupation or profession freely.
The CoN within the National Health Act have until now been a cornerstone of government’s ambitions to implement the NHI, although the state itself has been somewhat contradictory on whether NHI is contingent on the CoN being in place. After the High Court ruling in July 2024, Health Minister Aaron Motsoaledi was quoted as saying “It is purely mischief to assert a connection [between the CoN and NHI] and is part of a deliberate campaign to discredit the NHI”.
By contrast, in the papers filed by the state in this Constitutional Court case, the state argued that ‘the CoN is a central pillar in the implementation of the NHI’.
Nonetheless, besides the debilitating provisions of the CoN outlined above, another provision would have compelled doctors to share their resources with the Department of Health in order to treat public sector patients, should the department’s Director General deem as such necessary. In other words, the state could force the private sector to make up for its own failings.
Given the substantial overreach, fact that apex court has made this ruling is no surprise.
While the CoN provisions were contained within the National Health Act, and not the NHI Act, this ruling has important implications for NHI. For the NHI to operate as its ANC architects envisaged, it required control over doctors. The CoN was designed to dictate where doctors were permitted to operate and what services they could deliver, while section 33 of the NHI Act would compel doctors to contract their services to the state via the yet to be established NHI Fund.
The vast majority of private sector care that is delivered today is funded through medical schemes, so the ability for private sector providers to remain contracted to medical schemes is vital in securing their revenue and hence their survival.
The NHI will prevent doctors from being able to contract with medical schemes, compelling them instead to contract with the monopoly NHI Fund, via the now infamous section 33 of the NHI Act. Though via a slightly different mechanism, section 33 of the NHI Act will also restrict doctors’ rights to choose their trade, occupation or profession freely, as it will compel doctors to become servants of the state.
This is how the ruling on the CoN under the National Health Act has major relevance to the NHI Act; if the Constitutional Court is consistent, it should also find section 33 of the NHI Act unconstitutional.
Furthermore, there is no indication yet as to how much medical service providers will be paid by the NHI Fund, as compared to what medical schemes currently pay them.
The NHI Fund will unilaterally determine what they will pay medical service providers, as per the Health Care Benefits Pricing Committee to be established under section 26 of the NHI Act. Read alongside section 33, which prevents medical schemes from insuring services covered under the NHI, section 26 places the NHI Fund in a position to exclusively determine what doctors and medical service providers will earn. This could also be seen as a limitation of the right to choose one’s trade, occupation or profession freely.
Further consideration could also be given to section 39 of the NHI Act – accreditation of medical service providers. This will allow the NHI Fund to dictate the ‘number and mix’ of healthcare providers accredited to the NHI Fund, which may include both public and private sector providers. There is no obligation on the NHI Fund to accredit all service providers within a region and where only a portion of providers within a particular region are accredited, any unaccredited service providers will still remain subject to the exclusionary provisions of section 33, thus preventing these service providers from delivering their services to medical schemes.
This would leave such unaccredited service providers with no ability to earn an income within their chosen profession!
Finally, when it comes down to budget time, the NHI Fund will do whatever any tax funded public health system does – it starts rationing care – read: throttling supply. And to achieve this it will reduce the number of accredited service providers. The inevitable result will be lengthy waiting times for treatment and sub-standard care.
The deprivation of constitutionally protected rights by the NHI Act is extensive and, given a thorough reading of the Constitutional Court’s ruling on the CoN, it is a difficult stretch to believe that a similar ruling will not be made if or when the NHI Act comes before the apex court.
