- The Constitutional Court has struck down controversial Health Act rules that would have made healthcare providers get certificates of need.
- The court found the scheme made no sense and put unfair limits on the right to freely choose a profession.
- The ruling takes away the government's power to decide where some private healthcare services can open or operate
The Constitutional Court has stopped the government from trying to control where private healthcare providers can operate, ruling that parts of the National Health Act are both unconstitutional and irrational.
All the judges agreed, and on Monday, 18 May 2026, the court declared Sections 36 to 40 of the National Health Act invalid and completely removed them from the law.
Solidarity Trade Union, healthcare organisations and private healthcare practitioners challenged the Minister of Health and the Director General of Health in court. These rules would have forced healthcare providers, hospitals and medical facilities to get a certificate of need before they could set up, expand or even keep running certain health services.
The government said the scheme was needed to make access to healthcare more equal and stop too many private medical services from being concentrated in wealthier areas.
But the Constitutional Court found the law gave the Director General of Health too much power with too few checks and did not protect the rights of healthcare providers.
Justice Catherine Mary Savage wrote, “The challenged rules do not fit with the Constitution and are invalid because they make no sense and unfairly limit the right to choose a trade, occupation or profession freely.”
Court rejects government’s reasons
The government told the court that the certificate scheme would help change the healthcare system and support the bigger goals of National Health Insurance.
The Constitutional Court agreed that South Africa still faces big gaps in access to healthcare, especially between public and private services. But the court found the government did not show how the certificate scheme would really achieve those goals.
Justice Savage said the law let the Minister of Health decide later, using regulations, which healthcare services and technologies would need certificates. The court found this made things unclear and gave the government too much freedom to decide.
The judgment read in part, “The challenged rules do not set up a clear or complete plan that lets anyone see if it truly reflects a solid and defensible idea of the public good.”
The court also found the law did not require the Director General to consider the rights and interests of healthcare providers when deciding whether to grant or refuse certificates.
Healthcare providers warn of serious consequences
The applicants argued that the scheme would hurt private healthcare practices and could end up making it harder for people to get quality care instead of improving it. They warned that healthcare professionals could end up being forced to work in areas or specialities they did not choose just to keep practising legally.
The Constitutional Court agreed that the law put serious limits on the constitutional right to freely choose a profession. Justice Savage wrote, “Freedom to choose a career is at the heart of a society built on human dignity as the Constitution expects.”
The court also noted that the certificate rules were never put into action because the regulations needed to make them work were never finished. Since these rules never took effect, the court found that removing them would not affect the rest of the National Health Act.
The government must pay the applicants’ legal costs, including the costs for two lawyers.
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