On May 18, 2026 (yesterday), South Africa’s Constitutional Court unanimously upheld a 2024 ruling from the Pretoria High Court, declaring Sections 36 to 40 of the National Health Act 61 of 2003 (NHA) unconstitutional and invalid.
QuickNews previously reported on the High Court judgement, which you can read about here. The Certificate of Need (CON) was part of 2003’s NHA, which was never implemented. Despite it not being a part of the 2023 NHI Act, the removal of the Sections was seen as undermining a core pillar of NHI – centralised management.
The case was brought by Solidarity Trade Union, the Hospital Association of South Africa (HASA).
It was argued that the CON unfairly constrained the rights of doctors to practise where they chose, and hospitals and other healthcare facilities would not be able to operate without one, nor for new facilities to open or even expansions to be made. The provisions, which aimed to promote equitable distribution of healthcare services, had not yet been implemented.
The Director-General of Health, who issued the CON, would have had exercised a “blunt instrument” to control private healthcare in the country, noted Judge Anthony Millar of the Pretoria High Court in his judgement.
The sections were found to be irrational and an unjustifiable limitation on the constitutional right (Section 22) to freely choose a trade, occupation, or profession. They granted overly broad discretionary powers without adequate safeguards. Finally, the court ruled that severing (removing) these sections entirely from the NHA was appropriate, with no need to refer them back to Parliament for fixing. The Health Minister and Director-General were ordered to pay costs.
Anton van der Bijl, Deputy Chief Executive of Solidarity, said: “The Certificate of Need was far more than merely an administrative instrument. It was an instrument of centralisation and state control.”
