ConCourt rules health providers can operate without government permission

The Constitutional Court (ConCourt) has declared sections of the National Health Act, which required private hospitals, clinics and healthcare providers to obtain government sanction before setting up shop, unconstitutional.

The apex court ruled that the sections unjustifiably limited the right to choose a trade, occupation or profession.

The ruling on Monday (18 May) affirmed a previous ruling by Pretoria High Court Judge Anthony Millar, who, in his judgment in 2024, described the laws as a “blunt instrument” which allowed the director-general of the Department of Health to control private healthcare in the country.

The legal challenge against Sections 36-40 of the Act, which required existing and new private health establishments to apply and be granted a certificate of need (CON), was brought by Solidarity Trade Union, organisations representing the private health care industry, and private doctors.

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In considering CON applications, the director-general would take into account issues such as the need to promote equitable distribution and correct inequalities. The certificate would be valid for 20 years. Operating without one would be a criminal offence.

Writing for the unanimous court, Justice Kate Savage said the applicants had argued that there was no evidence to show that the CON scheme would achieve its intended purpose of expanding geographical access to health services.

The applicants argued that it was “vague and risky” and had the potential of restricting access, while at the same time infringing on several constitutional rights.

The government respondents filed a counter-application to set aside Millar’s earlier ruling.

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They argued that the scheme was the central pillar of the National Health Insurance Act, which seeks to promote access to quality health services.

It was in the public interest, they argued, that there was a fair and equitable distribution of health services across the country and that it was necessary for transformation.

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But Savage said the applicants had not disputed the patent inequalities in access to healthcare. Their challenge was concerned with whether the scheme met the threshold of rationality and whether it unjustifiably limited rights.

She said the purpose of the scheme was laudable and “patently legitimate”, but it was not clear that the imposition of a CON was rationally connected to that purpose.

Savage noted the absence of regulations, which left the health minister with sole discretion and unconstrained power to determine who the scheme would apply to.

She said the minister had also given no reasons why existing licensing and regulatory mechanisms could not be used to achieve the same purpose.

“The scheme has not been shown to be rationally related to a legitimate government purpose,” Savage said.

Furthermore, once operational, the scheme would prohibit people from entering or remaining in their chosen profession if they were not granted a CON.

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“It strikes at the heart of the choice to provide or continue providing health services.”

“A person’s choice of trade, occupation or profession depends significantly on considerations of location, speciality, profitability and financial sustainability.”

“Yet, under the impugned provisions, the DG’s decision prevails over, and thus limits the person’s choice.”

“They are unduly restrictive and not tailored towards balancing the different rights and interests at stake,” the judge said.

She said there was no point remitting the matter to Parliament because the scheme was not in operation and there would be no administrative disruption.

The Minister of Health and the President were ordered to pay the costs of the application.

© 2026 GroundUp. This article was first published here.

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