National health policy faces constitutional roadblock
Healthcare brokers and medical scheme members concerned about the impact of the country’s multi-year National Health Insurance (NHI) Act rollout received some positive news this week following an 18 May 2026 Constitutional Court ruling against the Minister of Health and others. The ruling strikes down parts of the National Health Act (NHA) viewed by many as an important enabler for the NHI solution.
Constitutional invalidity
The Constitutional Court confirmed the July 2024 High Court order of “constitutional invalidity” for sections 36 to 40 of the NHA, labelling these sections “inconsistent with the Constitution and invalid in that they are irrational and unjustifiably limit the right to choose a trade, occupation or profession freely.” These rights are enshrined in section 22 of the Constitution of South Africa.
The first and third respondents, being the Minister of Health and the Director-General of the National Health Department, were ordered to pay the applicants’ costs in the action brought by Solidarity and seven others, including the Alliance of South African Independent Practitioners; South African Private Practitioners Forum (SAPPF); and the Hospital Association of South Africa (HASA).
The ruling does not strike down the NHI Act, but it does weaken a regulatory pillar that government could have used to centralise control of healthcare services. Sections 36 to 40 of the NHA gave extensive powers to the Director-General of Health to issue, refuse, withdraw or make subject to conditions a certificate of need (CON). This CON (excuse the pun, dear reader) would help government dictate where doctors and healthcare professionals could practise; where private clinics or hospitals could be located; and how healthcare resources were geographically distributed.
Freedom of trade, occupation and profession
FAnews spoke to Michael Settas, MD of Cinagi and Chair of the Free Market Foundation’s Health Policy Unit, to find out how the court ruling might impact the private healthcare sector. We asked about government’s immediate response, being that the ruling did not affect NHI, that CON was not pivotal to the NHI implementation and that the affected sections of the NHA had not yet been implemented.
These assertions are fair enough. “But the merits of the ruling on the certificate is that sections of the NHA impinged upon the rights of doctors to practice their profession freely,” Settas said. He argued that section 33 of the NHI Act impinged on the same constitutional rights as sections 36 to 40 of the NHA did, adding that he would be surprised if the Constitutional Court came to a different finding if asked to rule on it.
FAnews changed tack, suggesting that the Court’s ruling had little, if any, impact on medical schemes and healthcare brokers. Well yes, for now, but things change significantly if one assumes that section 33 of the NHI fails the constitutionality hurdle. “Assuming the Constitutional Court is consistent, the big implication could be that the NHI Act is set aside, or sections of it are excised, like has happened with the NHA,” Settas said.
If section 33 of the NHI Act goes, then the issue with medical schemes being allowed to offer cover only for non-NHI services falls away, as does the knock-on impact on healthcare brokers and medical scheme members. Until then, civil society and the various healthcare associations involved in challenging NHI are celebrating the first victory in what looks to be a lengthy battle.
A win for healthcare practitioners
Solidarity called the ruling a victory for healthcare practitioners and the broader public. Anton van der Bijl, Deputy Chief Executive of the trade union said the ruling shook the foundations on which the government’s “distorted and destructive” healthcare plans were based. “One of the NHI’s central pillars has collapsed today,” he said, calling the certificate of need an instrument of centralisation and state control. He contended that as written, the NHA allowed government “to move health practitioners around like pawns on a chessboard…”
Your writer scanned the ruling for the key arguments for and against. The Minister of Health and his Director-General positioned the CON as part of the state’s wider NHI project. They argued that the country’s health system was split along income, location and race ‘lines’ with too much capacity in wealthy areas and too little elsewhere. In this context, they said the certificate served a valid public purpose of broadening access to healthcare. They also contended that the CON requirement was not, in itself, a licensing regime.
The applicants held that the policy intention could not save a defective mechanism. They said the CON gave the Director General too much power without adequate safeguards for affected providers, and that it limited individual freedoms to choose an occupation or profession. More critically, sections 36 to 40 eroded healthcare providers’ rights and interests. In its ruling, the Constitutional Court contended that it was not convinced that refusing or withholding certificates would cause private health resources to relocate.
Irrational and unjustifiable
The Court also said that the scheme was open-ended and poorly connected to its stated purpose, using words like irrational and unjustifiable to shoot it down. In this context, many healthcare and political commentators are celebrating this ruling as a legal win against aspects of state-controlled healthcare planning, and a sign that courts may scrutinise other NHI-related provisions similarly in future litigation. That is good news for the applicants in two other NHI-related matters currently before the Constitutional Court.
In the first, CCT251/25, the Board of Healthcare Funders (BHF) is challenging the National Assembly and others on the basis that the public could not comment meaningfully on the proposed legislation absent core details, including what the scheme would cost to implement. In the second matter, CCT269/25, the Premier of the Western Cape Government is taking on the Chairperson of the National Council of Provinces (NCOP) and others, alleging that the NCOP process failed to consider public input properly before approving the Bill.
The Court’s website notes its rulings in these cases as forthcoming, but Settas warns that legal challenges against NHI could drag on for years. “Even if the BHF and Western Cape Government decisions go in favour of government, there are seven or eight other cases lining up to challenge the substance of the NHI,” he said. These cases would have to make their way through the High Court and Supreme Court of Appeal, and might only make it to the country’s top court if the High Court deems it a constitutional matter.
As an interesting aside, the Solidarity challenge started in the High Court in December 2021. It took until July 2024 for the High Court to issue its ruling, and then almost two years for the Constitutional Court to weigh in.
Building a bridge to nowhere?
Van der Bijl summarised the ruling as a major breakthrough for professionals in the healthcare sector. “No government can force doctors, dentists, nurses and other healthcare practitioners through regulations to create quality healthcare where the government itself has failed,” he said. He concluded that the ruling would have significance in the fight against the NHI, which has state centralisation at its core.
FAnews teased that the NHI implementation felt a bit like building a bridge-to-nowhere, and that government seemed hell-bent on pushing ahead on its chosen path regardless of its apparent constitutional missteps. Settas offered a brutal assessment, saying that the policy had no prospect of success economically. “We do not have the money, and there is no way government could raise taxes to the extent the solution requires,” he said. As a parting uplift for medical schemes and healthcare brokers, he rated the odds of NHI coming into place as “quite slim”.
Writer’s thoughts:
South Africa’s NHI implementation has a bridge-to-nowhere feel to it, with government pouring billions into a floorplan that could potentially be redrafted by the country’s courts. What is your biggest business or personal concern with the NHI trajectory? Please comment below, interact with us on X at @fanews_online or email us your thoughts [email protected].
