The State cannot treat medical professionals as pawns

SAPPF wins landmark constitutional court battle against certificate of need

The South African Private Practitioners Forum (SAPPF) has welcomed a landmark Constitutional Court judgment delivered on 18 May 2026, declaring the controversial Certificate of Need provisions of Sections 36 - 40 of the National Health Act, unconstitutional and invalid. 

The ruling confirms the High Court’s decision of July 2024 and permanently removes provisions that would have given the Minister of Health authority to determine where doctors and other healthcare professionals may work, where facilities may be established and how private healthcare infrastructure could expand. 

SAPPF was the Third Applicant in the matter. Solidarity was the first applicant to initiate and fund the challenge. Others who participated were the Alliance of South African Independent Practitioners Association (ASAIPA), the Hospital Association of South Africa (HASA) and individual healthcare practitioners. 

Dr Simon Strachan, CEO of SAPPF says the organisation is grateful to Solidarity for taking the lead in the matter and describes the ruling as “a defining constitutional victory.” 

“This judgment is a significant moment for medical professional independence and patient access to healthcare in South Africa. The Constitutional Court has confirmed what we have consistently argued, that healthcare reform cannot come at the expense of constitutional freedoms, practitioner sustainability and patient access to care. While we fully support equitable access to healthcare, coercive state control over private practice was never the answer.” 

“The notion that healthcare access could be improved by restricting where healthcare professionals may work has now been decisively rejected. Professionals are not instruments of state allocation.” 

Dr Strachan says equally important, the Court also found insufficient evidence that the scheme would achieve its stated objective of improving equitable access to healthcare services. 

“The Court recognised what healthcare practitioners have warned for years that excessive bureaucracy, uncertainty and unchecked discretionary power do not improve healthcare delivery.” 

“South Africa already faces a shortage of healthcare professionals. Simply shifting medical professionals around the country through legislative control, particularly into under-resourced areas with inadequate infrastructure and support systems, does not solve the problem of healthcare access.” 

“What is needed is long-term structural reform that focuses on retaining healthcare professionals, properly funding posts, training more practitioners and creating sustainable systems of care delivery. At present, we continue to see frozen and unfunded posts across the public healthcare sector, which undermines both service delivery and the training of future healthcare workers.” 

Dr Strachan says improving healthcare access also requires broader investment beyond the healthcare sector itself. 

“Healthcare providers form only one part of what creates a healthy society. Sustainable healthcare delivery depends on the wider social determinants of health which includes reliable energy supply, infrastructure, sanitation and education. These are the foundations required to build an effective healthcare system.” 

The Certificate of Need framework would have required healthcare practitioners, hospitals, practices and healthcare facilities to obtain state approval to:

Establish or acquire healthcare facilities

• Expand services or infrastructure
• Continue operating practices and establishments
• Provide prescribed healthcare services 

“In effect, the law would have given the Minister of Health significant authority to determine where and how healthcare professionals practise, a system critics described as centralised state control over medical mobility and service delivery,” says Dr Strachan. 

The provisions were proclaimed into operation in 2014 despite regulations not yet being in place, prompting a Constitutional Court challenge in 2015 that halted implementation due to regulatory impossibility. 

SAPPF continued to raise constitutional and practical concerns over the years. In December 2021, the formal High Court challenge was launched. In July 2024, the High Court ruled the provisions unconstitutional in their entirety after which the matter was referred to the Constitutional Court for confirmation. 

The Constitutional Court’s ruling unanimously confirmed that Sections 36 - 40 of the National Health Act are invalid and must be severed from the legislation. 

The Court found that the Certificate of Need provisions:

• Were irrational
• Unjustifiably limited the constitutional right to freely choose a trade, occupation or profession
• Granted overly broad discretionary powers to the state
• Failed constitutional scrutiny 

Throughout the legal process, SAPPF opposed the Certificate of Need framework on the basis that it would:

• Create excessive state control over where practitioners may operate
• Grant broad discretionary powers to the Director-General and Minister
• Undermine practitioner independence and sustainability
• Enable arbitrary refusal or withdrawal of certificates
• Threaten property rights and professional freedom
• Reduce patient access to healthcare services
• Increase bureaucracy and uncertainty in private practice 

The Constitutional Court ordered that the Minister of Health and the Director-General of the National Department of Health are liable for the applicants’ legal costs in the Constitutional Court, including costs of two counsel. 

“This cost order reflects the significance of the matter and the Court’s confirmation of our successful constitutional challenge,” says Dr Strachan.  

Dr Strachan emphasises that the ruling should now shift focus toward constructive, evidence-based healthcare reform that addresses South Africa’s inequalities without undermining constitutional rights or destabilising private healthcare delivery. 

“SAPPF remains committed to engaging in sustainable healthcare reform that improves access while protecting both patients and healthcare professionals. South Africa needs healthcare solutions that are practical, collaborative and constitutionally sound, not systems that restrict access through excessive state control.”