Solidariteit has scored a major victory against the incoming NHI legislation by taking out one of the key existing powers that would enable the national government to control access to private healthcare.

Judge A. Millar ruled that sections 36 to 40 of the National Health Act were to be severed from the Act. These sections concern “certificates of need”, which tightly regulate the ability of health establishments to expand or alter their infrastructure.

The National Health Act (NHA) mandates that no person may operate or expand a health establishment without a Certificate of Need (CoN). Health establishments are broadly defined, including hospitals, clinics, and pharmacies, making CoN requirements universally applicable. To obtain a CoN, criteria such as government planning, equitable distribution of services, and financial sustainability must be considered. Non-compliance could result in fines or imprisonment.

The CoN system centralizes control over the healthcare industry, allowing the Minister and Director-General of Health to redistribute facilities and personnel. In 2022, the High Court in Gauteng ruled that the CoN provisions are unconstitutional as they violate several rights, including dignity, freedom of movement, and access to healthcare.

The court criticized the CoN for potentially forcing practitioners to work in undesired locations and for not considering the rights of existing healthcare users. The judgement highlighted the imprecise nature of the mandatory considerations for issuing a CoN, leading to uncertainty in its application.

The Constitutional Court has now confirmed the High Court ruling, liberating the healthcare sector from a key mechanism of central control that has thus far hindered the expansion of healthcare delivery in the private sector.

This forms part of a broader strategy to use the courts to neuter the incoming National Health Insurance Act, which has been widely criticised for its draconian and wasteful character.

One of the key elements of the new NHI has been the ability to control how people can access healthcare, as the Act intends to outlaw healthcare options already covered under the prescribed system.

Solidarity has initiated the process to challenge the NHI in court and outlined a constitutional framework during the summit to approach the Constitutional Court to declare the legislation unconstitutional and have it overturned.

"NGV simply won't work, and we have two choices: wait for the health system to collapse or ensure that NHI is never implemented in the first place. We foresee this as the biggest court case since 1994, and we have a strong case and will win," said Dr. Dirk Hermann, Chief Executive of Solidarity.

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