After two decades of courtroom battles, the Constitutional Court has finally struck down the long‑standing “certificate of need” scheme – a provision that would have allowed the state to dictate where doctors and nurses could practise. The decision marks a decisive end to a chapter of health‑sector litigation that many feared could stall the rollout of South Africa’s National Health Insurance (NHI) programme.
The Department of Health’s legal team had argued that the certificate of need was “a central pillar in the implementation of the National Health Insurance Act”, insisting that the judgment did not touch the NHI itself. Spokesperson Foster Mohale stressed that no part of the NHI Act has been declared unconstitutional, and that the now‑defunct sections were never brought into operation after being passed by Parliament 23 years ago. “The ruling has no direct impact on the NHI,” he told reporters, warning that political commentators were “misleading the public”.
In its submissions, the government maintained that the scheme was meant to ensure a “fair and equitable geographic distribution of health services”, targeting disadvantaged communities and preventing an over‑concentration of facilities in affluent areas. Justice Kate Savage, however, dismissed that rationale, writing that South Africa remains “one of the most unequal countries in the world” and that the alleged link between the certificate of need and genuine access to care was “illusory”.
What the certificate of need meant for the NHI rollout
The court’s decision removes a legal hurdle that many private‑sector groups claimed would have given the state unprecedented control over health‑service locations. Below is a snapshot of the key arguments from the main parties involved in the case.
| Party | Position on the certificate of need | Impact on NHI as claimed |
|---|---|---|
| Department of Health | Essential tool for equitable service distribution | No effect on NHI; scheme never operational |
| Solidarity (trade union) | Instrument of state centralisation and control | Ruling undermines a “central pillar” of the NHI |
| Alliance of South African Independent Practitioners | Barrier to free practice and market competition | Removal clears path for private sector involvement |
| South African Private Practitioners Forum | Unconstitutional restriction on professional freedom | Supports broader NHI access through private care |
| Hospital Association of South Africa | Needed to curb “over‑concentration” of services in wealthy areas | Questioned relevance to NHI implementation |
The table illustrates how the same provision was framed simultaneously as a means of equity and as a vehicle for state overreach. The court’s verdict aligns with the view that the certificate of need lacked a rational connection to its stated purpose, rendering it unconstitutional.
Justice Savage highlighted that the first judgment on the matter, delivered 21 years ago, already set aside the certificate of need provisions. Yet Parliament persisted in keeping the clauses on the books until today’s decisive ruling. “Despite the Constitution’s commitment to social justice, health‑service provision remains starkly inequitable, varying by geography and between public and private sectors,” she warned.
The legal challenge was mounted by a coalition of trade unions, private‑practice bodies and a handful of doctors, who sought confirmation of an earlier ruling by Judge Anthony Millar in 2024. Their argument centred on the claim that the state could not lawfully force health professionals to relocate under the guise of a national plan.
Health Minister Dr Aaron Motsoaledi dismissed claims that the decision was a blow to the NHI, branding them as “propaganda”. He reiterated that the certificate of need was never a cornerstone of the NHI Act and that the Department would continue “all necessary health system‑strengthening preparations for the NHI as the mechanism for South Africa to realise universal healthcare coverage”.
The Constitutional Court made clear that there was “no purpose” in referring the contested sections back to Parliament for amendment; they had to be severed entirely. As the highest court in the land, its decision is final and cannot be appealed.
For many in the private health sector, the judgment is a victory that restores professional autonomy and opens the door for a more collaborative approach to universal health coverage. Solidarity’s deputy chief executive, Anton van der Bijl, hailed the outcome as the collapse of “one of the NHI’s central pillars”, calling the scheme an “instrument of centralisation and state control”. He warned that the government had tried to treat health practitioners “like pawns on a chessboard”.
The broader implication is a reaffirmation that state control over health‑service location must be justified by clear, constitutional objectives. Without a demonstrable link to improving access, any regulatory mechanism risks being struck down as arbitrary.
South Africa’s journey toward universal health coverage remains fraught with challenges, but the removal of the certificate of need removes a legal barrier that had hung over policy discussions for years. The focus now shifts to how the Department of Health will implement the NHI without resorting to intrusive placement mandates, and whether genuine geographic equity can be achieved through incentives, infrastructure investment and partnership with the private sector.
The court’s verdict underscores a fundamental principle: access to health services cannot be achieved through blanket state control, but must be pursued with targeted, constitutionally sound measures. As the nation moves forward, the onus is on policymakers to translate that principle into tangible improvements for communities still waiting for reliable, affordable care.