The Constitutional Court has struck down provisions in the National Health Act that underpinned parts of the proposed National Health Insurance scheme, ruling them unconstitutional.
Justice Kate Savage, in a unanimous judgment just 18 days into her tenure, confirmed the invalidity of sections 36 to 40 of the National Health Act 61 of 2003. These sections required a certificate of need from the Department of Health’s director-general to establish health facilities or provide certain services, with criminal penalties for non-compliance.
The court found that the provisions unjustifiably limited section 22 of the Constitution, which protects the right to freely choose one’s trade, occupation or profession. The ruling came in a case brought by trade union Solidarity, private healthcare practitioners and the hospital association.
A separate challenge by the Board of Healthcare Funders remains before the court, focusing on the NHI Act’s funding model and service details. The judgment removes a key mechanism intended to redistribute private health services under the NHI framework.
