The Constitutional Court of South Africa is currently deliberating a significant challenge to the National Health Act (NHA) put forth by the Solidarity Trade Union and other stakeholders. At the heart of the debate lies the contentious provisions regarding the “certificate of need”, a regulatory requirement that mandates health service providers to obtain state approval to operate. Sections 36 to 40 of the NHA, which govern this process, are facing scrutiny over allegations of irrationality and arbitrary enforcement, potentially infringing on constitutional rights.
The Solidarity Trade Union seeks a confirmation of a declaration of invalidity against these provisions, which the North Gauteng High Court previously ruled breached several constitutional rights. This ruling resulted in the sections being deemed invalid, thus ripping apart their enforcement from the Act. The plaintiffs, represented by advocate Margaretha Engelbrecht SC, argue that the existing laws grant excessive discretionary power to the Health Minister without any meaningful constraints.
Engelbrecht asserted in court, “Nothing in the Health Act constrains the minister in deciding what health services might or might not be subject to a certificate of need.” This statement resonates with concerns surrounding the potential for capricious decision-making regarding which health services would be subjected to the regulatory framework, suggesting that the powers granted to the Minister under the Act are excessive and unregulated.
The crux of the union’s argument hinges on the premise that Section 90 of the NHA—which supposedly limits the Minister’s authority when making regulations—fails to address the actual power to determine the applicability of health services to the certificate of need process. Engelbrecht noted that the ruling provided by the high court underlined the irrational nature of the provisions that could unduly restrict access to health services across South Africa.
In response to the High Court’s findings, the government has contended the necessity of the certificate of need as a mechanism to ensure public health standards and the equitable distribution of health resources. However, the solid groundwork laid out by the trade union suggests that enabling the minister with such sweeping law-making powers without accountability could lead to inconsistencies and inequalities in healthcare provision at a national level.
The spotlight is now on the Constitutional Court as it weighs the arguments from both sides, which could reshape the landscape of healthcare regulation in the country.
