Summary for Expert Witnesses: Although this matter is not directly relevant to the practice of expert witnesses, it has been reported in the media and is of general interest to practitioners.

Certain provisions of the National Health Act created a scheme in which a certificate of need must be obtained to establish, construct, modify, acquire or continue to operate a health establishment or health agency; to acquire prescribed health technology at a health establishment or health agency; or to provide prescribed health services.

The Constitutional Court held that there was no rational connection between the scheme and its purpose, and that the scheme failed to account for the constitutional rights of owners of private health establishments, service providers and workers. The scheme was also found to be procedurally irrational, as it vested far-reaching powers in the hands of the Director-General and the Minister without adequate statutory safeguards.

The Court also found it prudent to address the question of an unjustifiable limitatio on the right to trade. It held that robust protection of the right to trade enhances South Africa’s capacity to fulfil other rights, including the right to health care. In this case, the impugned provisions failed to balance the important rights and interests at stake, and constituted an unjustifiable limitation of the right to trade.

Accordingly, the scheme was held to be unconstitutional.

Summary for Mediators: The comments in Summary for Expert Witnesses above are relevant to mediators.

Case Note:

Introduction

In this matter, the Constitutional declared sections 36 to 40 (the impugned provisions) of the National Health Act 61 of 2003 (the Act) unconstitutional.

The Facts

The impugned provisions created a scheme in which a certificate of need must be obtained to establish, construct, modify, acquire or continue to operate a health establishment or health agency; to acquire prescribed health technology at a health establishment or health agency; or to provide prescribed health services. The Director-General was required to consider 13 factors in deciding whether to grant a certificate of need, such as the equitable distribution of health care resources, and was authorised to withdraw a certificate of need. The impugned provisions empowered the Minister to make regulations relating to the requirements for issuing or renewing a certificate of need. Further, the performance of any act covered by the scheme without a certificate of need would have constituted an offence carrying a penalty of a fine or up to five years’ imprisonment.

In 2024, the High Court held that there was no rational connection between the scheme and its purpose, and that the scheme failed to account for the constitutional rights of owners of private health establishments, service providers and workers. The scheme was also found to be procedurally irrational, as it vested far-reaching powers in the hands of the Director-General and the Minister without adequate statutory safeguards and violated numerous constitutional rights, including movement, trade and property. Accordingly, the scheme was held to be unconstitutional.

In the Constitutional Court, it was contended that there was no rational connection between the intended purpose and the scheme, nor had it been shown that the scheme will contribute to the progressive realisation of the right to health care. The scheme was said to be procedurally irrational in that it vested broad discretionary powers to grant or renew certificates of need with no adequate safeguards and without needing to consider the rights or interests of those most directly affected. It was also contended that the scheme infringed the rights to dignity, equality, trade and property, and that these infringements could not satisfy a section 36 limitations analysis.

The respondents argued that the scheme was necessary for the transformation of the health care system and to address spatial apartheid and systemic disparities. In their counter-application, they sought that the declaration of invalidity be refused as the impugned provisions were not operational, and necessary regulations and statutory infrastructure had yet to be finalised. They said the challenge was a speculative and abstract one that should not be considered by the Constitutional Court. On the merits, the respondents posited that the scheme did not result in procedural unfairness and merely regulated the provision of health services without violating any fundamental rights or falling foul of a section 36 analysis.

The Issues

The primary issues before the Constitutional Court were therefore whether the applicants’ challenge was abstract and ought not to have been determined by the Court at that time, and whether the Court should have confirmed the High Court’s declaration of constitutional invalidity.

In a unanimous judgment the Court confirmed the declaration of constitutional invalidity.

Jurisdiction

The Court held that is it was mandated by section 167(5) of the Constitution to confirm any order of constitutional invalidity, the Court had the requisite jurisdiction to determine the application. On the abstract nature of the matter, although the scheme was not yet operative and there were no regulations, this did not prevent the Court from determining the challenge. A genuine dispute existed between the parties that was not premature or hypothetical in nature. The challenge raised concerns as to the inherent constitutional invalidity of the provisions as they appeared facially. Any relief granted would have a direct effect and would settle the issues as they arose for both parties. Therefore, the high threshold required to bring an abstract challenge was met.

Legitimate purpose

Having reached this conclusion, the rationality challenge fell to be determined. Legislation is constitutionally required to be rationally related to a legitimate government purpose. This is a requirement of the principle of legality, arising from the rule of law. It is not however for a court to determine whether a legislative or policy choice is the best or most effective, or to substitute its own view for that of the legislature or executive. The expressed purpose of the impugned provisions to broaden access to health care through an equitable geographic distribution of such services was patently legitimate. It was consistent with the state’s duty to progressively realise the right of access to health services, and recognised the barriers in advancing that right in the face of persistent service delivery challenges and the inequitable geographic distribution of such services.

Rational connection

The Court then examined the question of whether a rational connection existed between this legitimate purpose and the means adopted to achieve it. In the absence of regulations defining the scope of the scheme, it was left unclear which health establishments, agencies, technologies or services would be affected by it. The Minister was effectively left with the sole discretion to determine the intended scope of the scheme, a power which was unconstrained and risked being in contrast with what the legislature intended. These considerations must be assessed against the principle that it is impermissible to use regulations to interpret legislation. The impugned provisions did not establish a comprehensible scheme against which a rational connection existed between the purpose and the means adopted to achieve it. In addition, health care providers would have been left uncertain as to what the law required of them. Nor did the issuance of a certificate of need require the rights and interests of health establishments, agencies or providers to be taken into account. For these reasons, the impugned provisions were irrational.

Limitation of the right to trade

The Court found it prudent to also address the unjustifiable limitation of the right to trade. A person’s choice of trade, occupation or profession depends on considerations of location, nature, specialty, profitability and financial sustainability. Under the impugned provisions, the Director-General’s decision prevailed over that person’s choice on these fundamental considerations. Some health service providers would have consequently faced the burden of either practising in a place or speciality contrary to their choosing, or risking criminal sanction. The court held that this limitation was not justifiable. Robust protection of the right to trade enhances South Africa’s capacity to fulfil other rights, including the right to health care. In this case, the impugned provisions failed to balance the important rights and interests at stake.

Conclusion

For these reasons, the impugned provisions were declared unconstitutional, as they were irrational and unjustifiably limited the right to trade. The impugned provisions were unrelated to the rest of the Act and it was just and equitable that they be severed in their entirety. The High Court’s declaration that the impugned provisions were invalid was confirmed and the cross-appeal was dismissed. In light of the Biowatch principle, the respondents were ordered to pay the applicants’ costs, including those of two counsel.

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Published on 22 May 2026

Found in:

The South African Medico-Legal Reports

Solidarity Trade Union and Others v Minister of Health and Others