“Why is it that in this country you cannot just erect a filling station anywhere or erect a huge mall anywhere, but a healthcare facility is not supposed to be regulated similarly? Where are property rights in these other instances?” Dr Aaron Motsoaledi asked early on Friday as he bemoaned a ruling by the Gauteng Division of the High Court in Pretoria declaring parts of the National Health Act unconstitutional.
The order, given by Judge Anthony Millar ,declared five sections of the National Health Act to be unconstitutional.
It took a day or two for Motsoaledi to comment, but when he did he came out swinging in a statement issued in the early hours of Friday.
He equated litigation about health rights to a war between the rich and the poor and said it was similar to litigation about the expropriation of land without compensation.
“We have been inundated with calls and enquiries from concerned people who were made to believe that indeed NHI has been declared unconstitutional by a court of law.
“They have even started celebrating their perceived demise of NHI,” said Motsoaledi.
He said the “propaganda” describing it as a blow to National Health Insurance had been “hugely successful and is in the same mould as the Bell Pottinger propaganda machine of State Capture days”.
Motsoaledi did not give any indication of their plans to appeal against the ruling by Millar, saying they were still considering their options.
The National Health Act came into operation about 20 years ago and regulates how health services are supplied, but the certificate of need provisions that allow the government to determine where doctors can work has not been brought into operation yet. But these have now been declared unconstitutional. The National Health Insurance Act was passed in 2023 and signed into law by President Cyril Ramaphosa in May 2024 just before the election.
This law regulations access to health services as part of global efforts to provide universal healthcare. Advocates for health professionals argue that there is a strong link between the two laws, and that the one was an early setup of an important condition for the NHI. Motsoaledi denies this.
‘A major blow to total NHI idea’
The first applicant in the court case, Solidarity’s chief executive Dr Dirk Hermann, said on Wednesday: “This judgment is a major blow to the total NHI (National Health Insurance) idea, as the principle of central management is a core pillar of the NHI Act itself. A more extensive consequence of this ruling with regard to the certificate of need is that parts of the NHI Act are now probably also illegal in principle.
“The NHI in its current format cannot be implemented as the essence of the NHI is central planning — and this has now been found unconstitutional.”
While this case targeted relevant sections of the National Health Act, he said Solidarity would also fight the National Health Insurance Act in court, and specifically provisions that allowed for the centralisation of funds for healthcare.
In his judgment, Judge Millar said the main purpose of the certificate of need scheme was to regulate the geographical distribution of health establishments and health professionals in South Africa and their compliance with norms and standards.
However, he said, it was “readily apparent that there is no rational connection between the certificate of need scheme and the purpose for which it was enacted. It is misguided to hold the view that the scheme, in implementation, by the withholding of certificates or refusal to renew certificates will have the consequence of a redistribution or the establishment of new facilities.
“Objectively, the scheme is not rational. There is no nexus between the scheme and its implementation and the purpose for which it was enacted.”
Read more: Everything you ever wanted to know about the NHI but were afraid to ask
Motsoaledi said the certificate of need legislation served a “legitimate government purpose” and had two objectives: to regulate the quality and standard of healthcare being provided in a particular facility; and to determine whether an intention to put up a facility, extend the facility, increase the number of beds or put some particular equipment is appropriate for that area,” he said.
Read more: Why the ConCourt is not the appropriate body to address challenges to the NHI Act
Motsoaledi added that many other countries also required a certificate of need from health professionals.
“For the benefit of those who are being misled, we wish to provide a list of some countries with similar laws. All of them are driven by a common objective which is to regulate or license the establishment of health facilities, equipment and services: Australia, Canada, India, Kenya, Malaysia and New Zealand,” the minister said. Certificates of need are also used in Nigeria, the Philippines, Singapore, Sri Lanka, Tanzania, Uganda and the UK and in 35 of the states in the US.
“It is important to note that this list is not exhaustive. Additionally, it should be noted that some of these laws are continually updated. As a constitutional democracy, we fully respect the mandate of the Court to arbitrate on any issue that is a subject of contestation by different sections of society. However as far as this present judgment is concerned, we respectfully wish to differ with the honourable court. We note that while we execute our mandate of provision of healthcare as a human right, the court seems to have placed economic property rights at the expense of the right to health,” he added.
“It is very unfortunate that while we live within the borders of the same country we seem to be existing in two different worlds – one world where it is believed that the right to health must reign supreme, and the other world of economic property rights for the privileged few, where the welfare of human beings counts for nothing. We are even struggling to understand how a right to health by all people in our country interferes with other people’s rights to own property,” he added.
“Nevertheless, we will still consider all our options including an appeal.”
Standard centralised licensing regime
He said it was one of the recommendations of the Health Market Inquiry (into private healthcare in South Africa) that a standardised centralised licensing regime should be implemented.
“The report further added that critical elements of an improved licensing framework include, inter alia, assessment and protection of market need per speciality, a means of delivery (in-patient, out-patient and day care) and assessment of clinical impact,” he said.
He said there were similar sections to those being declared unconstitutional in the Pharmacy Act, but these had never been challenged “or worried about”.
“Where are these property rights when it comes to the location of pharmacies? It is well known that one cannot just place a pharmacy anywhere in the country, because there are rules that regulate that. Currently, after obtaining a practice number, a doctor can practise anywhere (whether in their office, bedroom or boot of a car, or even hire premises next door to a tavern). Nobody can do anything about it,” he said.
He said that even the Health Professions Council of South Africa, a statutory body that registers doctors, could not provide a comprehensive list of where healthcare workers were practising if they were not in public healthcare facilities.
“Likewise, the Board of Healthcare Funders, a body that provides private health practitioners with a practice number empowering them to claim money from medical aids, cannot with certainty state where practitioners are practising or what type of facility they are practising in.”
He insisted that the certificate of need provisions had nothing to do with the NHI.
“It is purely mischief to assert a connection and is a part of the deliberate campaign to discredit the NHI. There is even a claim that the certificate of need is a cornerstone or a central pillar of NHI, presumably without which NHI can’t fly.
“We wish to conclude by stating that this war going on in the courts, media and all public institutions about provision of healthcare is a proxy war between the rich and the poor and not between the rich and the state. That is why the judgment emphasises property rights, exactly the same argument which is presented in courts when the poor black majority want access to land.
“For our part as a department we will at all times take the side of the poor,” he said. DM