On 18 May 2026, the Constitutional Court handed down a unanimous judgment in Solidarity Trade Union and Others v Minister of Health and Others, confirming the order of constitutional invalidity made by the Pretoria High Court. The matter concerned the constitutionality of sections 36 to 40 of the National Health Act 61 of 2003, which established a scheme requiring health establishments, health agencies, and health care providers to obtain a “certificate of need” from the Director-General of the National Department of Health before providing prescribed health services. The scheme had never been brought into operation, and no regulations had been promulgated to give effect to it.
The Primary Issues
The Court was required to determine, first, whether the challenge constituted an impermissible abstract challenge given that the provisions had never been made operative and, secondly, whether the impugned provisions were constitutionally invalid on the grounds of irrationality and the unjustifiable limitation of fundamental rights.
Abstract Challenge
The Minister of Health and the Director-General contended that the matter was speculative and academic, given that the provisions remained inoperative and no regulations had been finalised. The Court rejected this argument. Applying the factors outlined in decided cases, it held that a genuine dispute existed between the parties, that the challenge was neither premature nor hypothetical, and that there was no other reasonable and effective manner in which it could be brought. Declining to hear the matter would risk permitting constitutionally invalid provisions to be brought into operation simply because they had not yet taken effect.
Rationality
The Court accepted that the expressed purpose of the scheme — broadening access to health care through equitable geographic distribution and enforcing norms and standards — was a legitimate government purpose consistent with the state’s obligations under section 27(2) of the Constitution. However, it found no rational connection between this purpose and the means adopted to achieve it. Three deficiencies were identified. First, the scope of the scheme was left entirely to the discretion of the Minister through regulations yet to be promulgated, amounting to an impermissible delegation of legislative power that rendered the scheme inchoate. Secondly, the 13 factors the Director-General was required to consider when determining applications omitted any requirement to take into account the rights and interests of health establishments, agencies, or providers, rendering the decision-making process irrational. Thirdly, no objective evidence demonstrated that the scheme would achieve the enforcement of norms and standards, particularly when existing regulatory mechanisms already served that purpose.
Limitation of the Right to Choose a Trade, Occupation or Profession
Proceeding to address the limitation of the right enshrined in section 22 of the Constitution, the Court found that the scheme did not merely regulate the practice of a profession but struck at the very choice to provide health services. Once operational, it would have prohibited persons from entering or remaining in the profession without a valid certificate and empowered the Director-General to override practitioners’ choices regarding location, nature, specialty, and financial sustainability. The Court held that these limitations were unduly restrictive, were not tailored to balance the competing rights and interests at stake, and were not justifiable under section 36(1) of the Constitution.
The Court’s Ruling
The Court confirmed the High Court’s declaration of invalidity, declared sections 36 to 40 of the National Health Act inconsistent with the Constitution, and ordered that they be severed from the Act. The provisions were found to be structurally interconnected, with sections 37 to 40 being entirely dependent upon section 36. Since the remainder of the Act had operated without these provisions for over two decades, their excision occasioned no administrative disruption. The cross-appeal brought by the Minister of Health and the Director-General was dismissed, and they were ordered to pay the applicants’ costs, including the costs of two counsel.
Implications for the National Health Insurance Act
The Minister of Health and the Director-General expressly described the certificate of need scheme as “a central pillar” in the implementation of the National Health Insurance Act 20 of 2023, which seeks to achieve universal health coverage and eliminate the fragmentation of health care funding in South Africa. The removal of sections 36 to 40 from the National Health Act accordingly deprives the NHI Act of a key regulatory mechanism upon which its implementation strategy was premised. While Parliament remains free to legislate a constitutionally compliant replacement scheme, the judgment makes clear that any such scheme must bear a rational connection to its purpose, must not delegate its scope in an unconstrained manner, and must have due regard to the fundamental rights of health establishments, agencies, and providers. Until such legislation is enacted, the NHI Act’s implementation will proceed without the certificate of need framework, leaving a significant gap in the regulatory architecture contemplated for the reformed health system.
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Read the original publication at Adams & Adams
