Issued by Christo van der Rheede on behalf of the FW de Klerk Foundation on 26/07/2024

The FW de Klerk Foundation welcomes the Pretoria High Court ruling, in Solidarity Trade Union and Others v Minister of Health and Others, on aspects of the NHI Act. The High Court’s judgment examined the constitutionality of the Act’s requirement that, e.g. doctors, first obtain a Certificate of Need (“CON”) before they can work at a specific location. The Court found this requirement unconstitutional (in terms of section 36), because it unjustifiably limited constitutional rights and freedoms – including professional freedom (section 22), property rights (sections 25(1) and 25(2)) and access to essential healthcare services (section 27). While the CON scheme aims to regulate the geographical distribution of health establishments, the court found no rational connection between the scheme and its objectives, rendering its limitation of rights unjustifiable. 

Christo van der Rheede, Executive Director of the FW de Klerk Foundation, commented, “The High Court’s ruling on the CON scheme vividly illustrates the dangers associated with central planning mechanisms like the NHI Act. The Court’s determination that the Act’s CON scheme is unconstitutional emphasises the Foundation’s longstanding concerns. The NHI Act, as it stands, falls short and requires substantial revision to align with the Constitution and support effective service delivery, not make it more difficult, to ensure a fair and equitable healthcare system for all South Africans.”

Ismail Joosub, Legal Officer at the Foundation, stated, “The High Court’s finding that the CON scheme violates rights such as professional freedom, property rights and access to essential healthcare services, reflects our concerns about the NHI Act and underscores that central planning mechanisms, like those in the Act, can dangerously erode our hard-won constitutional freedoms.”

The FW de Klerk Foundation calls for the GNU to urgently revise the NHI Act to ensure its reforms respect constitutional rights and freedoms, ensure transparency and are grounded in practical and sustainable principles.