The FW de Klerk Foundation welcomes the Constitutional Court’s judgment yesterday declaring sections 36 to 40 of the National Health Act, 2003 are unconstitutional. The sections had required anyone establishing, or operating, a health facility or service to obtain a certificate of need proving, amongst other things, its necessity, alignment with state planning and contribution to equitable access to healthcare.

“The judgment confirms the Foundation’s longstanding concern that the increasing centralisation of state power is placing growing limits on individual freedoms,” said Christo van der Rheede, Executive Director of the FW de Klerk Foundation. “The state’s focus should be to establish a highly effective and efficient public health system in urban and rural areas and to ensure that municipalities create a conducive environment that is attractive and safe for health practitioners to have a wide variety of options to choose from. Unfortunately, due to the mismanagement of health facilities, health practitioners are not willing to sacrifice their safety and professionalism to deal with dysfunctional health entities,” continues van der Rheede.

“The Court emphasised that the state’s exercise of power is subject to two key constitutional limits: it must be rationally connected to its purpose and must not infringe constitutional rights,” adds Daniela Ellerbeck, an attorney and the manager of the FW de Klerk Foundations Constitutional Rights Programme. “By allowing the state the power to deny a certificate of need, the provisions effectively gave it control over where healthcare professionals may practise. Although the state argued that this would promote more equitable access to healthcare, the Court noted that the High Court’s finding – that the provisions regulate location rather than quality – was not challenged, and held that the Act’s failure to consider consideration of affected healthcare providers’ rights and interests irrational”, explains Ellerbeck. “The Court’s ruling further reinforces the Foundation’s position that aspects of the National Health Insurance Act, 2023 – particularly irrational design, excessive state discretion and failure to adequately consider the rights of healthcare providers – pose similar problems”. 

The Foundation reiterates its support for lawful, transparent and constitutionally compliant healthcare reform that expands access to quality healthcare while protecting the rule of law, individual freedoms and the integrity of South Africa’s healthcare system.