IN SHORT: South Africa’s Constitutional Court struck down Sections 36 to 40 of the National Health Act on May 18, declaring the Certificate of Need provisions unconstitutional and severing them from the legislation. The ruling confirms a 2024 Gauteng High Court judgment and removes one of the most contested components of the National Health Insurance framework: the state’s power to dictate where healthcare professionals may work and practices may be established. Health Minister Aaron Motsoaledi said the NHI Act itself remains intact. A separate Constitutional Court challenge to the NHI Act’s public participation process is still pending judgment.
South Africa’s apex court has killed off the Certificate of Need scheme that would have given the government control over where doctors, nurses and private healthcare facilities could operate, dealing a significant setback to the architecture of the National Health Insurance rollout before the main legal challenge to the Act has even been decided. The Constitutional Court confirmed on May 18 that Sections 36 to 40 of the National Health Act are unconstitutional and invalid, upholding a 2024 ruling by Gauteng High Court Judge Anthony Millar. The provisions required healthcare providers and facilities to obtain ministerial certificates before opening or relocating, giving the state power to direct the geographic distribution of private healthcare capacity.
- The certificate of need scheme was challenged by Solidarity trade union, the Alliance of South African Independent Practitioners Association, the South African Private Practitioners Forum, several individual doctors, and the Hospital Association of South Africa. Their core argument was that the provisions infringed on the constitutional rights of practitioners to choose where to practice their profession.
- The government’s lawyers had described the certificate of need as a central pillar of NHI implementation, arguing it was essential to correct the concentration of healthcare resources in urban areas and correct geographic inequities in access to care. The Constitutional Court disagreed and severed the provisions entirely.
- Health Minister Aaron Motsoaledi moved quickly to limit the political damage, insisting no part of the NHI Act itself had been struck down. The certificate of need provisions were embedded in the National Health Act of 2003, not the NHI Act of 2023. However, the NHI’s implementation roadmap had explicitly relied on those provisions to redistribute private sector capacity.
- A separate and more fundamental challenge to the NHI Act itself is still pending judgment. The Board of Healthcare Funders and the Western Cape government argued before the Constitutional Court on May 5 to 7 that Parliament failed to conduct meaningful public participation before passing the NHI Act. The court reserved judgment and has not yet issued a ruling on that case.
- The private healthcare sector, represented by major medical scheme administrators and the Hospital Association, welcomed the ruling. Medical scheme administrators had argued the certificate of need would have handed the government effective planning control over hospital location, specialist deployment and practice numbers, undermining market competition.
The certificate of need ruling does not stop the NHI in its tracks but it removes a tool the government had intended to use to reshape private sector geography over the transition period. Without the ability to issue or withhold certificates, the government cannot compel private facilities to establish services in underserved areas or prevent new private facilities from opening in already well-served urban markets. The NHI’s central ambition, using a single state fund to purchase healthcare services from both public and private providers for all residents, remains legally intact for now. But the framework for implementing that ambition is progressively being stripped of the instruments the state had assumed it could deploy. Africaspoint covered the ConCourt hearings on the main NHI challenge in full: ConCourt puts SA’s NHI on trial over corruption risk.
The Bigger Picture: The NHI is South Africa’s most ambitious and most contested domestic policy in a generation. The Constitutional Court has now struck down one component before the main hearing has been decided. If the main challenge succeeds and the Act is set aside on procedural grounds, the government would need to restart the entire legislative process with proper public participation, a multi-year delay. If the challenge fails, a version of the NHI proceeds without the certificate of need tool it had counted on. Either way, the gap between the NHI’s ambition and its legal instruments is widening. For investors in South Africa’s private healthcare sector, worth approximately R260 billion annually, each court development is a direct signal about the regulatory environment they will operate in for the next decade.
Source: The Citizen, May 18 2026 / Daily Maverick, May 18 2026
