The Constitutional Court ‘s (ConCourt) ruling on 18 May that the Certificate of Need (CoN) provisions in the National Health Act are unconstitutional, dealt a “significant blow” to Government’s plans to centralise healthcare providers’ role as part of the NHI roll out. – Business Day (19 May 2026)
“Acting Justice Kate Savage, writing for the apex court, acknowledged the country’s deep healthcare inequalities but concluded that the legislation failed to establish a rational connection between the CoN system and Government’s stated goal of improving equitable access to healthcare. “
(“The unanimous ruling confirms an earlier 2024 judgement of the Pretoria High Court that sections 36 to 40 of the National Health Act were irrational and invalid. The provisions would have allowed the Health Minister to determine where doctors, nurses and healthcare facilities could operate, including the placement of private hospital wards and specialised equipment.)
Health Department’s reaction:
In reaction to the judgement a spokesperson of the Health Department said the ConCourt had not declared any part of the NHI Act unconstitutional and noted that the CoN provisions had never been implemented.
There is no direct impact of the judgment on the NHI, he said. He accused some political and private healthcare stakeholders of misleading the public about the ruling’s significance.
The Department added that it would continue preparations for universal healthcare coverage through the NHI framework.
Private healthcare providers’ reaction:
Dr Simon Strachan, CEO of the SA Private Practitioners Forum (SAPPF) welcomed the judgment saying that many of the constitutional arguments about doctors' rights are similar to those raised in challenges to the NHI Act.
Solidarity deputy CEO Anton van der Bijl described the judgment as the collapse of “one of NHI’s central pillars”.
DA health spokesperson Michele Clark said the ruling established an important constitutional precedent against excessive centralisation in healthcare administration.
ActionSA MP Kgosi Letlape described the decision as “a significant victory against state overreach”.
The Hospital Association of SA (HASA), representing private hospitals, welcomed the legal clarity brought to a long-standing issue.