The North Gauteng High Court has postponed the health department’s application to scrap a judgement handed down earlier in 2022, which torpedoed its plans for deciding where doctors work, pending the outcome of the Constitutional Court’s decision on whether to ratify the ruling.
In June, acting judge Thembi Bokakao upheld an application brought by trade union Solidarity and five other parties challenging the constitutionality of the National Health Act’s “certificate of need” provisions, which are an integral part of the government’s plans for National Health Insurance (NHI). Her ruling, which found sections 36 to 40 of the Act were unconstitutional and invalid, requires confirmation by the Constitutional Court before it comes into effect.
Under NHI, the government intends to manage the distribution of health services by requiring healthcare professionals and facilities to obtain a certificate of need before they can set up shop or expand a practice. The most vocal opposition to the certificate of need has come from doctors, but the provisions in the Act also have a direct bearing on the operation of private healthcare businesses such a hospitals, pathologists and radiology practices.
The health department, which did not oppose Solidarity’s original high court application, launched a high court bid on July 28 to rescind Bokako’s judgement. It then launched a stay application on September 27 to delay the Constitutional Court’s confirmation of her finding of unconstitutionality, pending the outcome of its recission application. Its case for recission rests heavily on its claim that it was unaware of Solidarity’s high court application, and was therefore unable to present its side of the story. Solidarity, however, says its attorneys made numerous attempts to inform it of the matter, both by hand and via email.
The Constitutional Court asked Solidarity and the health department on October 26 to provide it with written arguments on whether the high court had the authority to rescind its order of constitutional invalidity, and whether it was in the interests of justice to grant the health department’s stay application. Both parties have made their submissions, but the Constitutional Court has yet to issue further instructions.
On Tuesday, acting judge Jaco van Heerden ruled that the recission application be postponed while the Constitutional Court considered the matter, and awarded costs to Solidarity.
“We are optimistic about a positive outcome in the Constitutional Court, which will be a huge victory for healthcare practitioners and healthcare in SA. In addition to being a major victory, such a ruling will also pave the way for future litigation to stop the NHI entirely,” said Solidarity’s deputy CEO for legal matters, Anton van Bijl.
“Without [the certificate of need], they cannot tell doctors where and how they should practice. The medical sector in SA does not need yet more bureaucracy … this type of legislation leads to ineffective care, a sicker country, and outrage among medical staff whose rights are being trampled on,” he said.
Would you like to comment on this article?
Sign up (it's quick and free) or sign in now.
Please read our Comment Policy before commenting.