Judgment reserved in certificate of need case  

11 March 2022

Judgment was reserved in Solidarity’s case in the Pretoria High Court heard on Friday 11 March to have sections 36 to 40 of the National Health Act declared invalid and to have them reviewed. According to Solidarity, this legislation forms one of the pillars of the proposed National Health Insurance (NHI), and victory in this matter would deal the NHI a significant blow, even before its inception.

These sections stipulate that health practitioners must obtain a certificate of need from the Department of Health before they may establish a practice in a specific area.

In its application Solidarity argued that the requirement of such certificates infringes unlawfully on the right of health practitioners to practise their profession.

“It is unacceptable and absurd that someone such as a private general practitioner should first apply to the government before they may set up a practice. What is even worse is that it is within the powers of the Director-General of the Department to prescribe virtually all the practice’s activities, ranging from the equipment to its human resources, and even the size of the practice,” Pierru Marx, the network coordinator for Solidarity’s Medical Sector said.

“In essence, it empowers the government to capture medical practices almost in their entirety, and to manage them as it deems fit, rather than leaving it to the doctors’ discretion. We cannot just take a backseat and hope that the government would simply always apply its wide discretion responsibly. The government should not have such powers at all,” Marx explained.

Solidarity contends that decisions on health care should rather be taken by health practitioners and that more government interference would ultimately be to the detriment of everyone.

“The medical sector in South Africa does not need yet more bureaucracy. We should actually empower and encourage our health practitioners. This type of legislation leads to ineffective care, a sicker country and an outrage among medical staff whose rights are being trampled on as a result of this legislation. 

We are very optimistic that a positive outcome will be achieved which would be a huge victory for health practitioners and healthcare in South Africa. In addition to such an already big win, it would also pave the way for future litigation to stop the NHI entirely,” concluded Marx.

Issued by Peirru Marx, Network Coordinator: Medical Sector, 11 March 2022