Solidarity obtains costs order against department in case on NHI cornerstone 

15 November 2022

The North Gauteng High Court today granted a costs order against the Department of Health in Solidarity’s court case against the Certificate of Need, a cornerstone of the proposed National Health Insurance (NHI). This comes after the department applied to set aside this court’s judgment with a costs award made earlier this year declaring sections 36 to 40 of the National Health Act unconstitutional.

Following sharp criticism of the department the court today ruled that the case be postponed pending a decision on Solidarity’s application to the Constitutional Court to ratify an earlier ruling by the North Gauteng High Court.

According to Solidarity, the High Court’s initial judgment was a milestone victory protecting the constitutional rights of health practitioners across the country. Sections 36 to 40 of the Act determined that health practitioners must be in receipt of a Certificate of Need (CON) issued by the department before they may establish a practice in a specific area.

“The state’s aim with it and one it is also pursuing is to ensure that everything is managed centrally. This objective has been clear all along, especially in relation to the NHI – the state wants to increase its power over the health sector and practitioners working in the sector,” Anton van der Bijl, Solidarity’s deputy chief executive for legal matters stated. “Sections 36 to 40 of the Act would empower the government to set requirements, in essence empowering the government to almost completely capture medical practices and to run them at its discretion – rather than that of doctors. We cannot simply sit back hoping that the government would always exercise its wide discretions responsibly. The government should not have such powers at all.” 

Solidarity believes that the government should not own health care but that it should rather belong to those practising it. Moreover, it is not the government’s place to expropriate practices and to establish regulations that will negatively impact the entire population. 

“The department launched this application today because they had no other choice; the certificate of need was an integral part of the proposed NHI. Without it, they cannot tell doctors where and how they should practice. The medical sector in South Africa does not need yet more bureaucracy. We actually should empower and encourage our healthcare 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, but the department chooses to ignore this and continue the fight,” Van der Bijl explained.  

A government that stood by idly while health care in the public sector decayed now wants to turn to the private sector’s doctors and infrastructure. Health care cannot and will not be left to the government alone. We are optimistic about a positive outcome in the Constitutional Court, which will be a huge victory for healthcare practitioners and health care in South Africa. In addition to being a major victory, such a ruling will also pave the way for future litigation to stop the NHI entirely,” Van der Bijl concluded. 

Issued by Anton van der Bijl, Deputy Chief Executive: Legal Matters, 15 November 2022