High Court ruling a major blow to NHI, but a win for health practitioners, Solidarity says

South Africa’s National Health Insurance (NHI) system has been dealt a major blow in the courtroom.

The North Gauteng High Court in Pretoria ruled on Wednesday that sections 36 and 40 of the National Health Act were unconstitutional.

These sections sought to stipulate that healthcare practitioners would need to obtain a Certificate of Need from the Department of Health before being able to establish a practice in an area of their choice.

Trade Union Solidarity, which brought the matter to court along with other health-related organisations, argued that the requirement infringed unlawfully on the right of health practitioners to practise their profession and would amount to “expropriation” of their businesses and properties.

“The government wants to change to a system in which healthcare is nationalised and healthcare practitioners become servants of the state so that the provision of all healthcare can be centrally controlled by the state. This victory thwarts those disastrous plans,” said Solidarity CEO Dr Dirk Hermann.

The union said these sections would have empowered the government to capture medical practices almost entirely and to manage them at will, potentially with no regard for the discretion of the doctors.

“We cannot simply hope that the government would simply always apply its wide discretions responsibly. A government should not have such powers at all,” Hermann added.

Solidarity said this type of legislation would lead to poorer healthcare and resentment on the part of healthcare practitioners.

Government legal teams defending the NHI argued that the organisations opposing the certificates only represented a minority of South Africans with the means to afford private healthcare. In that regard, the NHI seeks to address the imbalances of the past.

However, Judge Anthony Miller ruled that the scheme would amount to an expropriation of property and services, potentially without fair compensation, and limit practitioners’ freedom of practice and movement.

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