The National Education, Health and Allied Workers’ Union [NEHAWU] notes the Constitutional Court judgement marking Sections 36 and 40 of the National Health Act null and void.

This judgement was preceded by a High Court ruling on 24 July 2024, in which Judge Anthony Miller declared the Certificate of Need, which form part of Section 36 and 40 of National Health Act, unconstitutional. 

The Certificate of Need is a regulatory mechanism that sought to ensure that every health establishment, institution, agency or personnel who provide healthcare services require a certificate from the Director-General at the National Department of Health (NDoH) prior to commencing operations. This mechanism also sought to ensure that the uneven geographical spread of private healthcare services is addressed, a product and symptom of the Apartheid legacy two-tiered healthcare system. 

These two regulatory principles are indeed a necessity in any developing country, especially one such as ours, characterized by a nonsensical and highly unequal two-tiered healthcare system, with persistent colonial-apartheid geographic, economic and spatial planning. Ensuring that healthcare institutions and professionals are vetted and registered forms a holistic approach to ensure quality of service to our people. This is not some ad-hoc or draconian regulatory mechanism, it is common practice internationally.

In our opinion, and not to disrespect the Constitutional Court ruling, the judgement represents another blow to a struggle for adequate and accessible healthcare in South Africa. The judgement bolsters the coalition of big capital in their attempts to derail the introduction of Universal Health Coverage through the National Health Insurance Act. It also represents a deepening class contradiction of societal representation in power and a lack of genuine understanding of conditions of workers and the poor in this country. It is not a coincidence that that the litigants in this case form part of the very same grouping attacking NHI at various levels of our Judiciary, this is a consolidated front of big capital that will do anything to prevent our people from gaining access to adequate universal health coverage. 

Our Constitution enshrines individual liberty but most certainly not to the detriment of the society as a whole. NEHAWU therefore appeals for the legislation to be reformed adequately to pass Constitutional scrutiny and to ensure that the principle behind the Certificate of Need is upheld.   

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Issued by NEHAWU Secretariat.

Zola Saphetha (General Secretary) at 082 558 5968; December Mavuso (Deputy General Secretary) at 082 558 5969; Lwazi Nkolonzi (NEHAWU National Spokesperson) at 081 558 2335 or email: lwazin@nehawu.org.za