National Health Act: Constitutional Court Rules on Certificate of Need

Posted 19 May 2026 Written by Acts Online
Category Health

Brought to you by SA Legal Academy: The Constitutional Court has issued a ruling on sections 36 to 40 of the National Health Act, No. 61 of 2003, which govern the requirement for health facilities and agencies to obtain a certificate of need, prompting conflicting statements from the Department of Health and Parliament regarding its impact on the National Health Insurance Act, No. 20 of 2023.

In a media statement following the Constitutional Court’s ruling on 18 May 2026, the Department of Health asserted that sections 36 to 40 of the National Health Act, No. 61 of 2003 had never been operationalised. Consequently, the department maintains that the judgment has “no direct impact” on the implementation of the National Health Insurance Act, No. 20 of 2023, and that health system strengthening preparations will proceed uninterrupted.

However, regulatory records indicate that sections 36 to 40 of the National Health Act, No. 61 of 2003 were brought into operation on 1 April 2014 by presidential proclamation in the Government Gazette published on 31 March 2014. This operational status is reflected in updated statutory compilations, including those reviewed by the Southern African Legal Information Institute (SAFLII) in February 2026.

The National Assembly Portfolio Committee on Health has expressed concerns regarding the ruling’s broader impact on health equity and resource planning. The committee noted that the invalidated provisions were designed to facilitate an equitable distribution of healthcare services across South Africa. To address these regulatory uncertainties, the committee plans to invite the Minister of Health, Aaron Motsoaledi, and departmental officials to provide a briefing on:

  • The direct legal and operational consequences of the Constitutional Court ruling;
  • The impact of the judgment on existing health policy frameworks; and
  • Potential future legislative interventions and broader health system reforms.

What this means for you, your business, or your clients

  • For yourself: No direct individual compliance obligations; however, healthcare law practitioners must monitor upcoming parliamentary briefings to advise on future legislative replacements for the invalidated certificate of need provisions.
  • For your business: Healthcare providers and private practice groups should review their long-term capital expenditure and expansion plans, as the invalidation of the certificate of need requirements temporarily removes a significant regulatory barrier to establishing or expanding facilities.
  • For your clients: Clients operating in the private and public healthcare sectors must be advised that while the immediate certificate of need requirements under sections 36 to 40 are invalid, subsequent legislative amendments or alternative regulatory mechanisms are highly likely to be introduced to align with the NHI framework.

Originally published at https://legalacademy.co.za/news/read/national-health-act-mixed-messages-on-concourt-ruling

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