Both the Department of Health and Parliament’s Portfolio Committee on Health have reacted to the Constitutional Court’s declaration that sections 36 to 40 of the National Health Act are unconstitutional, rejecting claims that the ruling has any bearing on the National Health Insurance Act.
NHI is not affected, says department
The Department of Health moved quickly to distance the ruling from the NHI, with spokesperson Foster Mohale cautioning against what he described as deliberate misinformation.
“It is also important to clarify that the judgment is not a judgment relating to the National Health Insurance (NHI) Act,” Mohale said.
“The sections in question were passed by Parliament 23 years ago and have never been brought into effect.”
He said the attempt to link the two was misleading.
“There is no direct impact of the judgement on the NHI as some within the political and private health sector have rushed to mislead the public on,” Mohale said.
“No section of the NHI has been declared unconstitutional.”
The department said it remained committed to pressing ahead with NHI preparations, with Mohale confirming it would “continue with all necessary health system strengthening preparations for the NHI as the mechanism for South Africa to realise universal healthcare coverage,” in line with section 27 of the constitution.
Committee respects ruling but flags inequality crisis
Portfolio Committee on Health Chairperson Faith Muthambi said the committee respected the Court’s authority and accepted the legal guidance provided by the judgment.
She acknowledged the Court’s finding that the certificate of need provisions failed on rationality and proportionality grounds, but contextualised the ruling within South Africa’s persistent health care inequality.
“Access to quality healthcare remains uneven across geographic and socio-economic lines, and the state retains a clear constitutional obligation to progressively realise this right for all,” Muthambi said.
“The need for meaningful and sustainable transformative interventions within the health sector remains urgent and undisputed.”
She said the provisions had been well-intentioned, even if they fell short constitutionally.
“While the objective of ensuring equitable access to healthcare services remains both necessary and constitutionally grounded, the court found that the certificate of need provisions failed to satisfy the required standards of rationality and proportionality,” Muthambi said.
The committee acknowledged that the scheme’s shortcomings lay in its design, specifically the absence of adequate safeguards and the conferral of overly broad discretionary powers on administrative authorities.
What happens next
Muthambi said the committee would not leave the matter there and would call on the health minister and departmental officials to brief it on the full implications of the ruling, including its effect on existing policy frameworks, future legislative interventions, and broader health system reform.
The department, meanwhile, made clear that the judgment changes nothing about its NHI trajectory, reaffirming its mandate under section 27 of the constitution, which guarantees everyone the right to access health care services, including reproductive health care.
