'Most Notably' (25 May 2026)

We were hoping that – well before the time came to pen this week's 'Most Notably' – the Department of Health would clarify its confusing response to the 18 May 2026 Constitutional Court National Health Act ruling. As we've already reported for SA Legal Academy, among other things the department's media statement on the severance of sections 36 to 40 from the 2003 Act claimed that these provisions "have never been brought into effect". Dealing with matters relating to proposed new health facility or agency certificate of need obligations, in essence sections 36 to 40 empower the department's Director-General to determine whether and where new health facilities are justifiable.

That the sections "have never been brought into effect" seemed rather odd. After all, why would Solidarity and seven other applicants have gone to the trouble and expense of questioning the constitutionality of sections yet to be operationalised? So, we looked into the matter. Here's what we discovered:

• On 31 March 2014, a presidential proclamation was gazetted commencing the Act's sections 36 to 40.

• On 27 January 2015, the Constitutional Court handed down a ruling declaring the proclamation invalid and setting it aside – based on the fact that there was no mechanism in place to address certificate of need applications. At the time, the sections' constitutionality appears neither to have been questioned nor brought to the attention of the media.

Whether the department ever began developing certificate of need regulations and procedures is not clear. During the ensuing decade, the national health insurance (NHI) debate has taken centre stage – with the NHI Act joining the statute books in May 2024. although it has yet to be operationalised.

Perhaps concerns about the implications of NHI Act implementation for the private healthcare industry propelled Solidarity and the seven other applicants concerned into proactively challenging the constitutionality of health facility certificates of need. According to a Solidarity media statement welcoming the Constitutional Court ruling, the certificate of need "was one of the most important mechanisms by which the government wanted to exercise greater control over the health industry".

"One of the NHI's central pillars has collapsed today," Solidarity deputy chief executive Anton van der Bijl is quoted as having said. "The certificate of need was far more than merely an administrative instrument. It was an instrument of centralisation and state control."

Against that backdrop, the department's response to the Constitutional Court's National Health Act sections 36 to 40 ruling would have done well to give context to its somewhat dismissive statement that these provisions "have never been brought into effect". As things now stand, the statement has been published in its entirety by Politicsweb and quoted verbatim by Government Communication & Information System mouthpiece SAnews.

It would also be helpful if the Southern African Legal Information Institute would update its version of the 2003 Act to reflect the prevailing status of the 31 March 2014 presidential proclamation – and sections 36 to 40 by default.

Until next Monday ...

Policy Watch SA

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