i Short answer
On 18 May 2026, the Constitutional Court confirmed a High Court ruling that sections 36 to 40 of the National Health Act, the Certificate of Need provisions, are unconstitutional. These sections gave the Director-General of Health extensive power over where healthcare providers could practise.
The ruling doesn't strike down the NHI Act itself, but weakens a key regulatory pillar, government maintains the broader NHI programme remains viable and on track despite this specific setback.
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NHI ConCourt Ruling: Key Facts
Legal proceedings are ongoing, always verify the current status directly.
1. What the Constitutional Court actually ruled
Healthcare brokers and medical scheme members concerned about the impact of the country's multi-year National Health Insurance Act rollout received significant news following an 18 May 2026 Constitutional Court ruling against the Minister of Health and others.
The Constitutional Court confirmed the July 2024 High Court order of "constitutional invalidity" for sections 36 to 40 of the National Health Act, labelling these sections inconsistent with the Constitution and invalid.
2. What the Certificate of Need provisions did
Sections 36 to 40 of the National Health Act gave extensive powers to the Director-General of Health to issue, refuse, withdraw, or make subject to conditions a Certificate of Need, a document that would have been required before healthcare providers and facilities could begin operating.
Critics argued this mechanism was far more than administrative paperwork, describing it as an instrument that could centralise state control over where and how private healthcare professionals were permitted to practise.
3. Why the Court found them unconstitutional
The Constitutional Court found these sections "inconsistent with the Constitution and invalid in that they are irrational and unjustifiably limit the right to choose a trade, occupation or profession freely," rights protected under section 22 of South Africa's Constitution.
The Minister of Health and the Director-General of Health, as respondents in the case, were ordered to pay the applicants' costs, in a case brought by Solidarity, a further signal of how comprehensively the Court sided against the provisions.
4. Does this affect the broader NHI Act?
No, the ruling does not strike down the NHI Act itself, it specifically weakens a regulatory pillar within the separate National Health Act that government could have used to centralise control of healthcare services more broadly.
Health Minister Aaron Motsoaledi responded that the judgment "does not stop or invalidate the NHI programme," maintaining that the broader rollout remains viable and on track despite this specific legal setback to one supporting mechanism.
5. Other legal challenges still pending
This ruling is separate from another significant Constitutional Court matter, where the Board of Healthcare Funders and the Western Cape Provincial Government challenged the NHI Act's own drafting and public participation process specifically.
After two days of hearings, the Constitutional Court reserved judgment on this separate matter, meaning further significant rulings on the NHI Act's core validity, distinct from this Certificate of Need decision, remained pending as of this ruling.
Key Takeaways
- On 18 May 2026, the Constitutional Court confirmed a High Court ruling that sections 36-40 of the National Health Act, the Certificate of Need provisions, are unconstitutional.
- The ruling does not strike down the NHI Act itself, but weakens a key regulatory pillar the government could have used to centralise control over healthcare provider operations.
- The Court found the Certificate of Need provisions irrational and an unjustifiable limit on the constitutional right to freely choose a trade, occupation, or profession.
- Health Minister Motsoaledi stated the judgment doesn't invalidate the broader NHI programme, which government maintains remains viable and on track.
- A separate Constitutional Court case, brought by the Board of Healthcare Funders and Western Cape Government challenging the NHI Act's drafting process, remained pending at the time of this ruling.
- Multiple ongoing legal challenges on different timelines mean further significant rulings, and potential JSE healthcare share reactions, likely remain ahead.
Frequently asked follow-up questions
What exactly did the Constitutional Court rule on 18 May 2026?
The Constitutional Court confirmed a July 2024 High Court order of constitutional invalidity for sections 36 to 40 of the National Health Act, provisions that gave the Director-General of Health extensive power to issue, refuse, withdraw, or attach conditions to a Certificate of Need required before healthcare providers could open or operate a practice.
Does this ruling strike down the entire NHI Act itself?
No, the ruling does not strike down the NHI Act itself, it specifically weakens the National Health Act's Certificate of Need provisions, described by critics as a key regulatory pillar the government could have used to centralise control over where and how healthcare providers operate.
Why did the Court find these specific sections unconstitutional?
The Court found sections 36 to 40 irrational and an unjustifiable limitation on the constitutional right to choose a trade, occupation, or profession freely, as protected under section 22 of the South African Constitution.
Has the government indicated it will still pursue NHI despite this ruling?
Yes, Health Minister Aaron Motsoaledi stated the judgment does not stop or invalidate the broader NHI programme, and that government considers it still viable and on track despite this specific setback to the Certificate of Need mechanism.
Are there other legal challenges to the NHI Act still pending?
Yes, separately, the Constitutional Court heard a distinct case brought by the Board of Healthcare Funders and the Western Cape Provincial Government challenging the broader NHI Act's own drafting and public participation process, with judgment on that specific matter still pending as of this ruling.
How should traders think about ongoing NHI-related legal uncertainty?
Multiple separate legal challenges are moving through the courts on different timelines, worth watching for further rulings specifically, since each meaningful court decision has historically produced measurable reactions in JSE-listed healthcare shares like Discovery, Netcare, and Life Healthcare.
📚 Sources & further reading
This article draws on official court publications and established South African legal and financial media. Always verify the current legal status directly.
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