Regulating Healthcare or Restricting It? Where the Constitutional Court Drew the Line

South Africa’s Constitutional Court has once again been called upon to strike a delicate balance between transformative state policy and entrenched constitutional rights.

In Solidarity Trade Union and Others v Minister of Health and Others [2026] ZACC 19, the Court was confronted with a central question: when does regulation become unconstitutional restriction? The answer, delivered in a unanimous judgment, was unequivocal. Sections 36 to 40 of the National Health Act 61 of 2003, introducing the controversial “certificate of need” scheme were declared unconstitutional. 

Background 

Sections 36 to 40 of the National Health Act introduced a certificate of need regime requiring healthcare providers, establishments, and agencies to obtain state approval before establishing, expanding, or continuing their operations.

The scheme sought to address the unequal geographic distribution of healthcare services in South Africa, where resources remain concentrated in urban and affluent areas. By empowering the Director-General of the National Department of Health to grant or refuse certificates based on various factors, the state aimed to ensure a more equitable allocation of healthcare services and resources. 

However, the applicants challenged the scheme on the basis that it infringed several constitutional rights and was not rationally connected to its intended purpose. The High Court declared the provisions invalid, and the matter proceeded to the Constitutional Court for confirmation.

Legal Framework 

The Constitutional Court’s assessment centred on two key constitutional principles: the requirement of rationality and the protection of the right to choose a trade, occupation, or profession under section 22 of the Constitution.

First, the principle of rationality requires that the exercise of public power must be rationally connected to a legitimate government purpose. While the Court acknowledged that the goal of improving access to healthcare is legitimate and constitutionally grounded in section 27 of the Constitution, it found that the certificate of need scheme lacks a coherent and rational connection to that objective.

The scheme, as it currently stands, suffers from several defects:

• It depends on regulations that have not yet been promulgated, rendering its scope uncertain; 
• It vests broad discretionary powers in the Director-General and the Minister without sufficient safeguards;
• It fails to have regard to  the rights and interests of health establishments, agencies or  providers when a determination is to be made whether to grant a certificate of need.

Secondly, the Court considered the impact of the scheme on section 22. The scheme, created by the impugned provisions, once operational, will prohibit persons from entering or remaining in the profession where they lack a valid certificate of need. Healthcare providers could thus be faced with the burden of practising in a place contrary to their choosing, or prevented from practising in a particular location, or risk the threat of criminal sanction. By making the ability to practise a profession conditional on obtaining a certificate, the regime significantly curtails professional autonomy. 

The Court found that this constitutes a serious limitation on the right to choose a profession and that the limitation is neither reasonable nor justifiable under section 36 of the Constitution.

Significance of the Judgment

The judgment has far-reaching implications for both health policy and administrative law.

First, it reinforces the centrality of rationality in constitutional review. Even where legislation pursues a legitimate and important objective, it must do so through means that are coherent, structured, and logically connected to that purpose. The Court made it clear that vague, open-ended regulatory schemes will not withstand constitutional scrutiny.

Second, the decision affirms the importance of professional freedom under section 22 of the Constitution. The Court recognised that the ability to choose and practise a profession is closely tied to dignity and autonomy. 

Third, the judgment sends a strong message regarding transformative legislation. While the state bears a constitutional obligation to address inequality and expand access to healthcare, these goals cannot justify the adoption of measures that are overly broad or intrusive. 

Finally, the Court’s decision to sever the impugned provisions in their entirety underscores the seriousness of the constitutional defects

It reflects a view that the scheme was fundamentally flawed and incapable of being remedied.

Conclusion

The decision in Solidarity v Minister of Health is a powerful reaffirmation of constitutional principle. It demonstrates that while the pursuit of equitable healthcare remains a pressing national priority, the measures adopted to achieve it must be rational, proportionate, and respectful of fundamental rights. In striking down the certificate of need scheme, the Constitutional Court drew a clear line: regulation is certainly permissible, provided  it does not become an unconstitutional restriction.