On 27 January 2015, the Constitutional Court handed down judgment in a direct application to declare invalid a proclamation of the President bringing certain sections of the National Health Act into operation.

On 21 March 2014 the President signed a proclamation which brought certain sections of the National Health Act into force as of 1 April 2014. These sections collectively criminalised the provision of health services without a properly issued “certificate of need”. The Act authorises the Minister of Health to prescribe regulations regarding applications for, and the granting of, these certificates.

However, the required regulations are not yet in operation and, therefore, no health service providers can obtain a certificate of need.The consequence created by this is that practising health service providers in South Africa are engaging in criminal conduct.

The President and other members of the Cabinet and Presidency maintained that the decision to bring the sections into operation was made in good faith, but in error, and was therefore irrational in law. They sought to have the proclamation set aside. The President is unable to withdraw the proclamation because the date for its commencement has long since passed and there is no mechanism contained in the Act itself to remedy the situation.

The Court found that the issuing of the proclamation had led to an untenable and unintended situation that could inhibit or discourage health care practitioners from providing essential services. The Court held that the decision to issue the proclamation before there was any mechanism in place to address applications for certificates of need was not rationally connected to this purpose (or any other governmental objective). The President’s decision was irrational and therefore invalid. Accordingly, the proclamation was set aside.

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