No person may operate or open a new health establishment without being in possession of a certificate of need,. Image: iStock
Health Minister Dr Aaron Motsoaledi is deeply concerned about the court judgment that declared certain sections of the National Health Act invalid and unconstitutional.
In his judgment handed down on Wednesday, Gauteng High Court Judge Anthony Millar declared sections 36 to 40 of the National Health Act that force doctors to register for a “certificate of need” are “invalid in their entirety and are consequently severed from the act”.
Sections 36 to 40 relate to the “Certificate of Need”, which the Health Department wants to adopt to exert more control over where doctors and medical professionals can practise in a specific area in the country.
Motsoaledi said the department differs with the findings adding that while the department executes its mandate of provision of healthcare as a “human right, the court seemed to have placed economic property rights at the expense of the right to health”.
“It is very unfortunate that while we live within the borders of the same country we seem to be existing in two different worlds – one world where it is believed that the right to health must reign supreme and the other world of economic property rights for the privileged few, where the welfare of human beings counts for nothing.
“We are even struggling to understand how a right to health by all people in our country interferes with other people’s rights to own property,” Motsoaledi said.
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Motsoaledi said the department is considering its legal option.
“It is common cause that any section of an act declared unconstitutional by a court of law, must be confirmed by the Constitutional Court. Ordinarily there would have been no need for us to appeal to the Constitutional Court because the matter is heading there anyway. Nevertheless, we will still consider all our options including an appeal.”
Motsoaledi added the “ongoing war going on in the courts, media and all public institutions about provision of healthcare is a proxy war between the rich and the poor and not between the rich and the State”.
“That is why the judgment emphasises on property rights, exactly the same argument which is presented in courts when the poor black majority want access to land. For our part as a department we will at all times take the side of the poor,” Motsoaledi said.
Trade union Solidarity and several independent medical practitioners brought the case to court
Solidarity CEO Dirk Hermann described the judgment as a significant breakthrough in its fight against the National Health Insurance (NHI) act.
Hermann said the state’s goal with sections 36 to 40 clearly was to pave the way for the “NHI and to compensate for the bankruptcy of the state coffers”.
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