Concourt sets aside health proclamation

Published Jan 27, 2015

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Cape Town - A proclamation that effectively criminalised the provision of health services without a certain certificate was set aside by the Constitutional Court on Tuesday.

A full bench of justices granted President Jacob Zuma and others direct access to the court on the basis that it was in the interests of justice to swiftly rectify the legislative problem.

They declared Proclamation 21 of 2014 invalid and set it aside, without making a costs order.

Zuma signed the proclamation in March, which brought certain sections of the National Health Act into force as of April last year.

The sections criminalised the provision of health services without a properly issued certificate of need.

However, no providers can yet obtain a certificate of need because the health minister has not yet prescribed regulations regarding the application and granting of certificates.

The SA Dental Association (Sada) brought this situation to the attention of the presidency.

Sada and the Hospital Association of SA were listed as respondents and supported the relief sought by Zuma, the minister in the presidency, the director-general in the presidency, the health minister and the director-general of the health department.

Zuma submitted that he acted in good faith when he determined a date for the provisions to take effect. He said he was led astray by his advisors' mistaken counsel.

He maintained that the proclamation was at odds with the Constitution, which guaranteed everyone the right to life and access to health care.

He could not withdraw the proclamation because the date for its commencement had since passed.

The court found that the issuing of the proclamation had led to an untenable and unintended situation which could inhibit or discourage health care practitioners from providing essential services, at the risk of criminal sanctions for doing so.

Sapa

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