SA Concourt Amends Presidential Mistake

The Constitutional Court of South Africa has fixed a mistake made by President Jacob Zuma last year which had the unintended consequence of criminalising the provision of health care.

The President approached the court saying he was unable to fix the error himself and the legislative process would take too long.

In March last year, following advice from departmental officials, President Jacob Zuma signed Proclamation 21. This breathed life into criminal sanctions contained in sections of the National Health Act.

Thus from the first of April last year, any medical practitioner found without a Certificate of Need faced at least five years in prison with or without the option of a fine. But the regulations governing this certificate are still under public consultation – meaning that doctors and dentists cannot apply for it yet.

Justice Johan Froneman says, “The consequence is that practicing health service providers in South Africa are engaging in criminal conduct.”

It appears that no criminal prosecutions have been brought in the more than nine months since the Proclamation came into effect

The South African Dental Association threatened legal action unless the President withdrew the Proclamation by August last year.

But, the President said his hands were tied, as the proclamation had already come into effect and there was no mechanism in the law for him to reverse it. He thus approached the Constitutional Court, together with members of his cabinet and government ministers.

The Constitutional Court judges said this was the right thing to do.

“In a unanimous judgment, this court finds that it is in the interest of justice to grant the President direct access to the court in order to remedy the premature issuing of proclamation. The error needs to be swiftly addressed and legislative process required to need to rectify  the problem would be lengthy and burdensome. The court finds that the issuing of the proclamation has led to an untenable and unintended situation which could discourage health care service providers from providing these essential services at the risk of criminal sanction.”

The applicable standard for the review of the President’s decision is one of rationality.

“This is an objective inquiry which does not take into account the President’s good intentions. The purpose of the President’s power to bring portions of the act into operation is to achieve an orderly and expeditious implementation of a national regulatory scheme for health service. This court concludes that the decision to issue the proclamation before there was any mechanism in place to address applications for certificate of need was not rationally directed to this purpose or any other governmental objective the president’s decision was therefore irrational and invalid.”

The South African Dental Association and the Hospital Association of South Africa supported the President’s Constitutional Court application. Dental Association CEO Maretha Smit says they will continue to engage with government.

“It takes some of the stress out of the equation. A lot of the doctors and our dentist members have been very nervous as to the implications. We will start engaging with the Department of Health in order to find mechanisms to achieve exactly what they were setting out to achieve and that is to bring access of healthcare to all South Africans. We never believed and still do not believe that the certificate of need is the mechanism to do so and that’s the basis that we would like to start engaging on.”

It appears that no criminal prosecutions have been brought in the more than nine months since the Proclamation came into effect. But now that it has been set aside by the highest court in the land it can safely be ignored- almost as though it never existed in the first place.