Can Government Control Where Doctors Practise?

Key takeaways

• Government does not currently have the invalidated National Health Act certificate-of-need power to decide where an independently registered private doctor may establish a practice. On 18 May 2026, the Constitutional Court confirmed that sections 36 to 40 of the National Health Act were unconstitutional and severed them from the Act. Those provisions would have required a certificate before certain health establishments, agencies, services and technologies could be established, operated or continued.
• That judgment did not remove every lawful form of health-sector regulation. Government can still determine or influence where a doctor works in narrower settings. Examples include compulsory internship and community-service placements, a public-sector employment post, professional-registration conditions, lawful rules governing a facility or activity, and voluntary or statutory funding contracts when their governing law is in force.
• The source of the power matters. A community-service allocation, an employer's posting decision, an HPCSA registration requirement, a municipal land-use rule and future National Health Insurance accreditation are not interchangeable. Anyone asked to obtain location approval or move a practice should request the exact legislation, regulation, contract or written decision relied on before accepting the demand.

1. What the certificate-of-need scheme would have done

Sections 36 to 40 of the National Health Act created a broad certificate-of-need scheme. In outline, it would have prohibited a person from establishing, constructing, modifying, acquiring or operating specified health establishments or agencies, increasing beds, providing prescribed services or acquiring prescribed technology without a certificate issued by the Director-General.

The scheme allowed the Director-General to consider matters connected to the distribution of health services, the need for the facility or service, demographics, existing capacity and the public interest. A certificate could carry conditions and could be refused, renewed or withdrawn. Non-compliance could expose a person to criminal consequences.

The provisions therefore reached much further than ordinary registration of an individual practitioner. They could affect whether a private practice, facility, service or technology existed in a particular place and on what terms.

The scheme's history matters:

The official National Health Act page may continue to host a historic text containing the numbered sections. The Constitutional Court order controls their present legal effect. A reader should not treat an older consolidated PDF as proof that the severed scheme remains enforceable.

2. Why the Constitutional Court rejected the scheme

The Court accepted that improving equitable geographic access to healthcare is a legitimate and important government purpose. South Africa's uneven distribution of practitioners and services is real, and section 27 of the Constitution requires the state to take reasonable measures toward progressively realising access to healthcare services.

The problem was the mechanism Parliament chose. The provisions gave the Director-General extensive discretion without adequate legislative standards for deciding who could practise, provide a service or operate a facility in a place. The Court found the scheme irrational and held that it unjustifiably limited the section 22 freedom to choose a trade, occupation or profession.

Section 22 expressly protects citizens' freedom to choose their trade, occupation or profession, while allowing the practice of a trade, occupation or profession to be regulated by law. The Court explained that professional choice is not limited to selecting the label “doctor”. It can include the nature, speciality, location and financial sustainability of the work.

That does not create an unregulated right to practise anywhere in any manner. It means a location-control measure must have a lawful source, pursue a legitimate purpose through constitutionally rational means and contain safeguards proportionate to its effect. The constitutional-law glossary provides the wider rights framework.

3. What the ruling did not decide

The 2026 order should not be stretched beyond the case. It did not hold that:

• every health-sector licence, registration rule or facility standard is invalid;
• government may never use incentives or constitutionally valid legislation to improve rural access;
• newly qualified doctors may choose any internship or community-service site;
• a public hospital must employ a doctor in the doctor's preferred town;
• HPCSA registration and professional-scope rules no longer apply;
• municipal zoning, building, environmental or occupational-safety rules disappear for medical premises;
• medicine-dispensing, radiation, controlled-equipment or other activity-specific approvals are unnecessary; or
• the National Health Insurance Act was declared unconstitutional.

The Department of Health and Parliament both stated after the judgment that the remaining National Health Act continues to operate. The practical task is therefore to identify the particular legal relationship or regulated activity instead of asking whether “government” has one universal power over doctors' locations.

4. Internship and community service are separate statutory systems

A newly qualified doctor is not yet in the same position as a practitioner registered for independent practice. The Health Professions Act, community-service regulations, HPCSA registration categories and Department of Health placement system create a defined route into independent practice.

The Department's Internship and Community Service Programme states that medical graduates complete a 24-month internship and then 12 months of remunerated community service at an approved establishment before qualifying for the relevant independent-practice category. Eligible applicants use the ICSP placement process. Available funded posts, service needs and programme rules affect the final allocation.

Preferences may form part of an application, but they do not amount to an unconditional right to a chosen hospital or province. The official 2026 midyear placement statement records that placements were made against funded posts and health-system needs, including rural and underserved areas.

A doctor considering a placement should preserve:

1. the ICSP application and preference submission;
2. proof of eligibility and HPCSA category;
3. every allocation, acceptance and appeal communication;
4. the establishment and post details;
5. reasons given for any change or refusal; and
6. the deadline and process for a review, query or appeal.

The legality of an allocation depends on the current Act, regulations and programme rules. It is not restored or invalidated by the certificate-of-need judgment. Where an allocation appears unlawful or procedurally unfair, the relevant principles may include the administrative-law glossary and the remedy of judicial review.

5. Public-sector employment can determine a work location

A doctor appointed to a provincial department, public hospital, clinic, university platform or other state post accepts an employment relationship tied to a position and workplace. The employer may have lawful powers under the contract, applicable legislation, collective arrangements and public-service rules to deploy, rotate or transfer staff.

That is not a general power over the doctor's profession. It is an employment decision within a particular relationship. Its validity can depend on:

• the wording of the appointment letter and job description;
• the identified station and any mobility or rotation clause;
• the applicable public-service and provincial framework;
• collective agreements and workplace policies;
• the purpose and rationality of the decision;
• consultation or procedural requirements;
• discrimination, retaliation or occupational-safety concerns; and
• whether the decision is a transfer, temporary deployment, new appointment or termination.

The doctor should request the decision and reasons in writing. Leaving a post, refusing an instruction or relocating before obtaining advice can change the employment dispute. Conversely, an employer should not describe every location dispute as insubordination before establishing the lawful instruction and considering the employee's representations.

6. HPCSA registration controls professional authority, not a blanket map

Registration with the Health Professions Council of South Africa is a prerequisite to practise a registered health profession. The register and category matter. A person registered as an intern, community-service practitioner, medical practitioner, specialist or in another category does not necessarily have the same authority or supervision requirements.

HPCSA registration can control whether a person may practise, the professional category, scope, title, ethical duties and conditions attached to registration. Internship and community-service categories are connected to approved posts. Independent-practice registration enables a broader range of lawful public and private practice arrangements.

That is different from saying the HPCSA ordinarily chooses the town in which every independently registered doctor must work. Before opening or joining a practice, confirm:

• the practitioner's registration is current and in the correct category;
• any speciality or subspeciality is properly registered;
• the proposed services fall within lawful scope and competence;
• supervision requirements are satisfied where applicable;
• professional-indemnity and ethical obligations have been addressed; and
• advertising, fee, referral, record and business arrangements comply with current professional rules.

Registration is necessary but may not be sufficient for every service or site.

7. A lawful site can still depend on facility and activity rules

The invalidation of the certificate-of-need scheme does not mean any building can immediately become any type of health establishment. The exact approvals depend on what is proposed, who owns and operates it, the province and municipality, and the clinical activities or equipment involved.

Possible requirements include land-use or zoning approval, building and occupancy compliance, private-health-establishment licensing under applicable provincial law, Office of Health Standards Compliance requirements, workplace health and safety, fire and accessibility rules, waste management, medicine-dispensing authority, pharmacy regulation, radiation-control approvals and rules for particular equipment or services.

There is no safe universal checklist called a “doctor's location licence”. A consulting room with no controlled equipment may have a different regulatory path from a day hospital, radiology facility, pharmacy, laboratory or multi-bed establishment.

Before signing a long lease or buying equipment, obtain written confirmation of:

1. the property's permitted use and any consent-use requirement;
2. the provincial facility category, if any, and the responsible authority;
3. the operator and practitioner's professional registrations;
4. activity-specific licences, permits or certificates;
5. building, fire, disability-access and occupational-safety compliance;
6. health-record, confidentiality and POPIA controls;
7. medicine storage, dispensing and waste obligations where relevant; and
8. funder-network or hospital-admitting contracts that affect commercial access.

A refusal by one authority should not be assumed to prove that another approval is also refused. Ask for the exact decision-maker, statutory section, reasons, appeal route and effective deadline.

8. NHI accreditation is not the severed certificate-of-need scheme

The National Health Insurance Act creates a future framework in which eligible healthcare providers and establishments may be accredited and contracted to supply benefits funded by the NHI Fund. Departmental guidance says accreditation is expected to consider professional registration, certification by the Office of Health Standards Compliance and Fund requirements.

As at 20 July 2026, the official government Act page records the NHI Act's commencement as “to be proclaimed”. In February 2026, the Presidency stated that proclamation of sections would be delayed while the Constitutional Court considered public-participation challenges. The status must be checked again immediately before publication or reliance.

Three distinctions prevent a misleading answer:

1. the Constitutional Court's May 2026 certificate-of-need ruling concerned sections 36 to 40 of the National Health Act, not the NHI Act;
2. a future decision about accreditation or contracting with a public fund is not automatically the same as a criminal prohibition on operating a practice; and
3. proposed tools, standards or policy explanations are not present legal duties unless the relevant legislation has commenced and the operative rules support them.

No practice should claim current NHI accreditation, a guaranteed NHI contract or a mandatory NHI location rule on the strength of preparatory guidance alone. A publication legal reviewer must recheck commencement notices, regulations and pending judgments before this article goes live.

9. What to do if an authority demands location approval

Do not respond only with the certificate-of-need judgment. First identify what the authority is actually regulating.

Ask in writing:

• Which person, practice, establishment, service, technology or employment post is affected?
• What Act, regulation, by-law, licence condition, registration category or contract authorises the demand?
• Is the authority deciding professional registration, facility operation, land use, employment, community-service placement, funding or something else?
• Has the relied-on provision commenced, and is it still valid after later judgments or amendments?
• Who made the decision and under what delegation?
• What evidence and criteria were considered?
• What written reasons, internal appeal, objection or review procedure applies?
• Does the decision take effect immediately, and is interim relief needed?

Preserve the original demand, envelope or delivery record, application, supporting documents, inspection notes, correspondence, reasons, delegation and every deadline. The constitutional-rights checklist can help structure the first review without assuming that every dispute is a constitutional case.

If the demand relies specifically on National Health Act sections 36 to 40 after 18 May 2026, obtain urgent advice and place the Constitutional Court order before the authority. If it relies on another law, test that separate source on its own terms.

10. When a court challenge may be appropriate

A location-related decision by a public authority may be reviewable where the decision-maker lacked power, used the wrong legal provision, ignored a binding judgment, acted for an improper purpose, followed an unfair process, relied on irrelevant considerations, failed to consider required information or reached an irrational result.

Not every disagreement justifies immediate constitutional litigation. An internal appeal, statutory objection, professional-regulator process, employment remedy or corrected application may be faster and more appropriate. Court review also has procedural time limits, standing requirements and rules about exhausting internal remedies.

Urgent advice is appropriate where:

• a practice is threatened with closure or criminal enforcement under the severed provisions;
• a community-service or internship deadline may be lost;
• a public employer orders an immediate disputed relocation;
• an application is refused without reasons or under an unidentified law;
• a lease or equipment purchase depends on an uncertain approval;
• patients may lose continuity of essential care; or
• a statutory appeal or review deadline is close.

The constitutional-lawyer directory identifies the practice focus where a public power or legislation must be challenged. A regulatory, employment or commercial specialist may also be required, depending on the actual decision.

Questions to ask a lawyer

1. Is this a professional-registration, placement, employment, facility, land-use, funding or licensing decision?
2. What exact legal provision authorises control over this doctor or site?
3. Has that provision commenced, and has it been amended, suspended or invalidated?
4. Does the 2026 certificate-of-need judgment directly govern this demand?
5. Is the doctor an intern, community-service practitioner, public employee or independently registered practitioner?
6. Which provincial and municipal rules apply to the proposed establishment and services?
7. Are activity-specific permissions needed for medicines, equipment, beds or procedures?
8. Was the decision-maker properly delegated and were relevant criteria applied?
9. Must reasons be requested before an appeal or review is filed?
10. What internal remedy or urgent court relief is available?
11. What deadline applies, and can the existing practice or post continue in the meantime?
12. Has the NHI Act or any relevant regulation commenced since this guide was checked?

Sources used

• Constitutional Court, Solidarity Trade Union and Others v Minister of Health and Others (CCT240/24) [2026] ZACC 19, 18 May 2026.
• Parliament of South Africa, statement noting the Constitutional Court judgment on National Health Act provisions, 18 May 2026.
• National Department of Health, response to the certificate-of-need judgment, May 2026.
• Constitution of the Republic of South Africa, 1996, sections 22 and 27.
• National Health Act 61 of 2003, read with the Constitutional Court's severance order.
• National Department of Health, Internship and Community Service Programme guidance.
• National Department of Health, 2026 midyear medical internship and community-service placement statement, 7 July 2026.
• Health Professions Act 56 of 1974 and community-service regulations.
• Health Professions Council of South Africa, registration overview.
• National Health Insurance Act 20 of 2023 official commencement record.
• Presidency, statement on National Health Insurance Act litigation, 24 February 2026.
• National Department of Health, NHI frequently asked questions and accreditation guidance.

This guide gives general South African legal information. The practitioner's registration category, employment relationship, proposed site, clinical activities, province, municipality, licence conditions and law in force on the decision date must be reviewed. NHI commencement and litigation status require a fresh legal check before publication or action.

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