Case CCT 272/23
[2026] ZACC 23
Hearing Date: 15 May 2025
Judgement Date: 03 June 2026
Post Judgment Media Summary
The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.
On On Wednesday, 3 June 2026, the Constitutional Court handed down judgment in an application brought by court-appointed liquidators of CMR Group (Pty) Ltd (CMR), Ms Jacolien Barnard N.O. and Ms Beatrice Linda Mills N.O. The liquidators sought leave to appeal a judgment of the Supreme Court of Appeal which upheld a judgment of the High Court of South Africa, Gauteng Division, Pretoria (High Court), finding that the liquidators were not entitled to appeal a decision of the National Consumer Tribunal (Tribunal) to the High Court under section 148(2)(b) of the National Credit Act 34 of 2005 (NCA), as they did not qualify as “participants at a hearing” within the meaning of section 148(2)(b).
Background
CMR was a registered credit provider and operated a “pawn your car and still drive it” scheme. Under the scheme, consumers borrowed money of up to 50% of the value of their vehicles and registeredthe vehicle into the name of CMR while retaining possession and use through the pawn agreement. Rentals did not reduce the principal debt and if consumers defaulted, they forfeited ownership to CMR. If the consumer paid off the debt, the vehicle would be re-registered in the consumer’s name.
In March 2017, the National Credit Regulator (NCR) investigated the scheme and alleged that it contravened multiple provisions of the NCA. It referred the matter to the Tribunal, seeking, amongst other things, declarations that CMR had contravened the NCA, that CMR repay consumers and that CMR’s registration as a credit provider be cancelled.
CMR opposed the application and filed an answering affidavit, in which it raised various defences. A hearing before the Tribunal was postponed after CMR’s attorneys withdrew and informed the Tribunal that CMR had been voluntarily wound up. The matter was re-enrolled for hearing on 30 July 2019, with notice given to the liquidators. Ms Barnard indicated that she would attend the hearing. However, after mistakenly diarising the date incorrectly, she failed to appear at the hearing. The Tribunal proceeded in the absence of the liquidators and, on 12 August 2019, delivered its judgment against CMR. It ordered that CMR’s registration as a credit provider be cancelled; interdicted CMR from entering into further credit transactions with consumers and from operating as a credit provider; declared the agreements under the scheme as reckless and set them aside with CMR to reimburse consumers with all fees and charges paid; interdicted CMR from proceeding with any civil proceedings against consumers and rescind any judgments obtained against consumers; and ordered that CMR appoint an auditor to determine amounts paid by consumers which were to be reimbursed accordingly.
The liquidators appealed to the High Court in terms of section 148(2)(b) of the NCA, and sought the setting aside of certain remedial orders made by the Tribunal. The High Court held that the liquidators were not entitled to appeal under section 148(2)(b) of the NCA. The High Court held that being a “participant in the hearing before the Tribunal is a jurisdictional requirement for the noting of an appeal in terms of section 148(2)(b) of the NCA”. No reasons were provided for this conclusion.
On appeal, the Supreme Court of Appeal agreed with the High Court, and held that “a participant”, as used in section 148(2)(b) of the NCA, requires physical participation in the hearing, either personally or through a legal representative, and that the consideration of an answering affidavit by the Tribunal did not suffice. The Supreme Court of Appeal also held that a party who did not participate in the sense contemplated by it had a remedy in terms of section 165 of the NCA, which provides for the rescission or variation of orders granted by the Tribunal which are, amongst other things, erroneously sought or granted in the absence of a party. It further held that the liquidators should have applied to rescind the order of the Tribunal under section 165, as opposed to appealing it in terms of section 148(2)(b).
In this Court, the liquidators argued that the matter engaged both the constitutional and general jurisdiction of the Court, as it required, among other things, the interpretation of section 148(2)(b) of the NCA, a provision with significant implications for the public at large. On the merits, they contended that the High Court and Supreme Court of Appeal had adopted an overly narrow interpretation of section 148(2)(b) by equating participation with physical attendance, which violates sections 34 and 166 of the Constitution. They submit that there was participation as the Tribunal considered CMR’s answering affidavit in reaching its decision.
The NCR argued that the matter raised no constitutional issue and concerned only the interpretation of the NCA, which is not a constitutional issue. On the merits, the NCR maintained that filing affidavits did not amount to participation in a hearing and that actual attendance remained necessary. It emphasised that rescission existed precisely to address situations where orders were granted in the absence of parties. It submitted that section 34 of the Constitution did not entitle litigants to select their preferred procedure and that the liquidators merely sought to use appeal proceedings where rescission was the proper route.
The first judgment
The first judgment, penned by Opperman AJ (with Dambuza J and Goosen AJ concurring) held that this Court had constitutional jurisdiction to entertain the matter, as it concerned a dispute of the interpretation of statute where one interpretation may be more constitutionally compliant. In addition, it found that the question of who qualifies as a “participant in a hearing” under section 148(2)(b) constituted an arguable point of law with broader public significance beyond the parties.
The first judgment rejected the Supreme Court of Appeal’s view that a party must be physically present at an oral hearing before the Tribunal to qualify as a participant under section 148(2)(b) of the NCA. It held that other conduct during the proceedings, including filing affidavit evidence that is considered by the Tribunal, may also constitute participation.
The first judgment reasoned that the words “participant” and “hearing” cannot be given a narrow dictionary meaning, but must be interpreted in light of the text, context and purpose of the NCA. It holds that the Tribunal is intended to operate informally, inquisitorially and expeditiously, and requiring physical attendance is inconsistent with this design.
at the oral argument stage, but includes evidence presented as required by the Tribunal (in this instance by way of affidavit) and in the run up to the hearing. A party may therefore be a participant in a hearing through written material if that material is considered and evaluated by the Tribunal a situation akin to an opposed motion in a court of law.
Applying this approach, the first judgment held that CMR had participated in the hearing before the Tribunal as the Tribunal considered CMR’s affidavit and dealt with its submissions in its 18 page reasoned decision. The liquidators’ absence from the oral stage of the proceedings therefore did not mean that they did not participate in the hearing.
It also found that rescission under section 165 was not necessarily the liquidators’ only remedy, as there is nothing in the NCA which suggests that a party does not have a choice of remedy. Furthermore, section 165 requires that, in addition to absence, an order be sought or granted erroneously. In this case, the Tribunal was entitled to proceed without the liquidators being present. As such, the first judgment found that section 165 would not have availed the liquidators.
Since CMR had placed evidence before the Tribunal and the Tribunal adjudicated the matter after considering such evidence, the liquidators could not be treated as if they were not participants. The first judgment therefore found that an appeal under section 148(2)(b) remained competent. It would have granted leave to appeal, upheld the appeal, and remitted the matter to the High Court for consideration of the merits of the appeal.
The second judgment
The second, majority judgment penned by Kollapen J (with Madlanga ADCJ, Majiedt J, Mhlantla J, Rogers J and Theron J concurring) agreed that this Court’s jurisdiction was engaged and leave to appeal should be granted. However, it found that the appeal ought to be dismissed.
The second judgment agreed that the issue at heart of the matter was the proper interpretation to be given to the phrase “participant in a hearing before a full panel of the Tribunal” found in section 148(2)(b) of the NCA. However, the second judgment took the view that the first judgment, by accepting that participation before the Tribunal is not limited to physical participation in a hearing, ignored the basic canons of interpretation laid down by this Court and the carefully structured processes and sequencing in the NCA and how it deals with
hearings. In doing so, it arrived at a strained interpretation of words and phrases which are regularly used and that have acquired a common meaning within the judicial and adjudicative system. Finally, it resulted in a conclusion that largely ignored the meaning and purpose of the enactment.
Unlike the first judgment, the second judgment found that the hearing before the panel of the Tribunal is the most conspicuous and significant part of the dispute resolution process and cannot be considered synonymous with the entirety of the proceedings. In fact, said the second judgment, to remove the Tribunal’s oversight of its hearing proceedings, by allowing participation therein on paper, would negate the active and inquisitorial role of the Tribunal and, thereby, undermine the objects, background and purpose of the NCA. In reaching this decision, the second judgment traced the use of the word “hearing” and “participant” throughout the NCA and its Rules and concluded that the NCA encourages participation in a hearing, as it allows the proper ventilation of the dispute, and does so in part by reserving the right of appeal only to those who have participated in a hearing.
Furthermore, the second judgment considers several unacceptable consequences of the first judgment which negate against accepting its interpretation of the impugned provision.
First, the first judgment would require an appeal court, charged with a matter in terms of section 148(2)(b) of the NCA, to conduct a preliminary enquiry to determine whether a physically absent party was, nevertheless, a participant in a hearing. Indeed, the effect of the first judgment would be that, in every case involving an appeal in terms of section 148(2)(b), a court will have to look to the facts and decide whether a party falls within the meaning of “a participant”. This does not accord with the pronouncement in Telkom that a “statute must apply to all subjects equally and that its interpretation cannot vary from one factual matrix to the next” and would inevitably result in legal uncertainty.
Furthermore, the fact-specific approach that the first judgment contended for is only possible if one reads the wording “participant in a hearing before a full panel of the Tribunal” in the impugned provision as “participant in the proceedings before the Tribunal”. This would not be interpreting but legislating and would effectively substitute the clear language used by the Legislature with something different, removed from what the legislative intent signalled. It also runs the grave risk of offending the principle of the separation of powers. The second judgment concluded that there can be no separate interpretative exercise as to what section 148(2)(b) means in each case.
Second, the stance adopted in the first judgment would render the tribunal hearing hollow but would also allow for the piecemeal adjudication of disputes. A party, much like the first applicant sought to do in the present matter, would be allowed to absent itself from the hearing and then be permitted to ventilate new issues on appeal even when those issues should have been raised before and dealt with by the Tribunal. This is antithetical to the consumer-friendly and participatory adjudication mechanism that the NCA creates.
Third, that the NCA envisages participation in the hearings of the Tribunal before resort to an appeal accords in large measure with the rationale underpinning the principle of subsidiarity. The consequence of the applicants’ argument is that they can file an affidavit, avoid the hearing before the panel and proceed to prosecute an appeal even on issues not traversed in the affidavit. In contrast, the second judgment concludes: a party who absented itself from such a hearing avoided the remedy created by the NCA and must then accept the consequences that come with such absence. Here, it is the exclusion of such a party from appealing the decision of the Tribunal from which it absented itself.
On the specific facts of this matter, the second judgment finds that it cannot be said that there was any form of participation in the hearing by CMR, or its liquidators, such as to make them participants for the purposes of section 148(2)(b). By failing to attend the hearing, it precluded itself from participating therein. It was unable to make or respond to oral submissions, it was not able to put questions to witnesses or challenge evidence it did not agree with, nor could it inspect documents. And importantly, its absence had the effect of preventing the other party from challenging its evidence and the panel of the Tribunal from properly exercising its inquisitorial powers. Furthermore, the first applicant also took no steps, when it discovered that the date it diarised was incorrect, to bring this oversight to the attention of the Tribunal – this at a time when the Tribunal was not functus officio (discharged of its function) as it had not yet delivered its judgment. It may have been possible to seek the re-opening of the hearing it had missed.
In conclusion, the second judgment found that a purposive interpretation of section 148(2)(b), read in conjunction with section 165, indicated that, for reasons of simplicity, expediency and cost-effectiveness, the right of appeal under section 148(2)(b) arises only where a party has participated at the hearing of the dispute – this by being physically present and engaged with the hearing. As such, the second judgment ordered that the appeal be dismissed with each party to pay its own costs in this Court.
The Full judgment here
Case CCT 367/24
[2026] ZACC 22
Hearing Date: 30 SEptember 2025
Judgement Date: 29 May 2026
Post Judgment Media Summary
The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.
On Friday, 29 May 2026, the Constitutional Court handed down judgment in an application for leave to appeal against the judgment and order of the Labour Appeal Court. The application concerns the interpretation of section 189A(7)(b)(ii) of the Labour Relations Act (the Act). The crux of the matter is whether section 189A(7)(b)(ii), read with section 191(11), of the Act gives the Labour Court jurisdiction to adjudicate over unfair dismissals occasioned by operational requirements, without the dispute having to first be referred to the Commission for Conciliation, Mediation and Arbitration (CCMA) or a council, when parties have already undergone a failed facilitation process..
The first applicant is the National Union of Metalworkers of South Africa (NUMSA). The second to seventh applicants are members of NUMSA, namely: Bhekabantu Mjweni, Patrick Ndlovu, Trevor Ntuli, Mbongeleni D Dlamini, Deon van der Byl and Norman Thwala (collectively, together with NUMSA, referred to as the applicants). The respondent is Industrial Oleo Chemical Products, a business of AECI Chemicals and the employer of the NUMSA members.
In early 2020, the respondent retrenched the applicants for operational reasons under section 189A of the Act, resulting in their dismissal in July 2020. The applicants successfully challenged the process on an urgent basis under section 189A(13) and argued that the facilitation meetings had predetermined the dismissals and denied them an opportunity to make representations. They were reinstated and a fresh consultation process was conducted, but they were ultimately dismissed again on 12 November 2020.
Following the applicants’ dismissal, the applicants referred the dispute to the Labour Court in terms of section 189A(7)(b)(ii) of the Act. The respondent then raised a preliminary issue, submitting that the applicants were required to first refer the unfair dismissal dispute to the CCMA or a council before they could approach the Labour Court. Simply put, the respondent contended that the applicants could not bypass the CCMA or a council and directly approach the Labour Court. According to the respondent, this meant that the Labour Court lacked jurisdiction to determine the matter, without conciliation first taking place.
The Labour Court dismissed the respondent’s preliminary point based on, amongst others, its interpretation of section 189A(8) of the Act. According to the Labour Court’s reasoning, the Act does not require that a dispute first be referred for conciliation in the manner that section 189A(8) does, and that it is not necessary to refer a dispute to conciliation once a facilitation process in terms of section 189A of the Act has already taken place. If conciliation was required, so the Labour Court reasoned, the Act would have prescribed that a dispute be referred to the Labour Court in terms of section 191(1) and not in terms of section 191(11) of the Act.
The Labour Appeal Court found differently. It held that a referral to the CCMA is mandatory after the failure of a facilitation process. The Labour Appeal Court found that there is a functional distinction between facilitation and conciliation. It relied on its findings in National Union of Metalworkers of South Africa on behalf of Members v SAA Technical SOC Ltd and held that a “dismissal is… a fresh dispute… from the ‘consultation’ causa”.
In this Court, the applicants submitted that this Court’s jurisdiction is engaged as the issue raises a constitutional matter, as envisaged under section 167(3)(b)(i) of the Constitution, because it concerns the right to fair labour practices under section 23(1) of the Constitution and the right of access to courts under section 34 of the Constitution. It further submitted that this Court’s jurisdiction is engaged because it raises arguable points of law of general public importance, as envisaged under section 167(3)(b)(i) of the Constitution, as the Act’s provisions have been interpreted differently in two previous judgments of the Labour Court. Therefore, this Court was required to provide clarity on the issue
The applicants contended that the issue turns on the interpretation of section 189A(7)(b)(ii) read with section 191(11) of the Act. On the applicants’ interpretation of these two sections, parties to a failed facilitation process do not need to first refer the dispute to conciliation before they can approach the Labour Court.
The respondent conceded that this matter engages this Court’s jurisdiction, but argued that leave to appeal should be refused as the appeal does not enjoy prospects of success. The respondent based this assertion on the fact that the Labour Appeal Court has twice rejected the applicants’ argument and that this Court in National Union of Metalworkers of South Africa v Intervalve (Pty) Ltd endorsed the principle stated by the Labour Appeal Court that conciliation is a precondition to the Labour Court’s jurisdiction. The respondent submitted that section 189A(7) is no exception to this principle.
The respondent argued that facilitation and conciliation are fundamentally different processes. It highlighted differences in the timing of appointment, the facilitator’s role and the nature of the consultation, contending that facilitation does not involve proper consultation. The respondent further argued that facilitation protects the parties’ interests and reduces litigation costs, noting that conciliation is a swift 30-day process, unlike Labour Court adjudication of dismissal disputes.
The applicants conceded that there is a difference between the roles of facilitation and conciliation but maintained that this is not a decisive factor in the present enquiry. They submitted that facilitation, and the engagement entailed by it, should be held to be sufficient in the context of a dismissal post-facilitation.
The first judgment, penned by Tshiqi J (with Kollapen J, Mathopo J, Mhlantla J and Rogers J concurring), found that the matter engages both legs of this Court’s jurisdiction under section 167(3)(b)(i) and (ii) of the Constitution. Consequently, leave to appeal was granted.
Turning to the interpretation of section 189A(7)(b)(ii) of the Act, the first judgment applied the principles of statutory interpretation authoritatively set out in Endumeni and Regenesys. It found that section 189A was introduced to achieve substantive and procedural fairness in large-scale retrenchments, and that section 189A(7)(b)(ii) in particular was aimed at adjudicating disputes at an earlier stage of the process, with urgency.
The first judgment found that facilitation occurs before dismissal during retrenchment consultations, while conciliation takes place after dismissal. It further held that facilitation is pre-emptive and consultative, whereas conciliation is reactive and remedial. In the context of section 189A(7)(b)(ii), the first judgment found that the Legislature specifically referred to “the Labour Court” and cross referenced section 191(11), not section 191(5). It therefore did away with the conciliation requirement in the context of section 189A(7)(b)(ii) proceedings.
For these reasons, the first judgment found that the decision of the Labour Appeal Court must be set aside and the order of the Labour Court reinstated. The first judgment also found that the matter should be remitted to the Labour Court to decide the merits of the applicants’ case.
The second judgment penned by Theron J (with Maya CJ, Majiedt J and Musi AJ concurring), agreed with the first judgment on jurisdiction and the granting of leave to appeal. However, it found that a dispute must first be referred to conciliation before it can be referred to the Labour Court.
The second judgment arrived at this conclusion by finding that section 189A(7)(b)(ii) directs that referral to conciliation must occur pursuant to another provision, namely, section 191(11) of the Act. Examining the text, the second judgment found that the plain meaning of section 189A(7)(b)(ii) contemplates not only a referral to the Labour Court, but also that the referral must occur “in terms of section 191(11)” as a whole. The second judgment further held that the applicants’ interpretation was unsupported by the text because it required the reader to ignore substantial portions of section 191(11), including the reference to section 191(5)(b) and the requirement that the dispute be certified as unresolved, despite there being no referral to conciliation on the applicants’ approach.
Turning to the context of the provision, the second judgment held that the distinction between paragraphs 189A(7)(b)(i) and (ii) is rational because requiring conciliation before a strike would “kneecap” employees essentially serving out their notice periods, whereas the same considerations do not apply to referral of disputes to the Labour Court. The second judgment therefore found that a requirement of a prior referral to conciliation does not render the remedy of a referral to the Labour Court nugatory, as contended by the applicants. It merely adds an antecedent step, and one with a particular purpose.
The second judgment also found that there is a qualitative difference between pre-dismissal facilitation and post-dismissal conciliation. The second judgment concluded that on a proper consideration of the text of section 189A(7)(b)(ii), read in context and having regard to its purpose, the text clearly favours the interpretation that section 189A(7)(b)(ii) requires a referral for conciliation prior to a referral of an unfair dismissal dispute to the Labour Court, a view endorsed by the Labour Appeal Court. The second judgment would have therefore dismissed the appeal.
By a majority, this Court set aside the decision of the Labour Appeal Court and reinstated the order of the Labour Court, remitting the matter to the Labour Court to decide the merits of the case.
On the issue of costs, the majority judgment borrowed from this Court’s decision in Zungu to find that there was no order as to costs.
The Full judgment here
Case CCT 240/24
[2026] ZACC 19
Hearing Date: 09 September 2025
Judgement Date: 18 May 2026
Post Judgment Media Summary
The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.
On 18 May 2026, the Constitutional Court handed down judgment in an application to confirm an order of the High Court of South Africa, Gauteng Division, Pretoria (High Court), declaring sections 36 to 40 (the impugned provisions) of the National Health Act 61 of 2003 (the Act) unconstitutional. The applicants were Solidarity Trade Union, the Alliance of South African Independent Practitioners Association, the South African Private Practitioners Forum and four independent health care practitioners, (collectively referred to as Solidarity), and the Hospital Association of South Africa (HASA). The respondents were the Minister of Health, the President of the Republic of South Africa and the Director General of the National Department of Health. The matter was opposed by the Minister and Director-General.
The impugned provisions created a scheme in which a certificate of need must be obtained to establish, construct, modify, acquire or continue to operate a health establishment or health agency; to acquire prescribed health technology at a health establishment or health agency; or to provide prescribed health services. The Director-General was required to consider 13 factors in deciding whether to grant a certificate of need, such as the equitable distribution of health care resources, and was authorised to withdraw a certificate of need. The impugned provisions empowered the Minister to make regulations relating to the requirements for issuing or renewing a certificate of need. Further, the performance of any act covered by the scheme without a certificate of need would have constituted an offence carrying a penalty of a fine or up to five years’ imprisonment.
In 2024, the High Court held that there was no rational connection between the scheme and its purpose, and that the scheme failed to account for the constitutional rights of owners of private health establishments, service providers and workers. The scheme was also found to be procedurally irrational, as it vested far-reaching powers in the hands of the Director-General and the Minister without adequate statutory safeguards and violated numerous constitutional rights, including movement, trade and property. Accordingly, the scheme was held to be unconstitutional.
In this Court, Solidarity and HASA sought confirmation of the High Court’s declaration of constitutional invalidity in respect of the impugned provisions and an order that such provisions be severed from the Act. They contended that there was no rational connection between the intended purpose and the scheme, nor had it been shown that the scheme will contribute to the progressive realisation of the right to health care. The scheme was said to be procedurally irrational in that it vested broad discretionary powers to grant or renew certificates of need with no adequate safeguards and without needing to consider the rights or interests of those most directly affected. Solidarity and HASA also argued that the scheme infringed the rights to dignity, equality, trade and property, and that these infringements could not satisfy a section 36 limitations analysis.
The respondents argued that the scheme was necessary for the transformation of the health care system and to address spatial apartheid and systemic disparities. In their counter-application, they sought that the declaration of invalidity be refused as the impugned provisions were not operational, and necessary regulations and statutory infrastructure had yet to be finalised. They said the challenge was a speculative and abstract one that should not be considered by this Court. On the merits, the respondents posited that the scheme did not result in procedural unfairness and merely regulated the provision of health services without violating any fundamental rights or falling foul of a section 36 analysis.
The primary issues before the Court were therefore whether the applicants’ challenge was abstract and ought not to have been determined by the Court at that time, and whether the Court should have confirmed the High Court’s declaration of constitutional invalidity.
In a unanimous judgment written by Savage J (with Mlambo DCJ, Kollapen J, Majiedt J, Mathopo J, Mhlantla J, Musi AJ, Theron J and Tshiqi J concurring), the Court confirmed the declaration of constitutional invalidity.
Turning to the issues, the respondents sought condonation for the late filing of their opposition to the confirmation application and their cross-appeal. Though the delay was extensive, the reasons given for the delay were adequate, no prejudice was suffered by the applicants and the interests of justice warranted the granting of condonation. Therefore, condonation was granted.
As the Court is mandated by section 167(5) of the Constitution to confirm any order of constitutional invalidity, the Court had the requisite jurisdiction to determine the application. On the abstract nature of the matter, although the scheme was not yet operative and there were no regulations, this did not prevent the Court from determining the challenge. A genuine dispute existed between the parties that was not premature or hypothetical in nature. The challenge raised concerns as to the inherent constitutional invalidity of the provisions as they appeared facially. Any relief granted would have a direct effect and would settle the issues as they arose for both parties. Therefore, the high threshold required to bring an abstract challenge was met.
Having reached this conclusion, the rationality challenge fell to be determined. Legislation is constitutionally required to be rationally related to a legitimate government purpose. This is a requirement of the principle of legality, arising from the rule of law. It is not however for a court to determine whether a legislative or policy choice is the best or most effective, or to substitute its own view for that of the legislature or executive. The expressed purpose of the impugned provisions to broaden access to health care through an equitable geographic distribution of such services was patently legitimate. It was consistent with the state’s duty to progressively realise the right of access to health services, and recognised the barriers in advancing that right in the face of persistent service delivery challenges and the inequitable geographic distribution of such services.
In issue then was whether a rational connection existed between this legitimate purpose and the means adopted to achieve it. In the absence of regulations defining the scope of the scheme, it was left unclear which health establishments, agencies, technologies or services would be affected by it. The Minister was effectively left with the sole discretion to determine the intended scope of the scheme, a power which was unconstrained and risked being in contrast with what the legislature intended. This, when it is impermissible to use regulations to interpret legislation. The impugned provisions did not establish a comprehensible scheme against which a rational connection existed between the purpose and the means adopted to achieve it. In addition, health care providers would have been left uncertain as to what the law required of them. Nor did the issuance of a certificate of need require the rights and interests of health establishments, agencies or providers to be taken into account. For these reasons, the impugned provisions were irrational.
The Court found it prudent to also address the unjustifiable limitation of the right to trade. A person’s choice of trade, occupation or profession depends on considerations of location, nature, specialty, profitability and financial sustainability. Under the impugned provisions, the Director-General’s decision prevailed over that person’s choice on these fundamental considerations. Some health service providers would have consequently faced the burden of either practising in a place or specialty contrary to their choosing, or risking criminal sanction. This limitation was not justifiable. Robust protection of the right to trade enhances South Africa’s capacity to fulfil other rights, including the right to health care. In this case, the impugned provisions failed to balance the important rights and interests at stake.
For these reasons, the impugned provisions were declared unconstitutional, as they were irrational and unjustifiably limited the right to trade. The impugned provisions were unrelated to the rest of the Act and it was just and equitable that they be severed in their entirety. The High Court’s declaration that the impugned provisions were invalid was confirmed and the cross-appeal was dismissed. In light of the Biowatch principle, the respondents were ordered to pay the applicants’ costs, including those of two counsel.
The Full judgment here