Critical NHI showdown in South Africa next week
A major legal showdown over the National Health Insurance (NHI) Act will take place next week, as groups challenge the Constitutionality of the public participation process during the drafting of the laws.
The Constitutional Court has set aside a three-day hearing period, from Tuesday, 5 May to Thursday, 7 May, for the challenge.
The case is being brought by the Western Cape Provincial Government and the Board of Healthcare Funders (BHF), challenging the drafting of the Act.
Specifically, whether or not meaningful public participation occurred, and whether or not the provinces were properly represented in the process.
For the Western Cape Provincial Government, the province argues that it was not properly involved in the legislative process.
It said it was denied an extension to complete consultation processes, and the National Council of Provinces (NCOP) approved the Bill without considering its input or proposed amendments.
This ultimately undermined the Constitutional role of the provinces in law-making.
For the BHF, its arguments are similar, but from the side of the private healthcare funding industry, which it argues was also disregarded in the process.
For healthcare funders, the issue digs deeper, however.
The group argues that the laws were drafted and passed without providing the public with critical information about the NHI, such as costs, benefit packages, and coverage.
This effectively renders public participation meaningless, as the public doesn’t know what the NHI scheme will cost them, what services they will receive, or what they will lose.
The BHF has repeatedly flagged that industry inputs in the years, months and weeks leading up to the signing of the Act fell on deaf ears.
This made the process of passing the Bill a “box-ticking exercise”, with lawmakers unwilling to listen to alternatives, rendering the NHI a foregone conclusion regardless of public input.
Both the Western Cape Government and BHF want the NHI Act to be set aside as unconstitutional.
The respondents in the case—President Cyril Ramaphosa, the Health Department and the Speaker of Parliament—will argue against this.
The state representatives maintain that the drafting of the NHI Bill considered thousands of inputs from public consultations, and that passing the bill was motivated by need, not politics or electioneering.
On cost and coverage, the Department of Health will hold its oft-repeated position that it is impossible to cost a decades-long restructuring of healthcare, as costs and services will change over time.
Just the beginning
The ConCourt case next week is a critical hearing that will determine the path forward for the NHI rollout.
Ramaphosa and various other litigants agreed to stay many more legal challenges until this case is finalised, given the implications for these cases if the outcome goes either way.
If the Constitutional Court finds that the public participation processes were flawed, the apex court could set the NHI Act aside and send the entire process back to Parliament.
In this case, lawmakers may find themselves back in a years-long process to redraft the laws, putting the government’s current plans on ice for the foreseeable future.
However, if the court finds the public participation process was acceptable, the government will be able to move forward with its rollout—but not without issues.
The rub for the government is that it is almost a lose-lose situation, as a ruling in its favour will also lift the stay on about 13 other legal challenges pending.
Some of the key challenges are coming from the Board of Healthcare Funders, Solidarity, Sakeliga, AfriForum, the Hospital Association of South Africa, the South African Private Practitioners Forum and the Western Cape Provincial Government.
The various provisions of the Act that are being challenged include:
- The public participation process (at the Constitutional Court);
- The rationality of signing the Act into law;
- Various sections related to private medical aids;
- Sections related to specialist services;
- The overall constitutionality of the Act, particularly in relation to arbitrary deprivation of business, removal of freedom of choice, and limiting access to healthcare.
Attempts have been made to bring the various litigating parties and the government together to settle the matters out of court, but both sides have rejected them.
These cases will make their way through the courts, including appeals and potentially more challenges emerging, and will likely keep the Health Department hamstrung and tied up in litigation for years.
The department told the Portfolio Committee on Health in March that the NHI could be dragged into court for 15 to 20 years.
The government is attempting to roll many of these cases into one.
However, this application is also subject to legal challenge by various litigants, who believe their concerns with the NHI need to be aired individually and in full.
According to the NDOH, the budgeted costs set aside for the legal challenges in 2026/27 amount to R74 million. This number could ramp up the longer the legal saga drags on.
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