Ramaphosa’s slap in the face to business in South Africa: report

President Cyril Ramaphosa reportedly blindsided businesses and business leaders close to him by signing the National Health Insurance into law this week despite giving them strong indications that he would not.

Citing business leaders who work closely with the president to resolve South Africa’s various crises, the Sunday Times reported that consultations with Ramaphosa over the NHI made it clear that businesses had severe issues with the laws in their current form, with leaders under the impression that the president understood this and would address them.

However, the president signed the laws anyway on Wednesday (15 May), leaving businesses slack-jawed as the government moved ahead with its plan to ultimately dismantle private medical insurance and fundamentally restructure the private healthcare industry.

The Sunday Times said the president is now ‘open’ to more talks with the business leaders, which he ignored, even as his cabinet defends the signing.

Businesses ignored

That the government has forced through the NHI while ignoring the pleas of businesses, unions, workers, legal experts, and parliamentary legal advice has been a common criticism against the process for some time.

During national and provincial hearings on the NHI, various stakeholders in the healthcare sector – including medical professionals, hospitals, private businesses and unions representing workers – made presentations and submissions to the government on the pitfalls of the NHI.

All the groups have been explicitly in favour of universal healthcare in principle but have rejected the NHI Bill as the pathway to this ideal for a variety of reasons, from the blatantly apparent lack of funding, uncertainty over coverage, doubts over implementation, and Constitutional concerns around removing private funding as a viable option.

Having raised their concerns every step of the way, their efforts were for nought, with the bill being pushed through National Assembly and the National Council of Provinces with no changes to address these issues.

According to legal expert Neil Kirby, Director and Head of Healthcare and Life Sciences at Werksmans Attorneys, the NHI will face major legal hurdles now that it is law, and one of the biggest themes that will likely be tackled in the courts is whether or not the processing of the laws was fair.

The private healthcare industry and medical aid companies have been at pains to try and work with the government to implement a system that meets the national goal of quality healthcare access to all, that doesn’t also implode a multi-billion-rand industry and send skilled doctors and nurses packing to greener pastures.

However, the message from these sectors has been clear: the laws, as they stand, left them feeling wholly ignored.

“We need to ask if the process has been fair to those involved, and a proper appreciation of the implications for the stakeholders that are interested and affected by this legislation,” Kirby said.

“And in that process, have they been heard, and has what has been said been taken into account when putting this all together?”

The issue of consultation

Business Leadership South Africa CEO Busi Mavuso called the laws “destructive”, saying that it was a clear electioneering ploy as it appears that public consultation ended up being a box-ticking exercise.

“Public consultation cannot just be a matter of procedure but must include proper consideration of the input received, as spelt out in the Promotion of Administrative Justice Act (PAJA). It is hard to believe that there has been proper consideration when draft legislation is finalised without change after a comment period,” she said.

“In this period of heightened electioneering, political campaigns are a distraction to the business of running the country, particularly at a crucial time for us to make progress on the major challenges facing our economy.

“The government is rushing populist policy through parliament, which can only be seen to be an electioneering ploy, as the significant and meaningful public input into the Bill and its socioeconomic ramifications have not been considered.”

However, Constitutional law scholar Pierre de Vos said that this is misleading because the law doesn’t require Parliament to actually adopt any of the arguments made during consultations, only to provide an opportunity to make them.

“PAJA does not apply to the exercise of the executive or legislative function, and because the duty of Parliament to afford the public a reasonable opportunity to participate effectively in the lawmaking process, does not require Parliament to adopt any of the arguments made before it.”

“What is required in cases where important legislation is under consideration is for Parliament to provide a reasonable opportunity for the public to have their say and for it to give due consideration to the views of the public.”

De Vos said that the Constitutional Court is not going to invalidate the NHI Act because the portfolio committee rejected the overwhelming majority of submissions made to it — “as long as there is evidence that it considered the important arguments presented to it, it would have met the requirement to facilitate public participation in the process”.

Despite this, the fairness of the consultations is likely to be used as a basis for some legal challenges to come, among others.

The Department of Health has indicated that it is ready to face these cases, and has actually welcomed them as an opportunity to provide certainty on the laws and highlight gaps in the legislation that can be improved.

Read: Discovery clarifies what the new NHI means for medical aid members in South Africa