NHI war is just getting started

 ·1 Mar 2024

The National Department of Health has welcomed a victory in a National Health Insurance (NHI)-focused legal challenge this week, after the High Court ruled in its favour in a case brought by union Solidarity.

However, the case in question is relatively minor, and the department will have to gird itself for a slew of bigger cases once the NHI has been signed into law.

In the latest court battle, Solidarity sought to stop the health department from filling and advertising for posts under the NHI.

The trade union approached the court in 2023 to challenge a decision taken by the department to advertise and fill 44 vacancies, including five Chief Directors and competent technical specialists to assist with the preparation of the NHI Fund.

The union argued that the NHI should be established only after the NHI Bill had been signed into law by the President. The crux being that the department should not be allowed to implement a bill that is not yet law.

However, in a ruling this week, the court found that the establishment of the NHI branch as part of the department’s organisational structure does not amount to the implementation of a Bill.

“Thus, the creation of these critical posts responsible for, amongst others; health products procurement, health care benefits and provider management, health system digital information, risk and fraud management, and user and service provider management, are part of broader health system strengthening,” the department said.

“The court ruling paves way for the department to prepare for the rollout of NHI once it is signed into law,” it said.

Just getting started

While Solidarity was disappointed in the ruling, it made it clear that it was not the end of its legal battles against the NHI.

“This verdict does not change the essence of Solidarity’s larger NHI fight, and on all fronts, things are already being prepared for that battle,” it said.

Anton van der Bijl, deputy chief executive and head of legal matters at Solidarity, said the true battle has not even started yet – and this will only follow when the NHI Bill is signed by President Cyril Ramaphosa.

“Although we are disappointed with the verdict, this is merely the opening salvos in our fight for the heart of healthcare in South Africa. The court has made it clear in its verdict that there is indeed a basis for us to launch these types of applications (against the NHI).

“This is only the beginning of the battle regarding the NHI. We will issue our documents as soon as the Bill is undersigned,” he said.

Solidarity is not alone in its plans to challenge the system.

Business groups, healthcare sector organisations and opposition parties have all expressed deep concerns with the bill – while legal advisors, including Parliament’s own legal teams, have warned that the legislation is open to challenge.

While only minor administrative NHI cases have been brought so far, analysts have pointed out that the NHI Bill is likely to be challenged on constitutional grounds once it is law.

Analysts have gone so far as to say that the scheme will be so bogged down with legal challenges that it is effectively dead on arrival and will simply never happen.

Health Minister Joe Phaahla also previously stated that the department expects a “slew of litigations” to challenge the NHI once it has been passed.

The NHI Bill is currently with president Cyril Ramaphosa, waiting to be signed into law. The president has indicated on several occasions – during his State of the Nation Address, in parliament and at political rallies for the ANC – that the signing is imminent.

Once it is law, the government will have free rein to establish an NHI Fund, which will need to be filled, somehow. The NHI got a R1.4 billion budget allocation in the 2024 budget, as part of the wider national health department budget split.

Analysts and market commentators have seen this as an obligatory gesture to acknowledge the scheme, but also a confirmation that National Treasury is not dedicating any real funding to it.

Read: R1.4 billion allocated for NHI – as a sign of ‘commitment’

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