Ramaphosa shrugs off NHI critics – and that’s one of the biggest legal problems he faces

 ·15 May 2024

President Cyril Ramaphosa is moments away from signing the National Health Insurance (NHI) Bill into law, paving the way for a massive overhaul of healthcare in South Africa.

Despite pushback from businesses, the private healthcare sector, unions, workers, and legal experts, the impending laws have reached the point of no return, with the president making a big song and dance of the signing.

Contrary to the singing of most bills, which get an unceremonious media statement or pass without much fanfare, the president set a date, time and place for the signing of the bill, shrugging off criticism of the bill as the complaints of “well-to-do rich people” and a reflection of “white fear“.

However, the president’s casual disregard for criticisms against the NHI will likely be one of the biggest legal pitfalls of the whole saga.

According to legal expert Neil Kirby, Director and Head of Healthcare and Life Sciences at Werksmans Attorneys, the NHI will face major legal hurdles once signed into 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.

He noted that the Act needs to be seen in the context of three primary problems:

Problem 1: Fairness of the laws

A central theme behind much of the criticism levelled against the NHI is that the laws have been pushed through every step of the process with little to no regard for the feedback given by various stakeholders.

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?”

Problem 2: Rationality of the laws

A second legal hurdle is the question of rationality: is the NHI something that can actually be done?

Over and above the laws being rubber-stamped through parliament, the other huge criticism levelled at the NHI is that it is unaffordable and unimplementable, with both cost and coverage remain a big fat question mark that the government simply cannot answer.

“How much is this going to cost? And can we as a country—whether the cost is R140 billion rand to start with and R700 billion at the end—can we afford it?

“Can we afford to have national health insurance along with other national priorities and policies that are equally as important as healthcare, education, security and infrastructure?”

These are all questions that have been asked of the NHI at every juncture of the process, and the answer has always come back as a resounding ‘No’.

Kirby said that the question of funding and what the NHI will actually cover has not been clarified to date, meaning the South African people “don’t know what, in fact, we’re going to be buying.”

“We have no real idea. We have an inkling that it could be primary health care benefits to start. And we know that maternity benefits as a defined benefit along with emergency care benefits are going to be moved into NHI away from medical schemes, so we have an indication, but there is nothing that you can say ‘thank goodness for the NHI’,” he said.

Problem 3: Constitutionality of the laws

Ultimately, the legal process is likely to go all the way to Constitutional Court—a fight the opposition party, the Democratic Alliance, has committed to—to test whether the NHI will stand the ultimate legal challenge.

Kirby said the Constitution is the supreme law of the country, and the NHI will ultimately have to be tested through the lens of the Constitution.

Parliament’s own legal advisors previously warned that there were Constitutional issues with the laws, and the Department of Health has already stated that Constitutional concerns around individual rights are secondary to the NHI’s purpose.

“The constitutionality of this Act is going to be the argument we’re going to have,” Kirby said.

“There are going to be two sides to that argument. Certain people are going to say absolutely, it’s constitutional. It’s completely constitutional. It solves the problem that so many South Africans face of a lack of healthcare.

“And then you have detractors….who will say ‘no, we think it’s a bridge too far. I think you’ve got too much emphasis in the wrong spots here’.

“We’ve got constitutional friction, and we need to resolve it,” Kirby said.

Bonus problem: The question of choice

Kirby said that another issue to be faced with the NHI is that of South Africans being able to choose where they procure their healthcare – and if they can afford NHI and private healthcare.

“There’s no requirement for anyone to join the NHI. You can choose to do that. South Africans are required to pay for NHI through a mandatory pre-payment system in exchange for which you receive healthcare services as defined free at the point of care for the services.

“However if you don’t join the NHI – are you going to be inclined to pay your medical scheme premium too, which may be too expensive for many people?

“It may very well be that you don’t have a choice: you are going to have to join the NHI because you can’t afford both the NHI mandatory pre-payment and the voluntary medical scheme contribution,” he said.

Read: NHI ‘triple tax’ and the end of medical aids – what you need to know

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