Ramaphosa ordered to give reasons for signing NHI into law

The High Court has ruled that President Cyril Ramaphosa’s signing of the NHI into law is open to review by the courts—and that he must provide the reasoning for his decision to do so.

The ruling comes as a result of legal action brought by the Board of Health Funders (BHF) and the South African Private Practitioners Forum (SAPPF), which questioned the rationality of the president signing the bill into law.

Specifically, the groups questioned the process and legality of the president signing the bill in May 2024, despite the vast dissent and constitutional issues raised during the legislative process.

The applicants wanted the court to grant access to the president’s record of the decision, which they said would reveal whether adequate consideration was given to these concerns before it was signed.

This was to ensure that the president fulfilled his constitutional duties, they said.

The BHF argued that, by not referring the NHI Bill back to Parliament—despite receiving numerous submissions—the President failed to fulfil his constitutional duty under section 79(1) of the Constitution.

Instead, he proceeded to sign the Bill into law in May 2024, setting in motion legislation that the BHF and many others contend is vague, unaffordable, and ultimately unworkable.

The president’s legal team argued that forcing the president to give reasons for signing the bill was infringing on his presidential powers contained in the constitution.

They also argued that the president, in exercising his constitutional powers, is not subject to having them reviewed.

However, the High Court disagreed, saying that the the president’s role in signing or assenting to a law is part of an entire legislative process—not just an exclusive action.

Because of this, it is a step in a process that can be reviewed.

“The President’s decision to assent to and sign the NHI Bill is reviewable because all executive decisions are reviewable under principle of legality or under rule 53.

“Therefore, I hold the view that the President’s decision is reviewable in terms of rule 53 and the President is obliged to produce and file the record of decision as provided for in the rule,” the judge said.

The ruling not only confirmed that the President’s decision to assent to and sign the NHI Bill into law is subject to review in the High Court, but also ordered that the reasoning behind it be presented.

The president is now obligated to provide the full record of the proceedings that led to his decision to sign the Bill into law – in line with Rule 53 of the Uniform Rules of the Court.

The court gave the president 10 days to do so.

The BHF said the ruling was a constitutional victory and affirmed that all public power is subject to the rule of law.

“No office-bearer, including the President, is above judicial scrutiny,” it said.

The BHF said that it believes the records will demonstrate that the president ignored compelling legal and policy objections submitted by multiple parties around the NHI Act.

BusinessTech asked the office of the Presidency for comment on the ruling, but did not receive a response by the time of publication. Comment will be added as soon as received.

The full ruling can be read below: