R74 million NHI showdown in South Africa
The South African government is paying millions of rands in legal fees to meet various legal challenges to the National Health Insurance (NHI) scheme—with a pivotal case being heard next month.
According to Health Minister Aaron Motsoaledi, the state is facing 15 legal cases challenging the NHI, each costing the state between R2 million and R3 million to defend.
“These cases have been going on for more than a year. The money has been paid to six senior counsels, ten junior counsels and attorneys,” he said.
In total, the budgeted costs set aside for the legal challenges in 2026/27 amount to R74 million, he added.
Motsoaledi was responding to a parliamentary Q&A from Freedom Front Plus MP Philip van Staden, who asked what contingencies the Health Department had in place in the event it lost any court cases.
The Health Minister said it was “unclear” what was meant by this, adding only that the department would continue to strengthen activities and preparatory work for the NHI, which has already been budgeted.
The latest 2026 budget allocated around R9.3 billion to the NHI for this purpose.
This includes close to R1.5 billion in direct NHI grants over the next three years, as well as over R7.8 billion in “indirect” NHI funding.
Motsoaledi noted that the High Court has made an order of the court an agreement between various litigating parties and the government to put several legal challenges on hold.
In return, the state would stay the proclamation of all sections of the NHI Act, as well as any implementation of the Act, until the Constitutional Court passed judgment in two cases.
These relate to the public participation processes, which are alleged to have been rushed, rubber-stamped, and disregarded critical inputs from the private healthcare industry.
The cases will be heard between 5 and 7 May 2026, with the Board of Healthcare Funders and the Western Cape Government challenging.
Both parties argue that they were not properly consulted during the NHI Bill’s development and the Act’s assent.
Just the beginning of the NHI’s legal fight
While R74 million has been budgeted to defend the NHI in court, the costs are likely to escalate in the coming years.
Even if the state wins the Constitutional Court fight coming in May, the stay on the remaining court challenges will end, and they will then proceed.
In this case, any adverse ruling against the litigants will likely lead to an appeal and further challenges, leaving the NHI laws under litigation for a long time.
Motsoaledi told the Portfolio Committee on Health in March that this could see the NHI dragged into court for 15 to 20 years.
For context, even without challenges, the rollout of the NHI was seen as a decades-long process, so legal challenges could delay it further.
The Health Department has been trying to get ahead of this eventuality by proposing to the courts that as many legal challenges as possible be rolled into a single umbrella case.
It said that the High Court cases were applications of “unprecedented volume, factual density and constitutional complexity”.
To defend them all separately and at the same time would involve “extensive financial, time and human resources,” the department said.
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.
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.
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