Call for calm as Ramaphosa gets ready to step into a massive legal minefield

 ·14 May 2024

Momentum Metropolitan Health chief medical officer Damian McHugh has urged South Africa medical aid users not to panic and to continue with their current healthcare arrangements despite President Cyril Ramaphosa’s intent to sign the National Health Insurance (NHI) Bill into law on Wednesday (15 May).

McHugh said that, even though the president is expected to sign the laws, the current status quo in South Africa will remain in effect as implementing the laws will take time.

In addition to this, various legal challenges already confirmed to be coming will likely push this out even further.

Union Solidarity, business group BUSA, healthcare professional representatives SAHPC and the Democratic Alliance have all given notice of legal challenges to immediately follow the signing of the laws on Wednesday.

The DA said it would take the battle all the way to the Constitutional Court.

“Our message to our members and the wider South African community is to continue with your current healthcare arrangements,” McHugh said.

Echoing the sentiment that has been expressed by various critics of the NHI Bill, McHugh said that access to healthcare is a fundamental right for all and that enabling that access is positive.

However, “the implementation of the NHI bill in its current format is not sustainable, and we expect the already documented challenges made by numerous stakeholders to become more vocal, particularly around the constitutionality of the bill”.

In addition to the waiting legal challenges, McHugh said that the South African economy does not have the required funds to support the implementation of the NHI, which is a fundamental aspect of the rollout.

Until such time as the country can actually afford the government’s lofty promises, not much can change.

According to the NHI Bill itself, the government is pursuing a tight rollout of the scheme, with implementation of the the laws expected to run from 2023 to 2028.

The first implementation phase of the NHI is supposed to run from 2023 to 2026, during which time the NHI Fund will be established, and other groundwork will be completed.

The second phase—which would see the “mobilisation of resources” (ie tax hikes) and “the establishment and operationalisation of the (NHI) Fund as a purchaser of health care services through a system of mandatory prepayment”—would run from 2026 to 2028.

However, analysts have described these timelines as being beyond the realm of possibility.

Following Ramaphosa’s infamous “finding a pen” quip during his State of the Nation Address in February, Stuart Theobald, Executive Chairman of Krutham (formerly Intellidex) described the laws as “a pantomime…totally unfundable and will never happen“.

“As it is…(the NHI) is going to immediately face a wall of litigation on its constitutionality,” he said.

Business Leadership South Africa chief executive, Busi Mavuso, called the impending laws “destructive”, echoing the sentiment that it will fall flat when the politics meets reality.

“The law will never work, simply because there is no capacity to implement it, and as soon as it is signed, it will be embroiled in litigation on several fronts, including its constitutionality,” she said.

Read: South Africa’s NHI disaster waiting to happen

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