By Lehlohonolo Lehana.
The Constitutional Court of South Africa has reserved judgement in the critical legal challenge against the National Health Insurance (NHI) Act.
The case is brought by the Board of Healthcare Funders (BHF) and Western Cape Provincial Government, challenging the drafting of the Act.
The provisions of the Act that are being challenged include:
- The public participation process.
- 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
The BHF is a nonprofit organisation that represents 65 medical aid schemes, administrators and managed care organisations. The schemes represent 4.5 million beneficiaries.
The BHF’s case listed the Speaker of the National Assembly, Ramaphosa and Health Minister Dr Aaron Motsoaledi as respondents.
The NHI Act outlines a significant overhaul of South Africa’s health system by providing universal healthcare to citizens. It aims to pool the resources of private and public healthcare providers, an issue that has caused significant concern within the private healthcare community.
While the BHF said it is not opposed to the idea of universal healthcare, it argued in court that Parliament didn’t consider the many objections and concerns raised by stakeholders such as itself during the course of the public participation process.
Advocate Bruce Leech SC, representing the BHF, argued the public participation process had not been “meaningful”.
“The right to speak and to be listened to is part of the right to be a citizen. This is a case about constitutional rights and dignity and the right to be heard,” he said.
Leech said that Parliament had admitted to receiving “thousands” of submissions from people and organisations raising concerns or requesting additional information. The concerns included how the NHI would be funded.
Members of the Bench engaged with Leech, questioning whether the case should have first been heard in a lower court before coming to the Constitutional Court. The court also questioned whether the absence of a record of deliberation on issues raised was enough to fault the entire process.
Leech submitted that the process did not need to restart from the beginning, but should return to the parliamentary stage, where Parliament could deal with the critical questions that had not been answered.
Justice Steven Majiedt noted that the NHI funding model was a “pertinent issue” and that several organisations had raised concerns, including The Alliance of Independent Practitioners Association, Discovery Health, Medscheme and the SA Clothing and Workers Union.
Advocate Ngwako Maenetje SC, representing Parliament, said more than 330,000 written comments were received by the National Assembly (NA); the National Council of Provinces (NCOP) received more than 23,400 comments.
“Both the NA and NCOP conducted extensive in-person hearings in each of the nine provinces. In the NA process alone, the hearings were attended by more than 11,000 members of the public and all of the hearings were streamed so that South Africans in all parts of the Republic could understand the issues arising from the Bill and the concerns expressed by members of the public,” said Maenetje.
He said members of Parliament engaged the BHF on some of its suggestions for the NHI.
Maenetje argued that one of the main issues raised by the BHF was the funding of the NHI model. The organisation had wanted clarity on how the model would work.
Judges have raised sharp concerns regarding corruption and inefficiency within the public health system.
The court questioned whether the government has adequately addressed these systemic risks before implementing the new legislation.
Advocate Kameshni Pillay SC, representing the Minister of Health in the proceedings, said that in making its ruling, the court should consider the “uncontrolled commercialism of healthcare”. She pointed to inequalities in the “two-tier” health system and growing costs for private healthcare.
“The most reliable source of healthcare funding is medical schemes and hospital cash plans. However, to ensure their sustainability, many schemes resort to increasing premiums, making them more and more unaffordable to ordinary South Africans.
The Western Cape government said there were no reports transmitted from Gauteng and the Western Cape provinces to the select committee, which runs the public participation process.
Advocate Geoff Budlender said the Gauteng NCOP representative did not file an affidavit confirming attending all the committee’s meetings, adding that there are no records that refer to the province’s hearings.
He said it seemed there were no hearings in Gauteng.
Budlender further argued that its request for an extension was rejected by the select committee as MPs pushed to finalise the legislation before the end of that year.
One of the Justices directly questioned parliament’s legal representative, Advocate Maenetje, on whether the process had been unnecessarily hurried.
In response, Maenetje argued that determining whether there was a “rush” requires examining the timetable’s consequences rather than the schedule alone.
“If the consequence was that the public were not able to have proper meetings, they had short notices, and they didn’t have enough time, and they were not able to express their views properly, then that is a [rushed] process.”
“So the timetable itself must have the consequence of prejudicing the provincial public participation process,” he said.
Maenetje maintained that such consequences were not evident in the current case.
He also addressed concerns raised about Gauteng’s public participation report, which was not submitted or considered by the NCOP, according to the Western Cape government.
“The Gauteng [government] doesn’t say if the time was longer, we would have produced a report.”
“They just did not do their work in compiling a report. But when you look at it through the lens of the Western Cape, it is not unreasonable.”
“And we submit with great respect, it is the conduct of the Western Cape that put it in the position in which it ultimately found itself.”
The NHI legislation had been several years in the making, having first been tabled in parliament in 2019.
The National Assembly passed the bill in June 2023, with the NCOP later giving its approval in December of the same year.
Ramaphosa formally enacted the law in May 2024. He has agreed to delay the proclamation of key sections of the NHI Act until the Constitutional Court hands down its judgment.
The applicants are asking ConCourt to declare the Act invalid and to send it back to Parliament for reconsideration. Meanwhile, at least 15 other legal challenges opposing the act are on hold, pending the outcome of the Apex Court.