By Lehlohonolo Lehana.
The Board of Healthcare Funders (BHF) is challenging the Natioanal Health Insurance (NHI) Act in court, arguing it’s too vague, unconstitutional, and unaffordable.
The NHI Act has been a focal point in the Government of National Unity (NHI) tenure.
President Cyril Ramaphosa signed the NHI Bill in May 2024, bringing it into force as an Act of Parliament.
The BHF claims that, in doing so, he ignored all the well-reasoned arguments made by a range of stakeholders, including business, civil society, and health interest groups.
This includes several representations made by the BHF to the President outlining why the NHI Bill was unconstitutional.
“As there were clear reservations about the constitutionality of the legislation, the President was obligated by law to refer the Bill back to the National Assembly for reconsideration. He did not do this,” it said.
“In the circumstances, the BHF had no choice but to request the High Court to review and set aside the President’s decision to sign the Bill into law.”
This first leg of the proceedings in this court case will focus on two questions of law that have been raised by both the first respondent, Ramaphosa, and the second respondent, the Minister of Health, Aaron Motsoaledi.
These questions were filed via notices that must be decided before the BHF’s main review application may be heard.
The BHF said these notices filed by the President and the Minister are seen as an attempt to stall the progression of its main application to review and set aside the President’s decision to assent to and sign the NHI Bill.
“The notices have been filed in the face of the urgent need to find a resolution on our ailing health system,” it said.
The first part of the President and Minister’s argument, set out in their notices, is that only the Constitutional Court can decide if the President has failed to fulfil a constitutional obligation.
In other words, he questioned whether the High Court has the jurisdiction to make a ruling on the BHF’s review application.
The second part of the President and Minister’s argument concerns whether the President’s assent and signature on a Bill can be reviewed.
If so, it further questions whether the President is obligated to provide the BHF with a full record of the proceedings that led to the decision, including all documents, evidence, and reasons.
“Both these arguments are designed to stall the hearing of the BHF’s main review application,” the organisation said.
“It is also abundantly obvious that the President wants to avoid filing his record of decision on the NHI Bill, which will no doubt show that he ignored several submissions advising him that it was unconstitutional.”
In response to these two notices, the BHF contends that the President’s power in terms of section 79(1) of the Constitution is subject to constitutional controls and is therefore capable of judicial review.
This section is what requires the President to refer the Bill back to the National Assembly for reconsideration if he has any reservations about the constitutionality of the legislation.
In addition, the BHF said the President’s powers and duties to assent to and sign a Bill, read along with section 79 of the Constitution, is a procedural step in a much larger law-making process.
“His decision is required to be solely based on a legal determination and is therefore suitable for review by the High Court,” the organisation said.
“In light of the BHF’s position that the President’s decision to sign the NHI Act into law is subject to judicial review, the President is required to furnish the BHF with a copy of the record of decision.”
The BHF said it remains committed to universal health coverage but firmly believes that it can be achieved through the establishment of a multi-payer model where NHI and medical schemes co-exist.
“We remain committed to working with government to implement solutions that harness the best of both the public and private health sectors to address the healthcare needs of our citizens,” it said.
The BHF’s legal challenge comes after trade union Solidarity dealt the first legal blow to the government’s NHI scheme in 2024.
In July 2024, the Pretoria High Court ruled in favour of Solidarity in its case against the Minister of Health, the President, and the Health Department’s Director-General, declaring sections 36 to 40 of the NHI Act unconstitutional.