President Cyril Ramaphosa is not obligated to release records tracing the steps he took in approving and signing the National Health Insurance (NHI) Act for interrogation.
Lawyers for the SA Private Practitioners’ Forum (SAPPF) and the Board of Healthcare Funders (BHF) on Tuesday called on the president to release the records, saying he might not have fully considered the objections raised by medical practitioners and the National Treasury before signing the bill.
The two organisations took the president to court, challenging his decision to sign the NHI Bill into law.
The SAPPF and BHF want the president to produce records which detail his steps in approving the NHI Act so as to ascertain whether he followed all legal requirements before signing the contentious bill into law.
They are of the view that the president might not have considered dissenting views filed by private healthcare organisations and a warning from National Treasury.
While arguments before judge Mpostoli Twala on Wednesday were mainly focused on whether the case fell within the jurisdiction of the high court, the issue of the importance of the president’s office furnishing the court with the records took centre stage.
The judge asked the president’s attorney, Anthony Stein SC: “If the matter is reviewable, is the president immune from filing the record?”
Stein said the president’s consideration to produce the records would depend on the level of scrutiny in a review application.
“The president may well be [immune] because it depends on the level of scrutiny that is required,” Stein said.
“He would be in violation of constitutional duty only if he did neither of the two options. He did not assent or sign or refer it back to the national assembly.”
Stein said cases that wish to interrogate whether the president considered dissenting views were infringing on the president’s powers.
He said this was why the president’s legal team argued for the case to be heard in the Constitutional Court because it touched on the constitutional obligations of the president.
The case is centred on Section 79(1) of the constitution, which reads: “The president must refer any concerns about the bill’s constitutionality to the National Assembly for reconsideration.”
Ramaphosa’s legal team has argued the court challenge suggests the president failed to act on his constitutional obligations and thus it should be argued in the Constitutional Court.
The judge reserved judgment.
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