The disclosure of President Cyril Ramaphosa’s records to trace his steps in approving the National Health Insurance (NHI) Act could clarify whether he followed all legal requirements before signing the contentious bill into law, the Board of Healthcare Funders (BHF) said on Tuesday.
The NHI Act has been a focal point in the government of national unity tenure. The DA has been pushing against the implementation of the act while the ANC’s tripartite alliance partners, SACP and Cosatu, have formed a guard to ensure the act is implemented. NHI aims to achieve universal health coverage for all South Africans.
Its opponents argue the act is both premature and unconstitutional in that it restricts freedoms related to healthcare access and lacks clear assurances for medical professionals about their future roles.
In its submission to the high court in Pretoria, the board queried whether the president properly applied his mind before appending his signature to the bill.
BHF represents the interests of more than 40 medical schemes and administrators covering 4.5-million beneficiaries in SA.
Ramaphosa signed the NHI Act into law on May 15 2024, which caused a stir weeks before the 2024 general election. The act has since been contested by companies providing private healthcare services, as well as analysts and opposition political parties.
In its court papers, the BHF questioned whether the president considered dissenting views or simply ignored these before signing the bill.
Section 79(1) of the constitution reads: “The president must refer any concerns about the bill’s constitutionality to the National Assembly for reconsideration.”
BHF is of the view the matter should have been further deliberated in parliament before it was signed into law.
“The BHF and many other industry stakeholders advised the president that the NHI Bill was unconstitutional for multiple reasons and requested the president to remit the matter back to the National Assembly for reconsideration,” its court papers said.
This is the main reason the BHF wants Ramaphosa’s full records to be disclosed in court to trace his steps before signing the bill.
Crucially, the record should clarify why, despite receiving these submissions, the president still assented to and signed the bill, explaining his disagreement with the concerns raised.
— court papers
The board said Ramaphosa’s records will provide evidence whether the president considered stakeholders’ views.
“The record is expected to reveal the submissions received by the president (including by government departments), which advised that the NHI Bill was unconstitutional, at least in part. It will show how the president handled these submissions,” BHF court papers read.
“Crucially, the record should clarify why, despite receiving these submissions, the president still assented to and signed the bill, explaining his disagreement with the concerns raised.”
The president’s legal team argued the case at heart was a constitutional case and should be heard by the apex court and not the high court.
It pinned its argument on section 167 (4) (e) of the constitution which stipulates that only the Constitutional Court may “decide that parliament or the president has failed to fulfil a constitutional obligation”.
The BHF opposed this view saying, “The president’s stance is wrong”.
“The high court has jurisdiction. The Constitutional Court has deemed it unnecessary to define what constitutes a ‘fail[ure] to fulfil a constitutional obligation’ under section 167(4)(e) of the constitution, as the scope of its exclusive jurisdiction may depend on the specific facts and nature of the challenge,” BHF said.
BHF contends its case against the president should be heard in the high court.
“In BHF’s review of the president’s decision to assent to and sign the NHI Bill into law, the court is called upon to adjudicate the legality and rationality of the president’s decision (whether the president took all of the necessary steps in terms of section 79(1)). The court is not called upon to determine the constitutionality of the NHI Bill.”
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