Health minister Aaron Motsoaledi has launched a broadside against the parties litigating against the National Health Insurance (NHI) Act, asking the court to consolidate their cases and suspend all challenges to the constitutional validity of the legislation until the legal attacks on the president’s decision to sign it have been resolved.
The act aims to breathe life into the ANC’s vision for universal health coverage, in which a central NHI fund will purchase services for all eligible patients. It aims to reform SA’s health system, in which most of the population rely on public services of uneven quality while wealthier medical scheme members can obtain generally better-quality care in the private sector.
The act was signed into law by President Cyril Ramaphosa in May 2024 but has yet to be brought into effect. It faces six separate legal challenges from trade union Solidarity; the Board of Healthcare Funders (BHF) and the Health Funders Association (HFA), which represent medical schemes; the Hospital Association of SA (Hasa), representing private hospitals; and the SA Medical Association (Sama) and SA Private Practitioners Forum (SAPPF), which represent doctors and specialists.
The BHF and SAPPF secured an initial victory in May with a judgment from the high court in Pretoria affirming it had jurisdiction to hear their legal challenges and ordering Ramaphosa to furnish the record of his decision to assent to the contentious legislation. The president then appealed to the Constitutional Court to overturn the judgment.
The health minister has now filed an application in the high court seeking to stay all legal proceedings that challenge the constitutionality of the act until the president’s appeal to the Constitutional Court is resolved.
This affects the cases brought by Solidarity, Hasa, Sama, the HFA, and SAPPF, according to papers filed by health deputy director-general Nicholas Crisp.
As a sweetener, the minister has offered to suspend implementation of section 33 of the act while proceedings are stayed. The section contains provisions that sharply reduce the role of medical schemes, limiting them to only offering cover for services that are not provided by NHI.
The HFA, Hasa, SAPPF and Solidarity have opposed the minister’s stay application, while Sama said it would abide by the court’s decision.
HFA CEO Thoneshan Naidoo said the minister’s offer not to implement section 33 was a hollow gesture, as he had previously said in court papers that it would take 10-15 years to implement NHI.
“He’s offering something he knows could not be implemented,” Naidoo said.
Staying legal proceedings challenging the constitutionality of the act would allow the minister to press ahead with NHI and do irreparable harm to SA, Naidoo said, citing research from Genesis Analytics submitted with HFA’s court papers. Genesis concluded NHI would cost more than R900bn a year — R410bn more than SA’s total health expenditure — and require raising taxes to unfeasible levels.
The health department said consolidating the cases would be more efficient and save money. “We believe it will be a waste of the court’s time and taxpayers’ money to try to deal with the same matter in different courts,” health department spokesperson Foster Mohale said.
“The risk is different courts may arrive at different conclusions on the same matter, that would then have to be appealed. Thus it is in everyone’s interest to have all the cases consolidated and heard before one court,” he said.
Solidarity spokesperson Anton van der Bijl said: “While the government wants to stay the litigation process ... to curb litigation costs, they do not want to stay the act’s implementation and are therefore willing to waste [hundreds of] millions [of rand] of taxpayers’ [money]. This is ridiculous. We either go on with the [entire] litigation process, or stay the legal process and the total implementation of the act.”
The HFA, Hasa, and Solidarity have opposed the consolidation application. Sama and SAPPF said they would abide by the court’s decision.
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