The Board of Healthcare Funders (BHF) has launched a fresh legal bid to overturn the National Health Insurance (NHI) Act, asking the Constitutional Court to declare the legislation unlawful and invalid on the grounds that parliament failed to conduct a proper public consultation process.
NHI is the ANC’s plan for universal health coverage and envisages a single, government-controlled healthcare system that will provide services that are free at the point of delivery to all eligible patients. The NHI Act was signed into law by President Cyril Ramaphosa in May 2024, but has yet to be brought into effect.
The BHF, one of SA’s two key medical scheme industry associations, has already challenged the NHI Act in the high court in Pretoria. In that matter, it challenged Ramaphosa’s decision to assent to the act.
Now it has turned its sights on parliament, contending that MPs failed to meet their constitutional obligation to ensure meaningful public participation, because they made no material changes to the legislation despite extensive input from a wide range of stakeholders, including the BHF.
It argues that both houses of parliament conducted a “tick-box” exercise, using their ANC majority at the time to muscle through deeply flawed legislation.
Critical issues raised during the public participation process, including details about the healthcare benefits NHI would cover, what the scheme would cost, and how it would be financed, were not resolved. Nor did parliament seek to clarify the future role of medical schemes and provincial health departments, the BHF says in its Constitutional Court application, filed earlier in August. The adoption of the bill was therefore irrational, it says.
“Parliament enacted a law without any reasonable understanding — by itself or anyone else — of how it would function in practice or achieve the improved healthcare access it claims to provide, deferring all crucial mechanisms to be decided by others at some future date,” BHF MD Katlego Mothudi says in court papers.
Parliament’s failure to interrogate the financial implications of NHI was irrational and in effect gives the scheme a blank cheque, he says.
The NHI Bill was introduced to parliament in August 2019 and was passed by the National Assembly in June 2023. The National Council of Provinces (NCOP) approved the bill in December 2023, and the president assented to it six months later on the eve of the general election.
It was passed despite warnings that the scale of the tax increases required to fund NHI was unfeasible, and without updating the financial modelling conducted for the NHI green paper in 2010, Mothudi says.
Out of date
“That data and the conclusions and assumptions drawn from it were, by 2023, hopelessly out of date, having been eclipsed by the years of state capture, the pernicious effects on the economy of load-shedding, the general downturn in the SA economy, and the effects of the Covid-19 pandemic and associated lockdown,” he says.
The BHF cites 24 respondents, including the speaker of the National Assembly, the NCOP chairperson, the president, the health and finance ministers, the health director-general, the speaker of each provincial legislature and all nine health MECs.
It argues that both houses of parliament failed to properly consider public submissions, and that their adoption of the bill was irrational because they did not know what services NHI would cover or what it would cost.
Parliament’s spokesperson, Moloto Mothapo, said parliament was considering its options.
The BHF’s Constitutional Court challenge to parliament’s public participation process is not affected by the minister’s “stay and consolidation” application against five other parties that have attacked the NHI Act in the high court in Pretoria.
These include trade union Solidarity, the Health Funders Association (representing medical schemes), the Hospital Association of SA (representing private hospitals), and the SA Medical Association and SA Private Practitioners Forum, which represent doctors and specialists.
The minister has asked the high court in Pretoria 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.
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