The Western Cape government has lodged an application in the Constitutional Court seeking to have the National Health Insurance (NHI) Act declared unconstitutional.
It said parliament failed to meet its constitutional obligation to facilitate public involvement in the legislative process.
Filed on Monday, the application invoked section 167 of the constitution, which grants the court exclusive jurisdiction to determine whether parliament has failed to fulfil a constitutional duty.
The challenge is directed at the chair of the National Council of Provinces (NCOP), the speaker of the National Assembly, the speakers of all nine provincial legislatures and the health minister.
The dispute centres on the NCOP’s handling of the NHI Bill during the latter half of 2023. The Western Cape contends that the NCOP adopted the bill without ensuring that all provinces had completed and transmitted reports on their public participation processes, and without allowing adequate time for deliberation on the input received.
According to its founding affidavit, six provinces submitted negotiating mandates without accompanying participation reports, while the Western Cape’s own mandate and report were not considered before the NCOP voted.
Requests from the Western Cape provincial parliament for extended time frames to complete hearings and analyses were refused, it said.
Premier Alan Winde said the province was standing up for the right of every South African to “have a meaningful voice” in how laws are made. Health MEC Mireille Wenger described NHI as “one of the most significant and controversial statutes in SA democratic history”. She said the NCOP process was rushed and lacked substantive public input.
The NHI Act, which is not yet in force, establishes a centralised NHI fund as the single purchaser of health services, restructures procurement and accreditation functions, and limits medical schemes to complementary cover once the system is fully implemented.
Its fiscal model relies on general tax revenue, payroll taxes and income tax surcharges, with implications for provincial health functions and budgets.
The application draws on Constitutional Court precedent, including the Land Access Movement of SA judgments, which held that the NCOP must have access to and consider provincial public participation reports before voting.
It also referenced NCOP rules requiring a minimum eight‑week period for provincial processes, extendable where necessary. The Western Cape argues that the compressed timetable and absence of complete records undermined the NCOP’s ability to discharge its duty under section 72 of the constitution to facilitate public involvement.
The Western Cape’s application is one of seven legal challenges under way against the NHI Act.
The Board of Healthcare Funders has filed in the Constitutional Court, citing inadequate public participation and unconstitutional delegation of powers. The SA Medical Association has approached the North Gauteng High Court, challenging provisions on practitioner registration, facility restrictions and the centralised complaints process. The Hospital Association of SA and the SA Private Practitioners Forum have each filed in the high court, raising concerns about service delivery constraints, practitioner autonomy and fiscal viability.
Solidarity has launched proceedings contesting the act’s economic feasibility and its implications for taxpayers and healthcare professionals. Sakeliga has filed in the Pretoria high court, arguing that the act’s centralisation and limitations on private medical schemes render it fiscally and constitutionally untenable.
Collectively, these cases reflect widespread procedural and substantive concerns about the NHI’s legislative process and operational framework.
Would you like to comment on this article?
Sign up (it's quick and free) or sign in now.
Please read our Comment Policy before commenting.