Imagine being promised a better health-care future only to discover that the blueprint is blank and the project has no budget. That’s what the National Health Insurance (NHI) Act offers South Africans today.
What should have been a unifying moment in our democratic journey, a shared plan to realise universal health coverage (UHC) has instead become a source of uncertainty, exclusion, and constitutional crisis.
The Board of Healthcare Funders (BHF) has supported the vision of UHC for more than a decade. We still do. But we cannot support a law that threatens to derail it. The NHI Act is unconstitutional, unworkable, and unlikely to deliver the health justice South Africans deserve. That’s why we have taken the unprecedented step of launching two linked legal challenges.
These cases are not about blocking health reform. They are about protecting its integrity and ensuring it is achieved lawfully, sustainably and transparently. The BHF has laid out in detail why the NHI Act, despite its stated intentions, is deeply flawed both in law and design:
- It lacks a credible financial plan. Parliament passed the law without any updated costing, despite estimates ranging between R300–R500bn annually, nearly double the current health budget. No feasibility analysis or updated fiscal impact study accompanied the legislation.
- It delegates core legislative decisions to the executive. The act gives sweeping powers to the minister of health to decide which services will be covered, who can deliver them, and what they will be paid without adequate parliamentary oversight or public accountability.
- It is structurally vague. Key terms are undefined, regulations are missing, and the so-called “basket of services” remains unspecified. This uncertainty hampers implementation and creates confusion for patients, providers, and funders alike.
- It risks regression in health outcomes. Instead of building on existing public-private collaboration, the Act imposes a one-size-fits-all system that may reduce, not expand, access to care, particularly in underserved areas where private providers currently fill critical gaps.
- It undermines constitutional rights and eliminates choice. Section 33 prohibits medical schemes from offering services covered by the NHI, effectively outlawing private alternatives for core care. This erodes the right to freedom of association and healthcare choice and may violate Section 27(2) of the constitution by narrowing rather than progressively expanding access to care.
The BHF made detailed submissions during the public participation process ,and wrote directly to the president, warning of the bill’s constitutional shortcomings. We offered constructive proposals to help realise UHC through a balanced, constitutionally sound framework. These were ignored.
It was only after these efforts failed that we turned to the courts.
Our first legal challenge seeks to review the president’s decision to sign the bill into law. Section 79(1) of the constitution requires the president to refer a bill back to parliament if there are serious reservations about its constitutionality. He did not. In May, the high court ruled that this decision is reviewable, reaffirming that no public official is above constitutional scrutiny.
Our second phase application, now before the Constitutional Court, challenges parliament’s failure to ensure meaningful public participation, as required by Sections 59 and 72. Public hearings were rushed, poorly managed, and procedurally hollow. No material changes were made to the vill, despite overwhelming input.
These two cases are interlinked. Together, they reveal a failure of two key constitutional guardians, parliament and the Presidency, to respond to public concerns, act transparently, and place the health and wellbeing of citizens above political expediency.
The BHF believes it is not only the right, but the public duty, of civil society to hold government accountable when such failures occur. Our legal challenges are intended to uphold, not undermine, the values of a free, fair, and functioning democracy.
We know that reform is necessary. Millions of South Africans remain excluded from quality health care. But we believe that a viable NHI must emerge from genuine collaboration between the public and private sectors, not at the expense of one or the other.
The BHF remains committed to working with government and all stakeholders to co-create a sustainable, inclusive, and constitutionally sound health-care system. One that meets the needs of all citizens and preserves their rights to choice, quality, and dignity.
Health reform cannot come at the cost of constitutional integrity. If we lose the foundations of good governance, even the best intentions will fail.
• Mothudi is MD of the Board of Healthcare Funders
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