Constitutional Court defers case over Ramaphosa’s NHI Act assent

The Constitutional Court has thrown a curveball at the organisations attacking President Cyril Ramaphosa’s assent to the National Health Insurance (NHI) Act, saying it first wants to hear from those challenging parliament’s public participation process on the contentious legislation.

The development shifts the spotlight away from whether Ramaphosa made a rational decision in signing the NHI Act almost two years ago, to the extent to which MPs considered input from stakeholders when they processed the law.

NHI is the ANC’s policy for universal health coverage that proposes sweeping reforms to South Africa’s health system. It envisages a government-controlled fund that will purchase services from public and private healthcare providers for all eligible patients, with a sharply reduced role for medical schemes. The NHI Act is the first piece of enabling legislation for the policy, but has yet to come into effect.

Eight organisations have launched legal action against the act since it was signed into law in May 2024, in a series of increasingly complex and costly cases.

The Constitutional Court was originally planning to hear an appeal from the president and health minister Aaron Motsoaledi on February 26 that seeks to overturn a Pretoria high court judgment upholding challenges brought by the Board of Healthcare Funders (BHF), representing medical schemes and the South African Private Practitioners Forum (SAPPF), representing specialists. In May last year, judge Mpostoli Twala ruled that the president’s decision to sign the NHI Act was reviewable and ordered him to furnish the record of his decision. That ruling was suspended, pending the outcome of the appeal.

The Constitutional Court also has two cases before it that challenge parliament’s public participation process on the NHI bill, brought separately by the BHF and the Western Cape government.

Moot point

Earlier this month the Constitutional Court wrote to all the parties involved, saying the challenge to the president’s assent to the bill would become moot if the public participation challenge succeeded. It asked for input and then issued a directive this week, striking the assent matter from the court roll pending the outcome of the public participation challenge, which it set down for May 5-7.

Western Cape health and wellness MEC Mireille Wenger welcomed the Constitutional Court’s decision.

“Our position is that the National Council of Provinces failed to meet its constitutional obligation to facilitate meaningful public participation when it considered the NHI Bill. The views of residents of the Western Cape and the implications for provincial health services were not adequately considered, even though the act fundamentally reshapes healthcare delivery and directly affects a constitutionally protected right [to healthcare],” she said.

Charlton Murove, BHF head of research, said the board responded to the Constitutional Court’s letter earlier this month, opposing its plan to strike the presidential assent cases from the roll. The BHF had hoped its case would be dealt with expeditiously, he said, as no litigants want delays, which might lead to increased costs.

SAPPF CEO Simon Strachan said the potential mootness of its attack as a result of the public participation challenge is speculative, and the SAPPF has raised independent constitutional questions that warrant scrutiny.

The SAPPF also objected to its case being taken off the roll when asked for input by the Constitutional Court earlier this month, arguing that further delays to its case are not in the interests of justice. It launched its challenge to the NHI Act more than 16 months ago.

Update: February 11 2026

This story has been edited to clarify that the BHF and SAPPF wrote to the Constitutional Court objecting to its proposal to defer the presidential assent matter before it issued its final directive this week.