The Constitutional Court will this week hear two high-stakes challenges to the National Health Insurance (NHI) Act that cast the spotlight on how parliament considered public input on the contentious legislation.
It has set aside three days (May 5 to May 7) to hear the applications brought by the Board of Healthcare Funders (BHF), an industry association for medical schemes and administrators, and the Western Cape government.
The outcome has potentially far-reaching consequences. If the applicants are successful, parliament will have to reconsider the contentious legislation. Since the ANC no longer holds an outright majority, this could lead to material changes to the legislation and delay the former governing party’s plan for universal health coverage.
If the applicants fail, a swathe of legal challenges that were paused pending the outcome of this week’s Constitutional Court case will resume. These include attacks on the president’s decision to assent to the legislation, launched by the BHF and the South African Private Practitioners Forum (SAPPF), and challenges to the constitutionality of the legislation from trade union Solidarity, the SAPPF and the South African Medical Association (representing doctors), the Hospital Association of South Africa (representing private hospitals), and the Health Funders Association (representing medical schemes).
The NHI Act sets in motion far-reaching health financing reforms that include a government-controlled NHI Fund that is to be the sole source of financing for health services offered under the scheme. The role of medical schemes will be sharply reduced and limited to providing cover only for services not offered by NHI.
The NHI Bill was submitted to parliament in August 2019 by then health minister Zweli Mkhize. The National Assembly’s portfolio committee on health held public hearings in the provinces, called for written submissions, and conducted oral hearings in parliament. Few material changes were made to the bill, which was submitted to the National Council of Provinces (NCOP) for concurrence in September 2023, leaving it with a very narrow window in which to process it before parliament rose for the general election in May 2024. The NCOP made no changes and passed the bill three months later. It was signed into law by President Cyril Ramaphosa on May 15, two weeks before the election.
The BHF and Western Cape government argue that the public participation process conducted by parliament was so flawed the legislation should be declared unconstitutional and invalid and set aside.
The BHF argues that while the then ANC-dominated parliament conducted numerous public hearings, it was merely going through the motions and did not properly consider the concerns raised by stakeholders. It also contends parliament acted irrationally by passing the bill without understanding its practical implications and ignoring warnings that it was unaffordable.
“Parliament blindly adopted legislation without knowing what the result would look like, how much it would cost, or if it would help or hinder access to healthcare. It left all those questions to others, including unelected officials,” says BHF executive director Katlego Mothudi in court papers.
Parliament’s rebuttal is that it spared no effort in eliciting public input and was under no obligation to agree to the amendments suggested by the BHF or by any other party.
“The fact that the process of engagement is not reflected in a change to the legislation or in the accommodation of the representations submitted to parliament does not necessarily mean that reasonable public participation did not take place or that the views of the public were not considered,” it says in papers.
The Western Cape government argues that the NCOP rubber-stamped the bill and in its haste broke the rules governing the passage of legislation. It says the select committee on social services was unreasonably inflexible when the Western Cape requested extra time, ignored its documents, and did not allow it an opportunity to influence the law-making process. Nor did the committee consider and debate the reports it received from Limpopo and the Northern Cape or the amendments proposed by the North West, says Western Cape health and wellness MEC Mireille Wenger.
“The select committee proceeded to vote on and adopt what is probably one of the most significant and controversial statutes in South Africa’s democratic history. And it did so without considering, debating, or deliberating on any substantive input arising from the public participation processes in the provinces,” she says in papers.
Parliament says it allowed multiple changes to the timetable for considering the NHI Bill and that the Western Cape was only seeking extra time because it had dragged its heels in conducting public hearings. It argues that the NCOP did not have to agree with the Western Cape’s views but consider them in good faith, which it did.
This week’s Constitutional Court case goes beyond the pros and cons of NHI: it goes to the heart of how laws are made in a democracy and the extent to which MPs must consider public input.
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.