A lack of information on the costs and funding of the National Health Insurance (NHI) was a key point of contention yesterday before Constitutional Court justices in a challenge to parliament’s public participation processes.
The NHI Act seeks to establish a single, centralised fund to provide free, universal healthcare for all South African residents. It aims to reduce inequalities by buying services from public and private providers.
The Board of Healthcare Funders (BHF) is challenging parliament’s public participation process in litigation that seeks to have the act, signed into law by President Cyril Ramaphosa in 2024, set aside on procedural grounds.
Advocate Bruce Leech, for the BHF, argued that parliament approved the NHI Bill blindly, without knowing the costs or having details of what the universal health coverage scheme would cover.
Leech argued that without having full knowledge of the financial implications, parliament could not engage “meaningfully” with the public on the important health legislation.
The BHF does not contest the act’s provisions but rather targets the processes followed before Ramaphosa signed it into law. Should the BHF succeed in its application, the NHI Act could be set aside, and parliament directed to amend the defects in public participation.
Leech argued that parliament ignored questions about the costs of implementing the scheme, rendering its adoption of the bill irrational.
Advocate Ngwako Maenetje, for parliament, argued that sufficient information was provided to the public to meaningfully participate in the law-making process.
He argued parliament followed the advice of the World Health Organization (WHO) that it was impossible to estimate the true costs of implementing the scheme because it could take up to ten years to implement and would be subjected to different economic conditions.
Maenetje argued the fact that the overall financial implications were unavailable during the public process does not render the process unlawful because the government provided cost figures and information about funding models of schemes such as taxation.
Justice Dambuza Mayosi asked Maenetje whether cost and funding details were not central to the public participation process.
Maenetje argued that while the government could not give overall figures, in 2022 the health department disclosed that South Africa spends 8.5% of its GDP on health and the objective of the NHI is to spend no more than 8.5% of GDP on it and to reduce administrative overheads.
He argued that the proposal on funding models and that the department disclosed the cost amounts in different phases of the NHI were sufficient to enable the public to participate meaningfully.
Maenetje contended the BHF’s main objection is its view that the government could not afford the universal health coverage scheme, rather than over the public participation process, which was “extensive”.
“We accept that costing and funding are important to this bill. It is correct because it is going to affect funding,” Maenetjie said. “The difference between BHF and parliament and the minister is that they say the form in which the information should have been provided is this [the costs and details of what the scheme will cover].
“On the other side we say we have provided you with the information firstly in relation to the financial implications. We have given something and they say it is not sufficient.”
Maenetje said the government could not provide the overall cost of a process that could take more than ten years to implement.
He contended that information had been provided to the public on NHI funding models, and that the absence of an overall figure could not be used against parliament after following the WHO’s advice.
“If the court accepts that it was reasonable for parliament to accept the WHO advice as we interpret it then you will accept that what parliament did was reasonable.”
Should the court rule that for meaningful public participation, exact figures for NHI funding should have been provided, Maenetje argued, it would be setting the bar much higher than in previous public participation cases.
“If the court decides that the only time that the public could make a meaningful input is if there were exact figures to fund NHI … we will submit that it is setting the bar much higher than any of the cases before today have done.”
The health minister’s legal representative Kameshni Pillay argued that parliament did not rush the consultation process of the NHI Bill but spent almost four years, from August 2019 to June 2023, in processing it and consulting with the public before deciding on the matter.
She said parliament’s public participation process resulted in 35 changes to the NHI Bill.
More than 11,500 people attended public participation meetings and more than 950 oral submissions were presented.
Furthermore, 338,891 written submissions were received from the public, with the majority supporting the implementation of the NHI.
The hearing continues on Wednesday.
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