South Africa’s National Health Insurance (NHI) Act is one of the most far-reaching reforms proposed since the advent of democracy. Its ambition — to deliver universal health coverage — is both necessary and widely supported.
However, reforms of this scale do not succeed on ambition alone. They depend on process, legitimacy and public trust — standards that were not met in the passage of the act through parliament, leaving the Board of Healthcare Funders (BHF) with no reasonable alternative but to approach the Constitutional Court.
The case before the court next week is not about whether universal health coverage is needed, which the BHF fully supports as a national imperative. It is about whether the process that led to the passing of the NHI Act met the constitutional standard required in a democratic society. At the centre of this challenge is a simple but fundamental principle: meaningful public participation.
Sections 59 and 72 of the constitution require parliament to facilitate public involvement in the legislative process. This is not a procedural formality. It is a constitutional safeguard designed to ensure that legislation reflects the voices, concerns and lived realities of the people it will affect.
In the case of the NHI Bill, parliament received an unprecedented volume of public submissions, reflecting the scale of public interest and concern around some of the proposed reforms in the draft legislation. These inputs, developed over more than a decade of policy debate since the introduction of the NHI Green Paper in 2011, raised substantive questions about feasibility, affordability and implementation.
They were not minor technical objections. They went to the heart of whether the legislation in its current form is constitutionally sound and practically implementable. Concerns were raised about the absence of a clear funding model, the lack of detail on benefits, and the extent to which key policy decisions are deferred to future regulations. Questions were also raised about the concentration of decision-making power and the potential impact on existing access to healthcare.
Key elements were not resolved during the legislative process but deferred to future regulations. Without access to critical information, meaningful participation was not possible. The public was in effect asked to comment on a proposal whose most basic features remained undefined.
Yet despite the breadth and depth of these submissions, there is little indication that they were meaningfully reflected in the final legislation. The concern is not simply that parliament heard these views, but that it did not adequately engage with them. The Constitutional Court has made it clear in the past that public participation must be meaningful, not symbolic. The question now is whether that standard was met.
Key elements were not resolved during the legislative process but deferred to future regulations. Without access to critical information, meaningful participation was not possible. The public was in effect asked to comment on a proposal whose most basic features remained undefined.
This distinction matters. Public participation is not only about being given the opportunity to be heard. It is about whether that input has the potential to influence outcomes. Where legislation has far-reaching implications for access to healthcare, institutional design and the allocation of resources, the quality of that engagement becomes critical.
Meaningful engagement requires more than written submissions and public hearings. It requires responsiveness, a willingness to interrogate assumptions and, where necessary, to adapt the legislation. In complex reforms such as the NHI, this includes providing the public with enough information about the proposed reforms, testing whether the model is affordable, whether it is implementable, and whether it will strengthen or weaken the health system in practice.
Without this, participation risks becoming a procedural exercise rather than a mechanism for improving policy. The consequences of a flawed process extend beyond legal technicalities. They affect the credibility and durability of the reform itself. Legislation that is not properly tested through public engagement is more likely to face implementation challenges, legal uncertainty and declining public confidence over time.
The BHF’s application to the Constitutional Court is grounded in the belief that the legislative process did not meet the required constitutional standard. It is a request for the court to determine whether parliament fulfilled its obligation to facilitate meaningful public participation in the development of the NHI Act.
This is not an attempt to delay reform. It is a necessary step to ensure that reform is built on a constitutionally sound and sustainable foundation. In a constitutional democracy, major policy shifts must be assessed not only in terms of their objectives, but also in terms of how they are developed and adopted. The legitimacy of legislation depends as much on process as it does on purpose.
This is particularly true in healthcare. The NHI Act proposes a fundamental restructuring of how healthcare is financed and governed in South Africa, with implications for both the public and private sectors, and for all people in South Africa who rely on the health system at different points in time. Reform of this magnitude requires a process that is inclusive, transparent and responsive to the concerns raised. Where that standard is in question, judicial review is not an obstruction, it is a safeguard.
The Constitutional Court plays a critical role in upholding these principles. Its task is to ensure that parliament acts within the bounds of the constitution and that the rights of citizens to participate in the law-making process are protected.
The matter is scheduled to be heard in the Constitutional Court from May 5-7, where the adequacy of the legislative process will be tested. The outcome will have implications beyond the NHI itself. It will speak to the standard required for public participation in major legislation, and to whether stakeholder engagement in South Africa is substantive or merely procedural.
The BHF remains committed to working towards a healthcare system that delivers access, quality and sustainability, but achieving that goal requires more than policy direction. It requires a process that builds confidence, invites scrutiny and incorporates the expertise and concerns of both the public and private sectors.
• Mothudi is MD of the Board of Healthcare Funders.
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