The Constitutional Court will hear evidence whether there was sufficient public participation in the creatinonand passing of the National Health Insurance Act.
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South Africa’s controversial National Health Insurance (NHI) scheme faces a critical test in the Constitutional Court on Tuesday - if the Board of Healthcare Funders (BHF) application succeeds, the NHI Act may be scrapped and many other legal cases against the scheme will fall away.
On Tuesday and Wednesday, the Constitutional Court will simultaneously hear the BHF and Western Cape government’s applications challenging the constitutionality of the parliamentary process that led to the adoption of the NHI Act in 2023, a spokesperson for the BHF said Monday.
The BHF is a representative body to the healthcare funding industry enabling medical schemes, manage care organisations and administrators to provide healthcare to their medical scheme members.
Its main contention is that Parliament failed to allow meaningful public participation before passing the NHI Bill, and it argues that the Act should be declared invalid and set aside.
The BHF said also that when Parliament held hearings and received submissions on the NHI, these inputs were not meaningfully considered or had not influenced the final legislation, as required by sections 59 and 72 of the Constitution.
The NHI has faced a wave of legal challenges since it was signed into law in May 2024 - an AI search says there are at least 14-15 separate cases lodged by provinces, medical associations and private healthcare groups. The Western Cape challenge centres around it being granted insufficient time by the NCOP (National Council of Provinces) for the province to consider the Bill.
Parliament, represented by the Speaker of Parliament Thoko Didiza, argues in its court papers however that the NHI Bill served before Parliament for the full term of the Sixth Parliament and had involved extensive public participation hearings.
Parliament also contended that “the (BHF) application is manifestly without merit. It does not get out of the starting blocks for a simple reason: this Court does not have jurisdiction to determine BHF’s pleaded challenge.”
“If this Court’s jurisdiction is engaged every time an applicant simply contends that Parliament ‘did not listen’ because its views are not reflected in the legislation enacted, this Court would be inundated with public participation challenges,” Parliament said.
A Parliamentary portfolio committee had afforded the public three months to submit written comments on the Bill. The committee received 338 891 written submissions.
Regarding the public hearings, Parliament said these were attended by 11 564 members of the public across 9 provinces, and 61 961 oral submissions were made at the hearings.
“The overwhelming sentiment at each of the hearings, in all 9 provinces, was that the Bill found support with the public,” Parliament said.
In addition, a parliamentary portfolio committee had conducted virtual hearings with 108 different stakeholders over 28 days.
The BHF said, however, that passing the Bill without clarity on how it would be sustainably funded raised serious questions about the rationality of the Act.
“Parliamentary procedure demands that legislators have enough information to make informed decisions…” the BHF said.
The BHF said the NHI Act did not adequately define key elements such as the scope of benefits, funding mechanisms and implementation framework, limiting meaningful engagement and raising concerns about legislative certainty.
The Act also conferred wide-ranging powers on the Minister of Health to determine critical aspects of the scheme through future regulations, with limited parliamentary oversight, the BHF said.
“The legislation was adopted in the absence of updated and reliable financial modelling notwithstanding that such information was provided in various submissions from the public, raising real questions about affordability, sustainability and whether the Act meets the constitutional standard of rational lawmaking,” said the BHF.
The BHF’s case is not a challenge to the principle of universal health coverage. “The case is about whether or not Parliament complied with its constitutional duty to facilitate meaningful public participation before passing legislation that will reshape the country’s health system.”
The BHF said the public participation process was inadequate because Parliament and the public were not provided with enough information, including the proposed basket of services, funding model, operational design and implementation framework.
“Without this information, meaningful engagement and subsequent decision-making was impossible, and thus Parliament was not placed in a position to properly test whether the legislation would achieve its stated objectives,” the BHF said.
The NHI Act has far-reaching implications for patients, healthcare professionals, medical schemes, employers, taxpayers and the broader health system.
“In our submission, we argue that the process effectively became a ‘tick-box exercise’ by members of Parliament, rather than a genuine engagement with input from the public. Where participation is reduced to form over substance, it undermines both the law and the legitimacy of the democratic system it seeks to create,” the BHF said.
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