NHI faces Constitutional Court test this week
This week, the Western Cape Government and the Board of Healthcare Funders are challenging the NHI Act 20 of 2023 in the Constitutional Court. They wish to have the Act declared invalid and set aside.
Image credit: Megsfoster2, CC BY-SA 4.0, via Wikimedia Commons
The Western Cape Government argues that it was not correctly included in the legislative process.
BHF's disagreement centres on Parliament's actions regarding the NHI process, rather than on universal healthcare itself.
BHF thinks that Parliament failed to comply with its constitutional obligation to facilitate meaningful public participation before passing the NHI Act.
Challenges
According to BusinessTech, the provisions of the Act that are being challenged include:
- The public participation process.
- The rationality of signing the Act into law.
- Various sections related to private medical aids.
- Sections related to specialist services.
- The overall constitutionality of the Act, particularly in relation to arbitrary deprivation of business, removal of freedom of choice, and limiting access to healthcare.
EWN reports there is disagreement between the BHF and Parliament on the ConCourt's sole jurisdiction to hear this challenge.
The BHF has not adequately explained why the case should be brought before the court, according to Parliament.
It claims that there is insufficient factual information in BHF's foundation documents to establish exclusive jurisdiction.
Parliament has argued that the BHF has not sufficiently justified why the matter belongs before the court.
It says BHF’s founding papers lack the necessary factual detail to trigger exclusive jurisdiction.
Health department is confident
Daily Maverick reports that the Minister of Health, Aaron Motsoaledi, attended the first hearing in person, alongside former health minister Nkosazana Dlamini-Zuma.
Motsoaledi expressed confidence in the department's case when addressing the media outside the court.
“We feel we have done what needs to be done. Because our actions are based on section 27 of the Constitution of the Republic, which says that everyone has got a right to healthcare.
“It goes on to say that the state must do everything within its available resources to make sure that this right is realised by the population.
“Subsection 3 says no one must be refused medical care. All those things are not happening now, and NHI is supposed to bring them into existence.”
President Cyril Ramaphosa signed the Act into law in 2024. Still, along with the Department of Health, the President has agreed to pause the NHI rollout and further promulgation of the Act until the case is finalised.
The public participation hearing is set to run until Thursday, 7 May 2026.