NHI damaging South Africa

While President Cyril Ramaphosa has been forced to pause the promulgation of the National Health Insurance (NHI) Act, the legislation is already causing damage.

The NHI Act has cast a shadow over the healthcare sector, deterring investment, discouraging students from studying medicine, and delaying decision-making.

This is the view of Sakeliga executive director Russell Lamberti, who believes that the mere existence of the NHI Act is damaging South Africa’s healthcare sector.

Sakeliga is one of many parties currently engaged in litigation with the government over the NHI Act.

It and other stakeholders have launched two types of court challenges against the NHI Act, challenging its procedural and substantive merits.

One of these court cases has led to a court order temporarily blocking the state from implementing the NHI.

Per the court order, President Cyril Ramaphosa has undertaken not to promulgate any provisions of the Act while the first set of legislation regarding its procedural merits is underway.

The Constitutional Court must rule on public participation challenges brought against the NHI Act before any implementation can take place.

However, according to Lamberti, damage has already been done despite the NHI Act being put on ice.

“Even if we don’t get a full-fledged NHI system, in and of itself, it would be extremely costly and extremely harmful,” he said.

“This whole shadow hanging over the healthcare sector now is already doing damage just by existing because it deters investment.”

He said it discourages clear, long-term decision-making in healthcare practices, which could harm the healthcare sector over time.

While South Africa’s private healthcare industry continues to make substantial investments into their businesses, Lamberti said this does not mean the NHI is not having an impact.

“What you’re not seeing is all the investment that’s not taking place and all the innovation that’s not taking place,” he said.

“Perhaps even all the young students who are choosing not to go into medicine because of this shadow hanging over the healthcare sector.”

NHI on ice

While the NHI Act is already doing considerable damage, Lamberti said the good news is that “we’ve got the NHI on ice”. 

“When that court case starts to be heard, we think that the case against the NHI is overwhelming. It’s a huge mountain of litigation,” he said. 

The NHI is facing 9 lawsuits challenging both its procedural merits, such as the public participation process that preceded its enactment, and its substantive merits.

For example, AfriForum has filed summons and legal actions targeting Ramaphosa and Health Minister Aaron Motsoaledi, arguing that the NHI Act is unaffordable and damaging to the country.

The Health Funders Association, along with Solidarity, has also filed claims challenging the constitutionality, workability, and funding model of the NHI scheme.

The sheer number of lawsuits against the NHI has led many experts to believe the legislation will be tied up in court for years, delaying its implementation.

Governance expert Professor Alex van den Heever previously said the NHI scheme is highly unlikely to ever be implemented, even if there were no litigation against it.

This is because the scheme lacks a clear funding mechanism and its institutional design makes it unlikely to achieve its objectives.

Until then, the legislation will likely spend years in court, especially considering that the government’s attempts to consolidate or settle the legal challenges have failed.

“It’s going to take very long, which is great because it’s going to delay this process. That’s a good thing,” Lamberti said.

“We need to delay and throw sand in the gears, but primarily show how irrational, unaffordable and harmful this is. So, all things considered, I’m quite optimistic when it comes to where we are in the NHI.”