NHI will be crushed by legal challenges

Legal challenges will decimate the National Health Insurance (NHI) Bill if President Cyril Ramaphosa signs it into law. 

This is feedback from Wits School of Governance professor Alex van den Heever, who told Newzroom Afrika that the NHI will face strong legal challenges if it becomes law. 

Van den Heever’s comments come on the back of President Ramaphosa saying that despite the threat of legal challenges, the NHI Bill will be signed into law soon.

Ramaphosa joked during his State of the Nation Address (SONA) that he was looking around for a pen to sign the Bill. 

Parliament’s National Council of Provinces approved the Bill in December. It referred it to the president, who can either assent to it or ask lawmakers to amend it if deemed legally or technically flawed.

“It is extremely controversial and potentially very prejudicial to the healthcare system as a whole, both the public and private sectors,” Van den Heever said. 

“The Bill has not been amended despite multiple submissions that emphasised several flaws. And so, it is likely to face strong legal challenges if it is signed.”

“If he finds his pen, we will have a series of court cases that will probably end up decimating the Bill in its current form.”

Van den Heever explained that the Bill seeks to collapse the provincial healthcare system and centralise it in a national institution that does not exist yet while also collapsing private funding for healthcare. 

Businesses, through Business Unity South Africa (BUSA) and Business for South Africa (B4SA), are preparing to submit a petition to Ramaphosa, requesting that the Bill be referred back to the National Assembly for amendment. 

In its current form, the business groups said the NHI is unworkable, unimplementable, unaffordable, and unconstitutional. 

“Our concerns, recommendations, research, data, and inputs, as well as those made by a wide range of experts and affected stakeholders, have been ignored by the Parliamentary Portfolio Committee on Health and the NCOP,” Martin Kingston, B4SA Steering Committee Chair, said. 

Those entities are legally mandated to ensure that the NHI Bill passes constitutional muster and is properly configured to give healthcare the best possible chance of success.

“No amendments were made at all, including those suggested by the Department of Health itself, which is deeply concerning for our country and democracy,” Kingston said. 

“The reality is that if President Ramaphosa signs the NHI into law as it is now, I suspect there are many people that are going to litigate,” Kingston said. 

“It will effectively be stillborn and will not proceed until the courts have applied their minds. We think it does not even pass Constitutional muster.”

Kingston explained that the NHI is a critical piece of legislation and should not be rushed through by the government. 

“We support the need, as business, for universal healthcare under the Constitution,” Kingston said. That means the NHI has to comply with the Constitution procedurally and substantively, which it does not.