Government’s NHI plan heads to court 

The Board of Healthcare Funders (BHF) is taking the National Health Insurance (NHI) Act to court, claiming it is too vague to be implemented, unconstitutional and unaffordable.

The first leg of this legal challenge will be heard in court at the North Gauteng High Court on Tuesday, 4 March 2025.

The BHF is seeking to set aside the President’s decision to sign the NHI Bill into law, which he did in May 2024.

The government’s NHI scheme aims to transform South Africa’s healthcare system, achieve universal coverage for health services, and, through this, overcome critical socio-economic imbalances and inequities of the past.

The legislation provides a framework for providing universal care through a state-run fund and will ban the private sector from financing treatment covered under the plan.

However, it has been met with severe backlash, with critics saying the legislation is misguided or even unconstitutional.

The BHF said its goal is to ensure a healthcare system that works for all. 

“However, the NHI Act, in its current form, undermines this goal and risks dismantling a system that provides critical healthcare access to millions,” it said.

“The BHF is challenging the NHI Act in court because we do not believe it will achieve the government’s objective of achieving universal health coverage by 2030.” 

“This is because we believe the NHI Act is too vague to be implemented, is unconstitutional and is unaffordable.”

Instead, it said the NHI Act will undoubtedly result in a regression of healthcare services in South Africa. 

“It, as well as other management failures, will result in the mass departure of skilled healthcare professionals; concentrate excessive power in the national department of health and will do nothing to address the current administrative deficiencies in our healthcare system,” it said.

The organisation warned that, if implemented in its current form, the NHI Act will also undermine the impact that medical schemes have on the South African health sector.

This includes providing cover for 9.7 million lives in the country, of which over 67% are from previously disadvantaged groups. 

“The BHF contends that removing healthcare benefits, for even just one of these beneficiaries, is in breach of section 27 of the Constitution, which guarantees everyone the right to access healthcare services,” it said.

The organisation is also concerned about how the Bill was assented to and made law.

President Cyril Ramaphosa signed the NHI Bill in May 2024, bringing it into force as an Act of Parliament. 

The BHF claims that, in doing so, he ignored all the well-reasoned arguments made by a range of stakeholders, including business, civil society, and health interest groups. 

This includes several representations made by the BHF to the President outlining why the NHI Bill was unconstitutional.

“As there were clear reservations about the constitutionality of the legislation, the President was obligated by law to refer the Bill back to the National Assembly for reconsideration. He did not do this,” it said.

“In the circumstances, the BHF had no choice but to request the High Court to review and set aside the President’s decision to sign the Bill into law.”

This first leg of the proceedings in this court case will focus on two questions of law that have been raised by both the first respondent, President Cyril Ramaphosa, and the second respondent, the Minister of Health, Aaron Motsoaledi.

These questions were filed via notices that must be decided before the BHF’s main review application may be heard. 

The BHF said these notices filed by the President and the Minister are seen as an attempt to stall the progression of its main application to review and set aside the President’s decision to assent to and sign the NHI Bill.  

“The notices have been filed in the face of the urgent need to find a resolution on our ailing health system,” it said.

The first part of the President and Minister’s argument, set out in their notices, is that only the Constitutional Court can decide if the President has failed to fulfil a constitutional obligation. 

In other words, he questioned whether the High Court has the jurisdiction to make a ruling on the BHF’s review application.

The second part of the President and Minister’s argument concerns whether the President’s assent and signature on a Bill can be reviewed.

If so, it further questions whether the President is obligated to provide the BHF with a full record of the proceedings that led to the decision, including all documents, evidence, and reasons.

“Both these arguments are designed to stall the hearing of the BHF’s main review application,” the organisation said. 

“It is also abundantly obvious that the President wants to avoid filing his record of decision on the NHI Bill, which will no doubt show that he ignored several submissions advising him that it was unconstitutional.”

 In response to these two notices, the BHF contends that the President’s power in terms of section 79(1) of the Constitution is subject to constitutional controls and is therefore capable of judicial review.

This section is what requires the President to refer the Bill back to the National Assembly for reconsideration if he has any reservations about the constitutionality of the legislation.

In addition, the BHF said the President’s powers and duties to assent to and sign a Bill, read along with section 79 of the Constitution, is a procedural step in a much larger law-making process. 

“His decision is required to be solely based on a legal determination and is therefore suitable for review by the High Court,” the organisation said.

“In light of the BHF’s position that the President’s decision to sign the NHI Act into law is subject to judicial review, the President is required to furnish the BHF with a copy of the record of decision.”

The BHF said it remains committed to universal health coverage but firmly believes that it can be achieved through the establishment of a multi-payer model where NHI and medical schemes co-exist. 

“We remain committed to working with government to implement solutions that harness the best of both the public and private health sectors to address the healthcare needs of our citizens,” it said.

The BHF’s legal challenge comes after trade union Solidarity dealt the first legal blow to the government’s NHI scheme in 2024.

In July 2024, the Pretoria High Court ruled in favour of Solidarity in its case against the Minister of Health, the President, and the Health Department’s Director-General, declaring sections 36 to 40 of the NHI Act unconstitutional. 

These sections, which required a Certificate of Need for healthcare practitioners to operate in specific areas, were found to unlawfully infringe on the rights of medical professionals. 

Solidarity argued that this provision amounted to the expropriation of doctors’ businesses and property, restricting where they could practice and negatively impacting both practitioners and their patients.

Following the ruling, Solidarity CEO Dirk Hermann stated that this decision suggests parts of the NHI Act may also be unconstitutional. 

He criticised the government’s attempt to centralise control over medical practices, warning that such power could lead to irresponsible governance. 

Solidarity further claimed that the state introduced these provisions to support the implementation of the NHI and compensate for the government’s financial constraints.