Legal showdown: Constitutional Court to review NHI Act challenge next month
1008528229__20260124__0 The WCG recently filed papers with the Constitutional Court to challenge the validity of the NHI Act.
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The Constitutional Court is set to hear a legal challenge to the National Health Insurance Act from May 5 to May 7.
The Board of Healthcare Funders and the Western Cape Government (WCG) will argue that they were not adequately consulted during the Bill's development and assent.
The litigation that has been initiated against the President and the Minister of Health has meanwhile necessitated that President Cyril Ramaphosa, following consultations with Minister Aaron Motsoaledi, agreed to delay the proclamation of any sections of the National Health Insurance (NHI) Act until the Constitutional Court has handed down its judgments in the two challenges.
The Department of Health has indicated that preparatory work has been ongoing, such as the improvement of health services, before any sections of the NHI Act are ready for commencement. The undertaking by the President will not affect the timetable for the implementation of the NHI.
The WCG recently filed papers with the Constitutional Court to challenge the validity of the NHI Act in order to defend in what it said is the constitutional right of every resident of the Western Cape to take part in the lawmaking process and to be heard by Parliament.
The implementation of the NHI Act will involve a major and complex restructuring of healthcare services in South Africa, including the services which are currently provided by provincial governments. The NHI implicates a fundamental human right – the right to healthcare – and is of paramount importance to the public interest. The passage of the Bill therefore required extensive and meaningful public participation, the WCG will argue.
The provincial government believes that the National Council of Provinces (NCOP) failed to consider the views of the people of the Western Cape when it deliberated on the NHI Bill and thus did not meet its obligation to facilitate meaningful public participation in the legislative process.
Western Cape Minister of Health and Wellness, Mireille Wenger, said in court papers that the NHI is arguably one of the most significant and controversial statutes in South African democratic history, which was rushed through the NCOP without considering, debating, or deliberating on any substantive input arising from the public participation processes in the provinces.
The WCG is seeking relief from the Constitutional Court to declare that the "flawed" public participation process renders the NHI Act unconstitutional and invalid.
The Board of Healthcare Workers, meanwhile, in their court papers said that it is not against a universal healthcare system, but they will focus on how Parliament executed the process. “The case is not whether the State bears a constitutional obligation to take reasonable measures to progressively realise access to health care services. The State does and it must".
According to the board, critical information including funding details and operational aspects was not made public during the legislative process. It said this application is brought in the interests of all South Africans. It has sought a suspension of the Bill for not more than two years, for Parliament to revisit the public participation process and to properly and meaningfully consider the provisions of the NHI Bill.
In opposing the applications, Parliament and the Executive will argue that extensive public hearings were held across all provinces and that written submissions were taken into account.