Pres­id­ent Cyril Ram­a­phosa will tell the Con­sti­tu­tional Court that the con­ten­tious National Health Insur­ance (NHI) rep­res­ents a step for­ward in redress­ing the unequal health-care sys­tem inher­ited from the apartheid regime, which excluded black people.

The high-stakes con­sti­tu­tional chal­lenge to the pro­cess fol­lowed by Par­lia­ment in passing the NHI Bill is led by the Board of Health­care Fun­ders (BHF), which argues the health-care reform would bank­rupt SA – and that the Pres­id­ent rushed his assent to it for elec­tion­eer­ing pur­poses ahead of the 2024 elec­tions. 

The mat­ter is set to be argued over three days, start­ing on Wed­nes­day, and the court could order Par­lia­ment to redo the pro­cess, poten­tially push­ing the mat­ter into the 2029 elec­tion sea­son.

Ram­a­phosa, in papers filed on his behalf by the State Attor­ney and seen by the Sunday Times, says he does not wish to enter into the mer­its of the pub­lic par­ti­cip­a­tion chal­lenge, arguing that doing so would breach the sep­ar­a­tion of powers pro­vi­sions of the Con­sti­tu­tion.

However, the papers main­tain that NHI is essen­tial for the country, and deny any polit­ical con­sid­er­a­tions in his decision to assent to the Bill on 15 May 2024.

‘The real­ity is that the healthcare sys­tem inher­ited from apartheid excluded the major­ity of South Afric­ans, pre­dom­in­antly black cit­izens, from access­ing qual­ity healthcare ser­vices. Healthcare in this coun­try is strongly influ­enced by socioeco­nomic inequal­ity and the con­com­it­ant inequal­ity based on race and gender,’ the Pres­id­ent’s legal adviser, Geo­frey Mphaphuli, said in an affi­davit.

The BHF has taken issue with the pub­lic con­sulta­tion pro­cess fol­lowed by Par­lia­ment, say­ing it was inad­equate and amoun­ted to invit­ing the pub­lic to speak to a ‘legis­lature that had already made up its mind’.

The Sunday Times reports that it will argue that Par­lia­ment passed one of SA’s most far-reach­ing stat­utes of the demo­cratic era without proper regard to the cost implic­a­tions and whether the fiscus and tax­pay­ers would be able to afford it.

The organ­isa­tion rep­res­ents about 65 med­ical schemes, admin­is­trat­ors and man­aged-care organ­isa­tions cov­er­ing around 4.5m bene­fi­ciar­ies. 

It said the cost­ing of NHI should have been a primary con­sid­er­a­tion for the legis­lature, and that its absence reduced pub­lic par­ti­cip­a­tion to a mere form­al­ity.

The Gauteng High Court (Pre­toria) in Feb­ru­ary inter­dicted the Health Min­is­ter and the Pres­id­ent from pro­claim­ing or imple­ment­ing any pro­vi­sion of the NHI Act until the pending pub­lic par­ti­cip­a­tion chal­lenges are resolved.

West­ern Cape Premier Allan Winde will argue that the NCOP fell short of its oblig­a­tions in, among other things, refus­ing an exten­sion to the province of a dead­line to sub­mit the out­come of its con­sulta­tion on the NHI Bill.

Assembly Speaker Thoko Did­iza will reject both the BHF’s and Winde’s claims that the pub­lic con­sulta­tion pro­cess was flawed.

The Sunday Times notes that Did­iza will point to about 338 000 writ­ten sub­mis­sions received from the pub­lic, as well as pub­lic hear­ings in all nine provinces as evid­ence that exhaust­ive pub­lic con­sulta­tions were held.

Full Sunday Times report