The first leg of multiple challenges to the National Health Insurance Act (NHI) begins in the Constitutional Court today, as medical aid schemes and the Western Cape Premier challenge the public participation process that preceded its passage through Parliament.

News24 reports that the multiplicity of cases, brought by seven different applicants, has been consolidated and sequenced by the courts, so that the first hurdle – whether the public participation process was adequate – is decided first, before the other cases are heard.

All other cases have been removed from the roll until the fairness of the public participation process has been decided.

These include cases on the constitutionality of the NHI brought by, among others, Solidarity, the Board of Healthcare Funders (BHF), the SA Medical Association, and the SA Private Practitioners Forum.

The NHI Act was preceded by four years of parliamentary processes, including public participation hearings by both the National Assembly and the NCOP.

However, despite the very strong opposition to the Bill expressed by numerous stakeholders, very little changed from the time it was introduced to its passing.

In today’s case, which is brought by the BHF, which represents medical aid schemes, and the Western Cape Premier, the argument will be about lapses in the public participation process. In papers before the court, the BHF argues that the absence of crucial information about the NHI – such as what it would cost and what benefits it would provide – means the public did not have enough information about the scheme to reach an informed opinion.

News24 reports that the BHF yesterday said the process effectively became a ‘tick-box exercise’ by MPs, rather than a genuine engagement with input from the public.

Where participation is reduced to form over substance, it undermines both the law and the legitimacy of the democratic system it seeks to create.

In its application, the Western Cape Premier argues that the NCOP’s consultation failed to take into account the province’s submission, which was submitted later than those of other provinces after it was granted an extension.

However, when the NCOP received it, it confirmed its earlier view that it would pass the Bill. In responding to these arguments, the government respondents have pointed to the lengthy consultation process, which included over 300 000 written submissions, oral hearings, and visits to the provinces.

If the court rules against the government in today’s case, then the NHI Act will be set aside and the law-making process will have to begin again.

If it rules in favour of the government, the remainder of the cases will be consolidated, where possible, and the constitutional issues will then be argued, notes News24.

Full News24 report