The Con­sti­tu­tional Court will this week hear two high-stakes chal­lenges to the NHI Act that cast the spot­light on how Par­lia­ment con­sidered pub­lic input on the legis­la­tion.

It has set aside three days (5–7 May) to hear the applic­a­tions brought by the Board of Health­care Fun­ders (BHF) and the West­ern Cape Gov­ern­ment, reports Business Day.

If the applic­ants are suc­cess­ful, Par­lia­ment will have to recon­sider the con­ten­tious legis­la­tion.

Since the ANC no longer holds an out­right major­ity, this could lead to mater­ial changes to the legis­la­tion and delay the former gov­ern­ing party’s health plan.

If the applic­ants fail, a swathe of legal chal­lenges that were paused pending the out­come of this week’s court case will resume.

The NHI Bill was sub­mit­ted to Par­lia­ment in August 2019 by then Minister of Health Zweli Mkh­ize. The National Assembly’s Port­fo­lio Com­mit­tee on Health held pub­lic hear­ings in the provinces, called for writ­ten sub­mis­sions, and con­duc­ted oral hear­ings in Par­lia­ment.

Few mater­ial changes were made to the Bill, which was sub­mit­ted to the NCOP for con­cur­rence in Septem­ber 2023, leav­ing it with a very nar­row win­dow in which to pro­cess it before Par­lia­ment rose for the gen­eral elec­tion in May 2024.

The NCOP made no changes and passed the Bill three months later.

It was signed into law by Pres­id­ent Cyril Ram­a­phosa on 15 May, two weeks before the elec­tion.

According to Business Day, the BHF and West­ern Cape Gov­ern­ment argue that the pub­lic par­ti­cip­a­tion pro­cess con­duc­ted by Par­lia­ment was so flawed the legis­la­tion should be declared uncon­sti­tu­tional and invalid and set aside.

Par­lia­ment’s rebut­tal is that it spared no effort in eli­cit­ing pub­lic input and was under no oblig­a­tion to agree to the amend­ments sug­ges­ted by the BHF or by any other party.

The West­ern Cape Gov­ern­ment argues that the NCOP rub­ber-stamped the Bill and in its haste broke the rules gov­ern­ing the pas­sage of legis­la­tion.

It says the Select Com­mit­tee on Social Ser­vices was unreas­on­ably inflex­ible when the West­ern Cape reques­ted extra time, ignored its doc­u­ments and did not allow it an oppor­tun­ity to influ­ence the law-mak­ing pro­cess.

Nor did the com­mit­tee con­sider and debate the reports it received from Limpopo and the North­ern Cape or the amend­ments pro­posed by the North West and West­ern Cape, Health & Well­ness MEC Mireille Wenger says in papers. 

Par­lia­ment says it allowed mul­tiple changes to the timetable for con­sid­er­ing the NHI Bill and that the West­ern Cape was seek­ing extra time only because it had dragged its heels in con­duct­ing pub­lic hear­ings.

Full Business Day report