That something was up became clear when the National Council of Provinces (NCOP) was running 10 minutes late on Wednesday. It takes a little bit of time to prep the deferment motion that was announced in the chamber.

The vote on the National Health Insurance (NHI) Bill that seeks to introduce universal public healthcare in SA is now scheduled to be held on 6 December. And that vote must happen, regardless of the political twists and turns that were on display on Wednesday afternoon. 

At this stage of the legislative process, few options exist. 

One would be to withdraw the NHI Bill entirely — a political impossibility ahead of the 2024 elections when the governing ANC alliance partners are actively demanding the NHI. 

Or the Bill may be rejected in the NCOP — again a political pickle, and difficult unless the ANC changes its stance, given that eight provinces declared their support for the Bill on 21 November. If that happens the Bill will be sent to the mediation committee to potentially linger for years, like the 2018 National Gambling Amendment Bill — again, politically unpalatable in the run-up to next year’s elections.

If the Bill is approved in the NCOP next week, it will be sent to President Cyril Ramaphosa to be signed into law — or to be returned to Parliament according to section 79 of the Constitution because of concerns over the legislation’s constitutionality, or defects in the process, such as inadequate public participation and consultations.

Read more in Daily Maverick: ANC gets its ‘revolutionary’ NHI legislation adopted despite opposition criticism and likely litigation

The NHI Bill would not be the first to be returned to the national legislature. The Expropriation Bill was returned twice, in 2016 and 2018, and will now come before the NCOP on 7 December. According to the Parliamentary Monitoring Group, since 1994 a total of 18 Bills were returned to Parliament by various presidents.

The possibility of the NHI Bill being returned to Parliament was signalled  on Wednesday when, at a media briefing, Presidency spokesperson Vincent Magwenya was asked about the Bill and organised business’s eleventh-hour lobbying. 

Magwenya confirmed business had reached out to Ramaphosa.

“Concerns have been expressed directly to the President,” he said, pointing out the President had a constitutional duty to properly consider and apply his mind before signing this Bill, or any legislation, into law. Petitions may be sent, and previously have been sent, to a President as part of this process.

The presidential spokesperson noted, “The passing of the Bill does not necessarily mark the end of the process.”

A day earlier, on Tuesday, organised business in the form of Business Unity South Africa (Busa) and Business for South Africa (B4SA) said they had appealed for a delay in the vote in letters to Parliament’s presiding officers and Deputy President Paul Mashatile, in his capacity as leader of government business, or the liaison between Cabinet and Parliament.

‘Utterly unimplementable’

“For the National Assembly and the NCOP to disregard proposed amendments that will have a beneficial and tangible impact on citizens, or indeed would prevent harm to citizens, in the interest of rushing the Bill through Parliament, is unconstitutional. It makes a mockery of due process and portrays the NCOP as nothing more than a rubber stamp,” said Busa CEO Cas Coovadia in a joint Busa-B4SA statement.

Describing the current Bill as “utterly unimplementable”, organised business pointed out no money existed to implement the new public health proposals.

Read more in Daily Maverick: National Health Insurance roll-out one step closer, but private healthcare has burning questions

Controversially, the NHI Bill not only sets down a compulsory referral system for patients, who would no longer choose their GP; it also limits private medical aids to services not available in universal public healthcare. The law would end private medical schemes once the NHI system was fully implemented, according to section 33.

Wednesday afternoon’s twists and turns highlight the complex political dynamics when the realities of governance in South Africa’s brutal economic scenario clash with blunt political instructions to push through a law — also against parliamentary legal advice and health department proposals — to clinch upcoming voting support.

Daily Maverick learnt the letters from Busa and B4SA were acknowledged. The role of those letters emerged when the DA leader in the NCOP, Cathy Labuschagne, gave a rundown of the political machinations on Wednesday afternoon.

Even though the NCOP chief whip, ANC delegate Seiso Mohai, on Tuesday evening called for a debate on the NHI Bill — a great PR moment to play to ANC alliance partners Cosatu and the SA Communist Party — with 30 minutes to go on Wednesday it was a different matter.

“By 1.30 pm we were urgently called to a whips’ meeting… The chairperson of the NCOP had requested for the Bill not to be debated,” Labuschagne said.

DA Chief Whip Siviwe Gwarube sharply criticised this turn of events. “It’s unthinkable the national legislature is dictated to by some mysterious forces. It can not be that at the 11th hour an order is removed … on the basis of a letter that the NCOP chairperson refuses to share,” Gwarube said. 

If the NHI Bill is passed, the DA will petition the President to refer it to the Constitutional Court to test its constitutionality. And if that did not happen, the DA would try to rally a third of MPs in the National Assembly to themselves go to the Constitutional Court for such an assessment under section 80 of the Constitution, according to Gwarube.

As a last resort, lawyers have been briefed and DA court action was set to unfold. 

The rescheduling of the NHI Bill vote to next Wednesday was described as “programming-related issues” by Parliamentary spokesperson Moloto Mothapo in a text message. “Such rearrangements are not uncommon as part of parliamentary programming,” he added.

Read more in Daily Maverick: There are paths to quality universal healthcare besides NHI

Effectively, a week has now opened up for further consultations and engagements even if just to tell organised business to calm down and stand down.

Busa and B4SA on Wednesday afternoon welcomed the deferment. “Busa and B4SA will continue to engage government on the substantive and procedural constitutional shortcomings of the Bill, to ensure that these concerns are addressed,” they said in a statement.

Cosatu ‘deeply dismayed’

Cosatu, however, was “…deeply dismayed government wilted like a cheap suit under pressure from a little bit of lobbying by business”, according to its statement.

“We need government to speak with one voice as this level of policy uncertainty is not helpful. The ANC needs to exert itself and remind government and the NCOP that the NHI is an ANC policy mandate, not some seasonal slogan,” the labour federation said in its statement, with a reminder the overwhelming majority of workers are in support of an NHI.

The NHI Bill has been in the making for four years in Parliament but dates back to the ANC’s 2010 Durban National General Council when the decision in principle was taken to change South Africa’s health system to universal health access.

A key motivation then, and still today, is that only about 15% of South Africans are members of private medical aid schemes, which forms the basis of a highly unequal healthcare system. While in recent years cheaper medical aids have hit the market, the sign-up rates have remained level.

To date, the NHI Bill has not been costed, although it’s estimated to require R450-billion a year. Some have argued it would require a 3 percentage point hike of value-added tax (VAT).

To date, Budgets have set aside only a few hundred million rands to prepare for implementing NHI. This comes as the government’s own assessments show the overwhelming number of health facilities fall short of cleanliness, patient care, friendliness, management and other standards.

On December 6, the NHI Bill’s next steps will emerge. Regardless, the complex political dynamics in the run-up to next year’s elections against tough economic realities make for difficult decisions. DM