A NHI pilot district vehicle parked at Alan Blyth Hospital in Ladismith on 15 February 2023. (Photo: Shelley Christians) 
The trade union Solidarity. The DA. The Health Funders Association. The South African Medical Association. The Board of Healthcare Funders. The South African Health Professionals Collaboration.
These are just some of the bodies that have indicated they are prepared to approach the courts to challenge the controversial National Health Insurance (NHI) Bill – before it has even been signed into law.
DA leader John Steenhuisen said on Tuesday that the party would take the legislation to court as soon as it had been signed, with the DA’s legal team having been briefed “months ago”.
The Board of Healthcare Funders – one of the major industry bodies for medical aid schemes – was equally resolute, announcing that it would “immediately institute legal proceedings”.
The South African Medical Association stated that it would “fight for the protection of our healthcare services in [the] relevant courts”, and that “our legal team is preparing to launch this challenge”.
Even before President Cyril Ramaphosa made his surprise announcement on Monday that he would be signing the bill into law on Wednesday, trade union Solidarity had indicated that it was gearing up for a “major court battle”.
Other organisations were slightly more circumspect but hinted that they were not ruling out legal action.
Business Unity SA said it would “consider [its] options” based on the details of Ramaphosa’s Wednesday announcement, and that this might include “appropriate legal interventions”.
The Health Funders Association – another industry body for medical aid schemes – said on Tuesday that it is “well prepared to defend the rights of medical scheme members and all South Africans to choose privately funded healthcare”.
A spokesperson for the South African Health Professionals Collaboration – a national body representing more than 25,000 public and private sector healthcare workers – said: “We have no doubt that the NHI Bill will be challenged in the courts, and we are currently exploring all our options in this regard.”
Range of legal arguments likely to be made
The signing of the NHI Bill looks set to be a gigantic payday for the government’s lawyers – though it is as yet unclear if some of the aggrieved parties may join forces to contest the legislation together or as friends of the court.
The bill is likely to be attacked on multiple legal grounds.
Business Leadership SA CEO Busisiwe Mavuso pointed out on Tuesday that the Constitutional Court had previously struck down legislation because of the state’s failure to adequately take into account the results of public consultation, which she suggested might be the case here.
Mavuso said: “Public consultation cannot just be a matter of procedure, but must include proper consideration of the input received, as spelt out in the Promotion of Administrative Justice Act. It is hard to believe that there has been proper consideration when draft legislation is finalised without change after a comment period.”
Read more in Daily Maverick: Understanding the National Health Insurance Bill – Six articles to read
The Board of Healthcare Funders (BHF) pointed specifically to section 33 of the legislation as the aspect it would legally challenge, describing it as “unconstitutional and unlawful”.
Section 33 stipulates that no medical aid will be able to cover any health service offered by the NHI.
“We want section 33 removed as it reduces the role of medical schemes that are a national asset,” BHF stated.
The law firm Werksmans Attorneys’ head of healthcare, Neil Kirby, wrote in November 2023 that the NHI legislation in its current form might be open to constitutional challenges on the basis of the right to freedom of association if it attempts to force people to register as NHI users.
“Equally, the state cannot enact legislation that unfairly or unreasonably limits a person’s rights to access healthcare services where there is a viable and available alternative to do so,” Kirby wrote.
“Such a situation would, no doubt, bring the bill and eventual NHI scheme into a collision course with the Constitution.”
Social justice organisations have also raised concerns that the rights of asylum seekers and foreign nationals may be infringed by being granted access to only limited healthcare services in terms of the legislation, which is likely to be another avenue for legal confrontation.
In general, it has been suggested overall that the NHI would create barriers to accessing healthcare – for instance, in terms of the documentation required for registration – which would be unconstitutional too.
Former health department legal adviser, Dr Debbie Pearmain, was quoted last year as noting that the state’s law adviser had said the bill would likely pass constitutional muster.
“But bear in mind that the state law adviser has said several other pieces of legislation are constitutional and then the courts have found them not to be,” Pearmain said. DM