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NATIONAL HEALTH INSURANCE

Avalanche of litigation likely to follow Wednesday’s signing of contentious NHI Bill

Avalanche of litigation likely to follow Wednesday’s signing of contentious NHI Bill
A NHI pilot district vehicle parked at Alan Blyth Hospital in Ladismith on 15 February 2023. (Photo: Shelley Christians)

At least six separate legal challenges to the National Health Insurance Bill are being planned – with more likely to follow after its signing into law on 15 May.

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

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  • Pet Bug says:

    Desperate for 50%+1.

    • Donald bemax says:

      Agreed. president rum and cola from loot easy house is using this as a desperate attempt to pull more votes from the gullible voters….

  • Anthony Sturges says:

    This is a callow election ploy but like all things the ANC touches or instigates, it has not been thought through with the country in mind!

  • drew barrimore says:

    This failed Ramaphosa, desperate for votes, couches the proposed NHI disaster as the ‘haves” trying to prevent the ‘have-nots’ from getting good medical care. Stooping this low, this slime-bag lies its way into a narrative most likely to resonate with the unthinking who loyally make their cross for the ANC every five failed years.

    • Willem Boshoff says:

      Ramaphoria to Ramadisappoinment to Ramadisaster. At least his true colors is now nailed to the mast for all to see.

    • Peter Merrington says:

      The weird irony is that the public sector medical care which Ramaphosa claims to be the victim of ‘medical apartheid’ is the government’s own responsibility (no less than 30 years since the end of apartheid), and yet they that they fail to make it good (apart from the excellent specialists who continue to volunteer their time in public health). So a smokescreen is raised, a mist, a fog, a delusory solution which will simply not work. It seems that the ANC can only function by flying the flag of victimhood – instead of embracing the gained task of governance and doing its basic duty. I’m getting heartily sick of the dynamics of our politics. It’s like groundhog day.

  • James Baxter says:

    The NHI bill is a bill that is going to destroyed the private sector because government has already destroyed the public health care. Everything the government touches turns to opposite of gold. The government is like the opposite of Midas, while Midas turned everything he touched to gold, the government does the opposite. I love government because I live in a safe country thanks to government. I have internet, thanks to government. I have clean water thanks to government, I have received a not world class education in a township School thanks to government. There is police who protect me thanks to government. SA is not like other African countries where the economy is in the doldrums and children suffer from chronic illness and stuff, which is horrible. Those African countries are horrible because they have useless government who hate their own people more than even king Leopold hated the Congolese. They are worse than Leopold himself, those African governments who shall remain nameless. But. I can say the private health care industry should in effect kiss their collective behind goodbye because the commies are coming baby. While government of SA is great and stuff, they have a horrible work ethic. They are not motivated to become the best they can be, it’s like they go to work to be the most unproductive workers in history of unproductivity. There are a tiny, an extremely tiny minority of government workers who go above and beyond, but you need a microscope to find them

  • Martin Neethling says:

    Ramaphosa describing resistance to the NHI as the “haves not wanting the have-nots to benefit” must surely savage any residual support he may still enjoy amongst tax-paying South Africans who need to shore up their own family’s healthcare outcomes by buying these services privately, using after tax personal funds.
    To be clear, there is no good idea behind this. Many people now couch their criticism of the NHI by first saying “while I agree in principle with the objectives of the NHI…”. I suggest that this is not so. Wanting to raid private funds to prop up an ideological idea of equality of outcomes is wrong. Wanting to then prevent those same people from still buying private services, using yet more private money, is State Control of the highest order. This is the NDR on steroids, nothing less.
    The obvious thing to be actually focused in is improving the healthcare outcomes of the taxpayer-funded State system, but this involves unsexy ideas like hard work, putting competence ahead of any other criteria, being willing to partner and accept help from individuals and organisations that are vested in SA’s future, protecting pockets of excellence that do exist or miraculously develop, and really supporting the Provincial governments that take their mandate seriously. Unglamorous, industrious, compassionate effort changes the outcome, not the NHI.

  • JDW 2023 says:

    I wonder what it’s like to be so craven that, despite knowing about your completely ineffectual tenure as a president coupled with the enormous albatross around your own party’s neck with regards to poor governance and corruption that has resulted in lingering poverty and a situation where the middle class is achingly overtaxed, you still proceed with a reckless plan that has from all angles been shown to be extremely risky for the economy and the remaining health professionals left in the country. It’s a messy sentence I know but that’s the reality of where we find ourselves. Rhamaposa is acting in a cowardly fashion as he clearly cannot stand up to the pressure from within his party. Even his own health minister has questioned whether SA is ready for this. And then the president has the hubris to tell a group of people yesterday that the ANC’s motivation is to address inequality. Imagine that! The last twenty-odd years didn’t show much of the same motivation. I am a clinician working in a well-managed state hospital. Even now we are not coping with the demand for services with the resource constraints under which we are operating. And with the ANC’s track record of handling money ethically and equitably, this is suddenly going to change? REALLY? The trust has been broken with the populace. I cannot see how this stupid move is going to rectify that.

  • Richard Bryant says:

    The fatal assumption made about the the so-called NHI scheme is that it combines the national health budget to medical aid contributions to fund some sort of universal cover.

    That assumes people will continue to pay medical aid contributions. I certainly won’t! We don’t need complicated court cases to collapse this fantasy. You simply resign from your medical aid or switch to a hospital only plan. Nobody can force me to belong to a private scheme and then use part of my contribution to fund a majority who pay nothing.

    Medical aids relies on extremely low reserves to survive. The regulator requires medical aid to hold a minimum of 25%. What this means is 25% of annual contributions. Or 3 months. That’s it! If everyone stops paying contributions, in 90 days, the entire thing collapses. And puts pay to the fatal assumption made by the idiots behind the NHI scheme.

    The NHI bill proposes to carve out services one by one into the so-called NHI. After which medical aids no longer will be allowed to cover that service. But if everyone is on a hospital plan, there will be nothing to carve out.

    In this scenario, I would be left to pay my own accounts for doctors, dentists etc. But what’s stopping the doctors from creating a system where you prepay for services? Like pay your doctor a monthly amount in return for services when you are sick. In medical insurance speak, this is called capitation. In the USA, they have things called HMOs. Trust the market to find a solution.

    • Tom Boyles says:

      You fundamentally misunderstand the proposed funding mechanism for NHI. Nowhere does it say anything about taking money from your medical aid contributions!!! I don’t know where you got that from but it is complete nonsense. You will likely be taxed more, but they will not take money from your medical aid contribution, that’s just silly.

      • Martin Neethling says:

        Private medical aid will be outlawed Tom. So indeed you will not have your private medical aid contributions ‘taken’ because you won’t be paying them. But the additional taxes (in whatever form) that individuals will have to pay will account for those medical aid contributions, no doubt. Services you will be permitted to obtain privately (and pay for privately) will be very limited. Hope this point wasn’t missed.

      • Tobie Du Toit says:

        I take your point. However, who will contribute to the NHI? Or do the propose that it be funded 100% by taxes?

      • Richard Bryant says:

        I was directly involved in this NHI thing in the mid-1990’s giving evidence to the Shisana Commission. At that time Dr Alex van der Heever was behind the proposal with a sensible approach. Listen to what he says now. We gave evidence together with actuarial specialists to show that an NHI was possible if it was introduced at a low level for all EMPLOYED people. Both the employee and employer would contribute and employees would get services, and pay for them at State facilities. This scheme could be used to incrementally improve the state facilities over time, and would end up competing for services in the private sector driving down prices.

        They simply ignored all the advice and evidence at the time. They just didn’t want to listen.

        All along, their fundamental assumption was that if you combine the National Health Budget together with the total medical aid contributions, there would be enough. It is still their assumption, and as I point out, it is a fatal one.

        What they did change was to create a package of minimum benefits compulsory for all medical schemes. This alone is a reason why medical aid has become so expensive. If you go back before then, medical aids were compelled to pay doctors directly if they levied services at the ‘scale of benefits’. This was removed in the mid-1990’s as it was killing schemes. But then Shisana reintroduced the guaranteed payment thing with the PMB’s. Look at any scheme and see which part of their scheme is unsustainable.

      • Richard Bryant says:

        I didn’t say that they would take money from the medical aids to pay for NHI. What they are proposing is that once a medical service is put into NHI, it will be illegal for a medical aid to provide it. Theoretically then your medical aid contribution will reduce, and they will put a tax somewhere else to pay for it. Theoretically only!

        What I pointed out was the assumption of adding the 2 pools together would provide enough money for universal health care. The UK NHS costs about 180 billion pounds annually equivalent to about R4 trillion or about double SA’s current budget. About 95% of this spent on day to day services and admin. And their system will have very little leakage for corruption while in SA, the very first tender in the name of NHI resulted in R150m being carved out by Zweli Mkhize. So what will be sensible budget for SA and what will it provide? I don’t know but nor does the government because they haven’t put a single proposal forward to show how it will be paid or what services it will provide. Or maybe they have, but won’t disclose it.

        I am the first to acknowledge that the private medical system in SA is in crisis. Its become totally unaffordable. But breaking it won’t fix the state health system which in most provinces, has become totally disfunctional.

        But while they diddle around, one thing is for certain, any investment in SA’s private health system will come to a screeching halt. Money and people will leave.

    • Peter Holmes says:

      Thanks. A most insightful take on NHI funding and some of the strategic ploys which medical aid members might adopt to circumvent this nonsense. Your final sentence says it all.

  • Gavin Knox says:

    The anc politburo desperately needs the private health system to be eradicated so the surplus cuban/chinese/iranian/russian and any other bricks members can come enjoy the fruits of their sponsored revolution.

  • Rae Earl says:

    Once he has signed this piece of shit into legislation, Ramaphosa will finally have completed the process of selling his soul to the devil simply to buy votes. If the voters retain this corrupt and thieving flock of vultures in cabinet there can be only one statement that covers this awful prospect. You deserve it!

  • Tobie Du Toit says:

    Every medical aid member and their dependants should vote to oust the ANC. Why? They are planning to take your med aid contributions, your medical tax rebates and throw it into the NHI funding pot. Then they will give you ANC standard government service, with all the trimmings, like corruption, cadre deployment, etc.

  • Middle aged Mike says:

    “Even before President Cyril Ramaphosa made his surprise announcement on Monday”.

    From whence the surprise? The lubed up lizard is acting entirely in character.

    “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,”

    Ain’t that the truth. Our government has a long and storied history of colouring way out of the lines of the constitution with the fat greasy crayons provided them by their law advisers.

  • JAJ Stewart says:

    The ANC must know this. Clearly pre-election populist politricking.

  • Roy Hurrienarain says:

    We are all afraid that NHI will fail because of the level of corruption & the current situation of public care. On the other hand, we need to realize that only 16 % of the us have access to private health care whilst the balance of the population is dying without proper health care. Some, even have the privilege to travel abroad to get medical attention.
    Those that have a problem with NHI are the one that will lose the most as many of them are abusing the private medical aids & patients. Being senior citizen, we experience many such problems in the private system with doctors overservicing & overcharging. One has damaged my left eye by preforming laser treatment that was not required. Three other doctors have since found that I do not have diabetic retinopathy. I am now told to get my attorneys to contact them.
    Instead of complaining, we should all think of assisting by developing a system that will benefit all.
    It is obvious that the current setup is benefiting the rich & big business whilst the poor are dying & no one cares. Let’s be human & care for the poor also.

    • Confused Citizen says:

      I am already paying a BIG chunk of tax to look after the poor! And the poor are doing their utmost to swell their ranks! Through unsustainable procreationa and continued support of the communist ANC and their business unfriendly policies.
      So NO, I’m paying enough for the poor!

  • Karin vdK says:

    Cyril baby,,have a look at the difunctional money pit that is the UK’s NHS and take note!

  • Colin Louw says:

    I really hope that Steenhuizen actually manages to engage brain before mouth on this issue. Can he not see the carrot dangling in front of him?? It is such an obvious ploy an I am sure Helen Z does see what the Ramaposers are doing – get the DA to make a case, trumpet to the dumb electorate “DA is against national healthcare for you and your kids!!” and get an additional maybe 2 or 4% of the vote. If they do rush to court , even I would have doubts about putting in a vote for the DA because they are then so effing stupid, one cannot really back them!

    • Tobie Du Toit says:

      I would target all medical aid members and point out what the NHI will take from them and what it will give. On all media fronts.

  • Con Tester says:

    It is both surprising and depressing that by far the majority of voices clamouring about Ramaposeur’s imminent signing of the NHI Bill keep missing the point on which the implementation of the NHI scheme hinges crucially. On its own, signed into law or not, the bill is a totally lame duck. To swim, it will need further legislation that governs and regulates funding and disbursements from National Treasury—a so-called “Money Bill.” Only the Minister of Finance is empowered to introduce such legislation. The short of it is that without this additional legislation, the NHI Bill has no teeth whatsoever. Moreover, after the elections, the ANC may well have lost its national majority that would allow it to force such funding legislation through parliament virtually unopposed with the required majority.

    The above detail is pointed out in the final section of the linked-to article in this writeup’s penultimate paragraph citing Dr Pearmain, but it seems that it simply gets ignored in the hot-headed rush to disgorge outrage and condemnation.

    And so, for now, this whole NHI fracas looks a lot like ANC electioneering theatre, underscoring once again Ramaposeur’s standing as a shifty conman.

  • Llewellyn Curlewis says:

    Ramaphosa only uses private hospitals and expects doctors from the same minority he says are scared of the bill to implement. If doctors say no this is dead in the water

  • Louis Botha says:

    The idea of NHI is currently misunderstood by a lot of people. Obviously the segment of the population that do not pay tax, that are currently forced to use the free government healthcare system are ecstatic. They have a promise to lie in a world class hospital without contributing.

    Under NHI, tax paying citizens and companies will have an increased tax burden which will impact them dramatically. Then as reward….
    1) You will now no longer phone your trusted GP for a consult or referral to a specialist or hospital of your choice.
    2) Your first stop will be to an administrator who will decide if you even need to see a doctor, and then you will be told who that doctor is. This administrator is likely to be as efficient as those people currently employed at the Dept of Home Affairs.
    3) Similarly, your doctor will be seeing patients allocated to them by your friendly administrator.
    4) So the current Doctor / Patient / Service provider relationship will be a thing of the past.
    5) You who pay the highest NHI tax, you can be expected to be allocated to one of the current government hospitals in all its glory, with no food and linen, when all the currently private hospitals are fully booked. This includes your children. And if you are paying the additional fee to belong to a medical aid, and the medical service is listed under NHI, they will not be able to help you! Think about this carefully.

    NHI is a fund, nothing about it works to improve the state healthcare offering.

  • Ex Pat says:

    And like vultures surrounding a carcass, the major players in this pantomime are the lawyers, licking their collective lips in glee at the inflated taxpayer funded fees they will earn.

  • Chris Brand says:

    This attempt to gain more votes, if it succeeds in getting the solicited votes, will firstly take some time to be implemented, which will allow those top-earning individuals in the RSA to depart to saner countries to escape its disastrous effects, whilst leaving the rest of those that cannot escape, to suffer under the degradation of all healthcare in the RSA. The current top Healthcare institutions as well as most doctors and definitely specialists will “take their money and also leave the RSA and all healthcare will collapse and hospitals will all be renamed as “funeral parlors”.

  • Brian Algar says:

    I think the moronic individuals that think signing this bill which they know is going to be taken to court, should be held personally responsible for the costs should the court find against them. They will then have to pay the costs of this shameless electioneering ploy, instead of the taxpayers.

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