South Africa

NATIONAL HEALTH INSURANCE OP-ED

Why the ConCourt is not the appropriate body to address challenges to the NHI Act

Why the ConCourt is not the appropriate body to address challenges to the NHI Act
Illustrative image: President Cyril Ramaphosa signed the NHI Bill into law on 15 May 2024. (Photos: Pete Marovich / The New York Times | Kyra Wilkinson)

The Constitution does not and should not prevent the democratically elected government from passing laws merely because an economically powerful minority opposes it.

It is inevitable that the constitutionality of aspects of the National Health Insurance Act will be challenged in court and that the Constitutional Court will have to consider these challenges. We do not yet know on exactly what grounds the constitutionality of the Act will be challenged, and it is thus currently not possible to say definitively whether any of the legal challenges will succeed. 

I am, however, prepared to put my head on a block and say that the Constitutional Court will decline any invitation by opponents of the Act to torpedo the implementation of the entire Act, not least because it is not the role of the court to make decisions on whether a specific policy choice of the government is good or bad, or whether there were better ways for the government to achieve its legitimate policy objectives.

And let there be no mistake, the objectives of the NHI policy cannot be faulted.

The Act provides for the establishment of a National Health Insurance Fund which will pay for a list of prescribed medical services (which will be expanded over time) that will be provided to registered users of the fund by registered healthcare professionals in the public and the private sectors. Healthcare professionals will not be free to set their own rates for these prescribed services as they will be reimbursed in accordance with rates annually set by the fund. It may take 10 to 15 years to fully implement the National Health Insurance system.

Private medical schemes will continue to exist, but will not be permitted to cover medical services already covered by the fund. However, if a significant number of people give up their medical aid it is likely to lead to a dramatic increase in the cost of private medical aid. It is not yet clear how all this will be funded, but it would require the imposition of additional taxes. The argument is that such additional taxes may only have a limited impact on those of us who are currently members of private medical aid schemes as we would no longer have to pay for expensive medical aid.

This new policy aims to eradicate existing inequality in the provision of healthcare services so that everyone more or less has access to the same high-quality healthcare services, provided at a reasonable rate at state expense. 

In constitutional terms, the aim of the NHI is to give effect to the state’s duty in section 27 of the Constitution to take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of the right of access to healthcare. 

Valid concerns

If the system works as intended, it will create a much fairer system and will go a long way to realise the constitutional right of access to healthcare for all. While there are valid concerns about the ability of a weak and corrupt government to fund and implement the scheme, I would argue that the Constitutional Court is not the appropriate body to address such concerns. 

The NHI seeks to implement the specific policy choices of the elected government. If the governing party loses its majority in Parliament in the upcoming election and opponents of the NHI win a majority of seats, they would be able to repeal the Act. 

In a hung Parliament, opposition parties could also use their participation in a coalition government as a bargaining chip to demand changes to the Act. But if the majority of voters cast their ballots for parties that support the current Act, it is not appropriate for the court to thwart the will of the people by torpedoing the Act merely because it believes it is a bad policy or because there are concerns about the impact of the NHI on people who currently belong to medical aid schemes.

Of course, the court does have the power to invalidate the Act on procedural grounds and to invalidate specific provisions of the Act if these unjustifiably limit one or more of the rights in the Bill of Rights. However, its role is a limited one in cases where it is called upon to review legislation that implements the policy choices of the elected government. 

As the Constitutional Court warned in National Treasury and Others v Opposition to Urban Tolling Alliance and Others, courts are not always well suited to make decisions about the collection and ordering of public resources as this “inevitably calls for policy-laden and polycentric decision making”. This is so because:

“Determining how public resources are to be drawn upon and re-ordered lies in the heartland of Executive Government function and domain. What is more, absent any proof of unlawfulness or fraud or corruption, the power and the prerogative to formulate and implement policy on how to finance public projects reside in the exclusive domain of the National Executive subject to budgetary appropriations by Parliament.” 

That said, let me now turn to a tentative assessment of some of the arguments being made in support of claims that the Act or parts of the Act are unconstitutional and invalid. 

Lack of public participation

Business Leadership SA CEO Busisiwe Mavuso suggested that the Act could be challenged because the minister or Parliament had failed adequately to take into account the results of public consultation, and suggested that the Promotion of Administrative Justice Act (Paja) required “proper consideration of the input received”. This is misleading, first, because Paja does not apply to the exercise of the executive or legislative function, and second, because the duty of Parliament to afford the public a reasonable opportunity to participate effectively in the lawmaking process, does not require Parliament to adopt any of the arguments made before it.  

What is required in cases where important legislation is under consideration is for Parliament to provide a reasonable opportunity for the public to have their say and for it to give due consideration to the views of the public. The Constitutional Court is not going to invalidate the Act because the portfolio committee rejected the overwhelming majority of submissions made to it — as long as there is evidence that it considered the important arguments presented to it, it would have met the requirement to facilitate public participation in the process. 

The right to freely choose one’s trade or profession

It has been suggested that provisions in the Act that prohibit medical schemes from covering medical services already covered by the fund might infringe on the section 25 property rights of medical schemes as well as their section 22 right to choose their trade, occupation or profession freely. It is not clear to me what the legal basis for these arguments might be, but I assume it is based on the assumption that these provisions might — in the long term — put some or most medical schemes out of business.  

If this is so, a major problem with this argument would be that the court would be asked to invalidate legislative provisions based on sweeping claims about their possible effect in the distant future, which is never a winning argument. Moreover, similar arguments advanced in Minister of Health and Another v New Clicks South Africa (Pty) Ltd and Others failed to find favour with the Constitutional Court. There the argument was that specific regulations on the pricing of medicine would render many pharmacies not economically viable, which would have the effect of discouraging people from choosing to pursue or remain in the pharmacy profession in conflict with section 22 of the Constitution.  

In separate judgments, justices Dikgang Moseneke and Albie Sachs pointed out that there was not sufficient evidence to show that the regulations threatened the continued existence of pharmacies. Justice Sachs added, “The mere fact that a government measure could result in service providers losing their competitive edge so as to face being driven out of business, would not in itself be enough to make a measure legally inappropriate”. He warned against attempts to use constitutional arguments to protect the status quo, as this might serve “to block transformation and freeze challengeable aspects of our public life”. 

Access to healthcare of current medical aid members

Concern about the NHI is largely driven by fears that it will reduce the easy access and quality of health services available to current members of medical aid schemes. Understandably, many middle-class people are anxious that the reform will leave them worse off, not least because the implementation of the NHI may well reduce the easy access and quality of health services available to those of us who can afford medical aid.  

In essence, the fight here is a political fight about the policy choices of the elected government. The government is perceived to have made a policy choice that will disadvantage the middle- and upper-class minority while conceivably benefiting the working class and poor majority. This is, of course, to be expected in a constitutional democracy. 

Although this has been the norm rather than the exception over the past 25 years, it is rather absurd to expect the ANC government not to adopt popular policies that would benefit its core constituency just because this would be unpopular with the middle- and upper-class voters, who are in any event less likely to vote for the ANC. 

So, while in theory a constitutional argument could be made that the NHI would infringe on the section 27 right of access to healthcare of those who already enjoy easy access to high-quality healthcare, if it reduced the easiness of access or the quality of the healthcare, it would be surprising if our courts found that any such limitation was not justifiable in terms of the section 36 limitation clause. This is so particularly given the important purpose being served by the NHI and uncertainty about the exact impact of the new policy. 

Exclusion of categories of non-citizens from some benefits

There is one provision of the Act that raises valid concerns about the discriminatory impact of the scheme. This is section 4(2), which states that asylum seekers or illegal foreigners are only entitled to emergency medical services and services for notifiable conditions of public health concern. This is a discriminatory provision that, at least as far as asylum seekers is concerned, would be difficult to justify. 

Lest I be misunderstood, I am not suggesting that the issues discussed above are the only possible issues that may feature in litigation challenging aspects of the NHI Act. Nor am I suggesting that there is no possibility of the court invalidating specific provisions of the Act. There is also a fair chance that serious problems will arise during the implementation of the policy and that the court may then be more willing to consider precisely targeted constitutional challenges dealing with these problems.  

But I do worry that the inevitable flurry of legal challenges will obscure the fact that the unhappiness about the introduction of the NHI is rooted in a fundamental political disagreement about the wisdom of a specific policy choice made by the democratic government, a choice that seems to favour the working class and poor majority and not the upper- and middle-class minority. 

The Constitution does not and should not prevent the democratically elected government from passing laws merely because an economically powerful minority oppose it. (It would, of course, be an entirely different matter if the law unjustifiably limits the rights of the economically powerful group.) 

The NHI may turn out to be a damp squib because the government may not be able to fund it. It may also turn out to be a disaster, not only for the privileged but also for those already suffering because of limited access to healthcare. A Constitutional Court is not well placed to protect us all from such a disaster, just as it is would not be well placed to protect us from the disastrous effects of a radical free market policy implemented by another government.  

Welcome to democracy. DM

Pierre de Vos is the Claude Leon Foundation Chair in Constitutional Governance in the Law Faculty at the University of Cape Town’s Department of Public Law

Gallery

Comments - Please in order to comment.

  • Steve Davidson says:

    “… it is rather absurd to expect the ANC government not to adopt popular policies that would benefit its core constituency just because this would be unpopular with the middle- and upper-class voters, who are in any event less likely to vote for the ANC”

    But ‘voters’ – the ones mainly paying the taxes that keep the ANC and the country going – who are very likely to ‘vote’ with their feet, and disembark from this benighted country along with the existing – and future – doctors who keep the system going. Oh, sorry, of course. Cuba and China will jump in and fill the void. I forgot.

    • Denise Smit says:

      That is the future of the country in all aspects. Break down and expect the private sector to fix the mess left

      • John Kuhl says:

        We and country are already socialistic and enroute to full socialism……There is no doubt about this. the bad thing is they have already run out of money to fund the transformation never mind the maintaining of such a system. The funders ( tax payer base) is reducing and will further reduce…..Failure is a given

    • Denise Smit says:

      That is the future of the country in all aspects. Break down and expect the private sector to fix the mess left

  • Temba Morewa says:

    Perhaps Pierre is planning to enter politics. Looking at this looking article and his views it seems like it… He might know more about these matters than me but failed to awnser if it’s fair to all concerned. The only difference with the NHI is that it now brings terrible healthcare (of a much lower and terrible standard) to everyone – except those who voted for it. Because they will, and can afford to, go where better healthcare is available!

    • Denise Smit says:

      We don”t need a constitutional court, we have De Vos. Although if we look at how Friday went at the constitutional court, we do not know whether we really have a court, or is it a show on strings where the second in charge of law is manipulated by a forcefull politician

    • Bob Dubery says:

      Based on what I’ve seen and read, he’s over qualified for the job. Most of our elected representatives have no idea how courts work and what they do at best, and think the Constitution in particular and courts in general are a nuisance at worst.

    • Andre Fourie says:

      Pierre did not make any political statements: he simply provided his legal opinion on the likelihood for the success of various potential ConCourt challenges to the NHI Bill, and why some are less likely to succeed than people like us – with far less legal knowledge and expertise – may want to believe.

      Any ConCourt challenge to the NHI will not be successful due to emotional issues such as ‘fairness’ or whether you feel aggrieved at its implementation. It’ll live or die on the basis of legality – and here Pierre has provided ample food for thought.

      • Paddy Ross says:

        It is not the economically powerful that criticise this Act, it is those that have an economic understanding and realise that South Africa can not possibly fund this electoral fraud. I am in favour of national health schemes but realise that this Act has no chance of achieving that objective – read Tim Cohen’s ‘After the Bell’. He does understand economic realities.

        • Titus Khoza says:

          It boggles the mind how you can choose to swallow Tim Cohen’s views as the only gospel truth and vilify all the others only just because they don’t happen to be aligned to your own way of thinking,

  • Thinker and Doer says:

    It is indeed unfortunate that the NHI Act has to be challenged in Court, when the fundamental grave issues with the NHI have been consistently glossed over or completely ignored by the government, most particularly that it is completely unaffordable to implement without massive tax increases that the limited proportion of the population if taxpayers can’t bear. The funding model is still not disclosed or even developed. That is completely reckless for the legislation to be passed. The programme goes beyond what is doable under available resources. This is not examined in the article.

    Also, the rampant corruption and maladministration in the public system currently is not even acknowledged or attempted to be redressed. The government is also incapable of implementing the programme, and the Central Fund will be a magnet for looting, the history of large government managed funds and public enterprises clearly indicates how misguided creating such a massive Central fund is. The existence of the PFMA provides no reassurance in this regard. This article only makes a very brief reference to this fundamental concern. When the government has rammed the NHI Bill through as a populist measure, ignoring the very substantial and legitimate concerns regarding the implementation, what other recourse is there, than to the courts? The article characterizes the nature of the concerns in an unfortunate manner, similar to how the government portrays and dismisses them.

    • Denise Smit says:

      And when more taxpayers now leave this country, (this is supposed to be the funders of this wish} , where will the money come from. We are already on the fiscal cliff, and are just about to fall into the abyss. Dropping down now!!!!!!!

    • Deirdré Lubbe says:

      Exactly!

  • Errol Price says:

    What a mish -mash of jurisprudential confusion is this article. The Affordable Care Act in the US which was similarly a massive federally legislated overhaul of medical care for the whole population was challenged three times in the US Supreme .Court.
    Since the writer is only speculating as to the grounds upon which the Act will be challenged, any prudent lawyer would not venture a firm opinion.
    How can he be sure that some fundamental right is not being infringed ?

    • Deirdré Lubbe says:

      I wonder about that too. Freedom to seek private healthcare inside or outside the country (e.g. Russia) should be a fundamental right.

  • Richard Bryant says:

    The fact that the legislation was signed into law without first establishing whether it is economically viable, is irrational and reckless.

    They say it will be introduced incrementally most likely by starting with primary health care services. There is the problem. In the UK, the NHS costs about 180 billion pounds annually or about 2x SA’s budget. It covers around 60 million people which is comparable to the SA population.

    But here is the cold truth. About 90% of this amount is spent on cover for primary heath services and admin. These facts are openly available for any lawmaker to ask the hard questions – how on earth will SA be able to afford this?

    Nice idea on paper we all agree. But the truth is, once you make health facilities free, the costs spiral out of control. The only way thereafter to control it is by rationing. Which means very long queues. People literally die in the queue waiting to see a doctor.

    Which doctor is going to spend 7 years studying then another 2 years national service to be faced with a scenario like this?

    The legislation is clearly irrational and it fails on the basis that the lawmakers did not take into account an iota of the feedback and comments provided by experts in the industry.

    It was just a political show creating unreasonable expectations.

    • Bob Dubery says:

      And yet lots of doctors in the UK, and in many European countries, do just that. They do all those years of hard work and then go work in a National Health practice.

      • Richard Bryant says:

        A doctor working as a GP in the UK NHS earns an annual salary between £69,000 (R1,6m) and £104,000 (R2,5m). Just saying!

        • Bob Dubery says:

          Well I don’t know the numbers, but a family member was an NHS GP, and she is enjoying a very nice retirement. But she was paid by the NHS, so all this socialism stuff paid for by other people’s money can be attractive to doctors.

  • Middle aged Mike says:

    “And let there be no mistake, the objectives of the NHI policy cannot be faulted.”

    I credited the author with more gumption than that quote suggests he merits.

    • Andre Fourie says:

      Constitutionally, he is probably correct. Whether that agrees with your views is not up to the author. Remember, truth is not what you want it to be; it just is what it is.

      • Middle aged Mike says:

        It’s got blow all to do with the constitution and everything to do with the motivations of the people pushing it who happen to be the leaders of the ANC. The cover story may be noble and shiny but pretty much everyone who’s awake knows that the ANC will pump gravy out of this thing like they do with everything else they control. Are you suggesting that dollar couch guy and his crew are doing this for reasons other than electioneering and rent extraction?

  • Karl Sittlinger says:

    Quick question on this topic maybe someone here knows:
    If the NHI is challenged constitutionally, will that pause it being implemented? Or can the government simply forge ahead while being litigated?

    • Simz Simz says:

      As long it’s not interdicted by a court order, government will continue with implementation whether there’s litigation or mot

  • Tom Boyles says:

    I have been eagerly awaiting Mr de Vos comments on this topic and he does not disappoint. He is absolutely right that the aims of NHI (to introduce Universal Health Coverage free at the point of delivery) cannot be faulted, despite what Commentators on this platform might say. NHI is not perfect and will not be perfectly implemented but the current system is SO bad, literally one of the worst systems in the world, with a grossly inefficient Private sector leaching billions of Rand a year in wasted expenditure and a corrupt and incompetent leadership of the Public sector that almost any move would be worthwhile.

    • Middle aged Mike says:

      You think the NHI is aimed at improving healthcare? It has as much to do with that as the arms deal had to do with defense.

      • Tom Boyles says:

        Yes I do think it is aimed at improving healthcare and reducing inequality.

        • Middle aged Mike says:

          The fellas who awarded themselves more than a billion zars of public money for VIP protection aren’t much concerned with fighting inequality. I’m amazed that after 30 years of their wholesale looting of every bit of public money they have access to there are still people who take their kleptocommie schtick at face value. You should probably prepare for some serious disappointment.

        • Miss Jellybean says:

          If you believe that I have a bridge you might like to buy

    • Deirdré Lubbe says:

      You are only wrong in expecting that this government is capable of improving the health system. Their record speaks for itself.

  • John Lewis says:

    Pierre tends to make interpretations that are generous to the ANC and aligned with his own woke world view, so I am hopeful he will be proven wrong. I would certainly hope any court would give serious consideration to how the Act has been steamrolled through without any changes in years and without any real attempt to consult with stakeholders and engage with their valid concerns. It is difficult to think of any law which is as widely hated as this since e-tolls and we all know how that went. In this instance, the consequences will be far more serious.

    • John Kuhl says:

      as much as I despise the WOKE world its alive and well and seriously being punted by the weak…….we the “”classical “” mindset being seen as undesirable……soon the life issues Europe are facing will preside here as well……the NHI issue…..the masses have spoken….our educated experienced logic has no value……its purely trashed because unfortunately the educated and experienced are in the minority….

    • Tom Boyles says:

      In the same way that E-toll was only hated by a tiny minority of South Africans (car drivers), the NHI bill is only hated in your small echo chamber. The vast majority of South Africans (the 80% without private medical insurance) are almost all in favour of this bill.

      • Paddy Ross says:

        Of course the 80% are! They are being told that they will get something at no cost to them. They would be mad not to be in favour of the NHI. What they have not been told is that South Africa does not have the money to fund the NHI.

      • John Lewis says:

        They are the ones who will have to pay for it and in the case of the medical fraternity, staff it. Good luck when they vote with their feet! It’s also going to be hilarious to watch the trade union members whose leaders are championing them start seeing the deductions on their wage slips!

  • Geoff Coles says:

    What’s de Vos being paid for this puff piece?

  • Geoff Coles says:

    Free space travel for all who want it… a basic right

  • Louis Botha says:

    The NHI attempts to solve a problem without addressing the root cause. The problem of inequality in healthcare is not that the Private Healthcare is so good. The root cause is that Public Healthcare is so bad. NHI does not address this. It creates the delusion that everybody will now be cared for in Private Heathcare. Ignorant voters may believe this, but Private Healthcare can simply not attend to the entire population.

    There simply has to be an overhaul of Public Healthcare, which will be incredibly hard. That will be addressing the root cause.

    • Alison Joubert says:

      I am not against an NHI in principle, but agree with what you say. Further: (a) Public Health is pretty much free as it is. (b) Public Health is not bad because of a lack of money, but because of appalling mismanagement as well as looting.

    • Caroline de Braganza says:

      You have pinpointed the same issues that concern me. The concept of Universal Health Care is laudable, but not once has the root cause of poor healthcare been addressed or even mentioned. The standard of public health care over the past three decades has declined dramatically to the point where very few public health facilities pass the minimal standards – as evidence in the pilot project a few years ago.

      As a citizen who cannot afford medical aid, I resort to paying out of my own pocket to see a private doctor because I can phone for an appointment and know I will actually be attended to. Past experience with the public system, is that you visit the clinic on the day they say the doctor is coming, receive a number, wait for hours, and either the doctor doesn’t pitch, or runs out of time and you have to return at a later date – perhaps a month later. By then you may be dead,

      Yes, addressing the root cause is the only solution to providing quality health care for all.

      • Kanu Sukha says:

        Did you possibly forget that prior to the past 30 years there was one health care system for the ‘privileged’ (on whatever basis)… and ‘another’ for those not so ?

    • Andre Fourie says:

      Why not start with closing the taps of corruption at places like Tembisa Hospital? Billions of rands spent on skinny jeans, R10,000 plastic buckets and other inflated nonsense, and yet not a single person responsible for that graft – and for the subsequent murder of whistleblower Babita Deokaran – has been arrested, charged, prosecuted, or even prevented from continuing their looting spree. How does any of this improve the lives of underserved, poor South Africans?

  • Willem S says:

    Only Pierre could have an opinion this dumb.

  • Middle aged Mike says:

    Remember this was signed into law by the same BS artist who told us that none of the COVID money would be stolen while his minister of health was already busy skepping. The scope for cadres to pump gravy out of this thing must be making them giddy with anticipation.

  • Margi Jensen says:

    Thank you Pierre for clear explanations as always.

  • Mike SA says:

    Medical Aids are voluntary collective schemes paid for by members out of after tax income. The government has not right to legislate that I cannot belong to an association of my choice and to benefit of society in that it elevates pressure on the fiscus.
    Like Outcomes Based Education which the government in their arrogance refused to listen to advice, once again we see this with NHI where countries with economies five times the size of ours and with a 95% employment, are struggling to provide this much vaunted Universal health care.
    The very persons who NHI are supposed to benefit, are they same ones who have returned the ANC to power again and again since 1994 in spite of the decline in the public sector hospitals, and now the haves ie the over burdened tax payer must foot the bill for this mess that they voted for.
    Covid was a dry run for the competence of the ANC to provide NHI and it was only when Dischem stepped in did the rollout of vaccines actually started gaining momentum.
    My understanding Pierre is that that Constitution and the Bill of Rights are there to protect abuse by a majority over a minority because the intent, as evidenced by Ramaphosa’s recent utterances is exactly that.
    What Ramaphosa fails to understand, is that medical aid to the black public servant is a very important element of their employment and as has been indicated in other publications this is probably Ramaphosa’s Jacob Zuma moment.

    • Bob Dubery says:

      There’s problems with that, the first being that membership is often not voluntary. You start a job and you have to join a medical aid, and not a medical aid that you like but the one that the employer has a deal with or has set up themselves. There is no choice, unless you are married and already covered by your spouse’s medical aid which they joined because they had to.

      Retired folks have a choice, that’s true, but a lot of people belong to medical aids and their only choice is the specific option.

      I wonder if they ever were voluntary. Way back when they started off as schemes set up by employers to help cover costs for their staff when they fell sick. A good thing, especially if you were a miner working in the middle of nowhere, but, again, there was nothing voluntary about it.

      Indeed they were microcosms of what is envisioned as NHI. Everybody pays, perhaps grudingly so, but understands that they will have some cover in the case of serious sickness or injury. But there was no choice. You couldn’t opt out.

      • Richard Bryant says:

        You are wrong. There is virtually no employer in this country that makes membership of their medical scheme a condition of employment. They may encourage it through a company subsidy but even then you can choose a scheme if your choice. Even state workers can choose between Medihelp and GEMS and a range of options within those schemes or the medical aid of their spouse. In addition employees are free to elect out of any scheme.

      • Mike SA says:

        I dont know where you get your facts from but I have known of husbands staying on their wives medical aid because it a better one than the one his company is in.

      • Middle aged Mike says:

        “Indeed they were microcosms of what is envisioned as NHI. Everybody pays, perhaps grudingly so, but understands that they will have some cover in the case of serious sickness or injury.”

        Not remotely close. As stated above and contrary to your view medical aids are voluntary associations but you won’t be able to opt out of paying for the NHI. You don’t get to be on a medical aid scheme unless you pay your dues and given that tens of millions of our fellow citizens subsist on state grants they won’t be paying for it.

        • Bob Dubery says:

          My first job was on a mine, not far from the middle of nowhere, and they had a medical fund that paid GPs certain amounts, and the mining company owned a hospital, and there was a deduction from your pay for all of this. I won’t argue that that was unfair, but I’ll tell you that there was no opting out. At least for white employees. I have no idea what provision was made for black employees.

          Then I changed career paths and moved to what is now Telkom. There, as an immigrant, I didn’t qualify, so I had to make my own arrangements. But apart from the rooinek likes of me, there was no opting out.

          Every job I’ve had for anything not a small or medium business in the last 30 years has had compulsory medical aid membership.

          In many cases these were funds set up for a company or for a business sector. But they became increasingly arduous to manage. Regulations permitted an external administrator to operate the fund, for a percentage. This resulted in first companys like Medscheme and Discovery administering many individual funds, then, eventually absorbing all those funds and memberships into a greater, unified whole.

          Now I’m retired but able, for now at least, to voluntarily retain membership. But in many cases, for those employed in the corporate world, there is a choice of option but that’s about all.

          In those jobs over the last 30 years that I referred to, I twice worked in the healthcare industry. I know what I’m talking about.

  • robby 77 says:

    I must be a very stoopid layman. I thought the our constitutional democracy was one of the most free in the world, almost beyond compare and the bill of rights varied and affirmative of our democratic values and rights. So the author suggests that because I have the right not to receive or purchase healthcare as I am being dictated to, but the right to purchase healthcare in the way that I want to (not infringing on other’s rights), silly me, I must be just having a jolly good old moan and the courts don’t really want to know from a bunch of moaners. And there I thought….

    • Bob Dubery says:

      You’re not stupid. But the Constitution does say that all should have access to quality healthcare. So how does that become reality? I don’t see anything in NHI that rules private practice out entirely, but what it will do is drive prices down in some cases (the Medical Aids are already doing this in some areas of healthcare, but usually not specialists fees).

      Some years ago Government passed legislation to fix the wholesale and retail prices of scheduled medicines. There were changes in the pharmaceutical and hosputal industries, but they didn’t collapse.

      • robby 77 says:

        I am all for lower prices and all citizens to have access to quality healthcare, as long as it doesn’t impinge on my right to purchase and receive healthcare how I would like to.

        • Bob Dubery says:

          We just think we have those rights. The reality is you go to your GP and say “this hurts”. Now at this point you may have absolute freedom to chose a GP, more likely your medical aid has given you a list of providers that they have a contract with.

          The GP then refers you to a specialist who is contracted with the medical aid – you don’t get to shop around.

          In my case the specialist, a urologist, referred me to an oncologist (still no choice, you don’t get to shop around for oncologists either, and have no way of knowing how good they are).

          I raised the question of costs. I was about to retire, and wasn’t keen to do so with a large medical bill hanging over my head. He said that the reason I’d been sent to him is that I am a Discovery member and he has a contract with them and so they will pay everything at the agreed price.

          I never saw that oncologist again. He was not one of the smiling crew that greeted me in the operating theatre.

          The theatre… This was in a day clinic. I had no choice – urologist booked me in there at a time convenient for him (basically he books the theatre for a whole day and it is up to him to get as many patients through there as possible).

          Notice all the choices I’ve had. So far they are
          1) Not to have gone to the GP at all
          2) To have refused the cancer treatment because it was going to bankrupt me.

          There’s more to tell. Like the debt collectors who started calling me two days after the procedure.

          • Bob Dubery says:

            So that’s how private healthcare can be. Not always. The urologist I refer to above was a straight up guy, the rest of the medical experts involved seemed to be involved in a cartel whose aim was wringing every cent they can out of people who are still recuperating.

  • Douw Krüger says:

    Although the article looks like it is presenting a legal argument, the drift is pro-NHI. The real question as many people are seeing it is why the current state medical services are not upgraded and properly managed. That is where the real solution lies. There are still state medical facilities that are providing proper services to the community . It is all about management. Our children did their community service in a small, well run hospital in the eastern Free State. NHI has no chance to improve on that. It will in fact destroy it. The inevitable result of NHI will be very limited medical services for everybody. If the Health Department cannot support and manage the current system, how will they make NHI work? The solution lies in better equipped and managed state hospitals and clinics. Don’t downgrade the private services. Upgrade the state medical services.

    • Andre Fourie says:

      True, that is where the real issue lies, but Pierre is not making social or political commentary. He’s simply laying out the likelihood of a successful ConCourt challenge on various grounds, based on legal reasoning and precedence. You’re completely correct that the issue is the collapsing state of public healthcare, largely due to graft and incompetence but also due to a catastrophic dumbing-down of our education system that is failing to prepare young people for an effective career in the healthcare sector (or any sector for that matter). But that’s not what this article is about: this is just a legal opinion.

  • Hilary Morris says:

    As always, an enlightening, reasoned and sensible article from Pierre de Vos. Would he consider a post as Minister of Justice – or better yet – President? What a pleasure that would be! Thank you for making sense of all the panic and chaos.

    • TS HIGGO says:

      He did run for the post of public protector some years back. Was disqualified because he was a white male and we got the now famed EFF parliamentarian, Mkwabane instead. That’s democracy for you

  • Andre Du Toit says:

    The last sentence: “Welcome to democracy”. This act and others are at the core of the ANC’s strategy to destroy our democracy. The ANC never is/was a democratic organization. (Just look at the ANC’s friends: Russia, China, Cuba, Iran, Zim.)
    Its backbone is the National Democratic Revolution which aims to centralize the power in the hands of of a clique of cadres and ultimately a dictator. NHI quashes your ability to choose your healthcare. BELA puts the future of your children in the hands of faceless cadres and takes control away from school boards.. A long time ago mineral and water rights were nationalized. AARTO takes control away from municipalities. EWC can be used to take control of your assets. All the various acts are the tentacles of turning SA into a Communist state. Communism is the end game, not health, education, prosperity for all. See the ANC for what it is – evil.

  • Jon Quirk says:

    All over the World, NHI schemes are paid for by the peoples of that country, equally shared by all – even those not working. We too have such a system, funded by taxpayers that provides free healthcare at point of delivery, funded by all taxpayers.

    The real question is thus twofold; the “asset” management side, and the funding side.

    Asset side, there is scarcely a functioning hospital in the public sector – maintenance has not happened, the workers have no pride in facilities, and all has been allowed to go to ruin. So until there are sufficient, funded, maintained, hospita/clinics – and this will require a radical re-think on the responsibilities of healthcare civil servants – then fixing this sector, will not happen. Similarly with healthcare professionals; unless and until we are capable of churning out of universities and tech colleges sufficient, quality, caring nurses, support staff, medical engineers, doctors, then this is a non-starter.

    Funding side – memories of Mkhize’s looting of the Covid funds, and the callous shooting down of whistleblowers like Deokoran, and others. And the question as to how to raise the funds – further taxes on an already over-burdened and over-taxed workforce?
    In short, nothing has been thought through; it needs to be put on the shelf, at least until the hard yards, the re-building of the government health facilities have been rebuilt, or built from scratch sufficient to provide the sort of service appropriate.

  • Ron McGregor says:

    “… it is not the role of the court to make decisions on whether a specific policy choice of the government is good or bad, or whether there were better ways for the government to achieve its legitimate policy objectives.”
    Ja, well, no, fine, maybe …
    The Constitution should protect the country from being destroyed by actions of a government that isn’t fit for office. If it can’t do that, then it’s not much of a Constitution, is it?
    We really do need to make distinctions between desirable ideas and practical outcomes. There’s nothing wrong with advancing desirable ideas. The Freedom Charter was full of them, as is our Constitution. Even Marx, naive as he may have been, advanced an idea for a better world. We can’t really knock him for that, even though the idea was completely impractical and led to the death of millions. For that we must blame those who tried to implement the idea, not the guy who had the idea in the first place.
    Professor de Vos is one of those who regards the Constitution as some kind of Holy Writ. As with the Ten Commandments, there’s no proof that it was written by God, and every indication that it was written by men and women. And they made mistakes. One of which was to assume that governments may do as they please, as long as they do it within the framework of the Law.
    De Vos seems to be assuming that, although the ship is sinking, we cannot launch the lifeboats because the Constitution doesn’t permit it.

    • Chris Buys says:

      Great take. Prof de Vos, sadly, as smart has he may be, is just too proud to admit he has been a cheerleader for, and lover of, the wrong crowd. For that he refuses to take responsibility.

  • Hidden Name says:

    I take rather strong issue with your assertions that the NHI is in any way “fair”. Why should the tax payers be further burdened with costs for people who contribute nothing to the tax base? All you are doing is making an incredibly silly argument sound sensible by trying to cast it as morally right. It isnt. We, the tax payers, do NOT owe anything to anyone. Its disingenuous to claim otherwise. Thats for one. For another, the constitutional court is exactly the correct place to raise matters which relate to legislation which goes against the constitution, as the NHI seems to, so your assertion seems designed to make you look good while spewing out what I can only characterise as the worst kind of sophistry I have heard in a good long while.

  • TS HIGGO says:

    Pierre, All your arguments seem sound and there’s no denying that providing quality healthcare to all is a fine ambition. What is amiss though is understanding as to why those who are able to afford better services will be barred from doing so. No country worldwide bans private medical services.. surely this is a matter for the concourt. Surely that is not constitutional ???

    Going further, assuming that the Act cannot be challenged (the banning of private healthcare), do we then need to accept that the State should assure funding for every citizen to live in Constantia, have PVs on their roofs, drives 2 cars with a guaranteed BMW and every citizen must get a minimum wage equal to the salary of the president ??? Surely there has to be recognition that in societies across the world some people live better than others. Banning people from improving their lot in life through hard work makes no sense at all

    • John Lewis says:

      You’ve hit the nail on the head. Progressives like De Vos and many of the NGOs operating in South Africa regard prime location housing, free electricity, prestigious education and Rolls Royce healthcare as something the government can bestow as a right at the stroke of a pen. But these things can only ever be aspirations (worthy ones, to be sure) in a world of limited resources where trade offs can be made. The emphasis on ‘positive rights’ which can never really be guaranteed is a major problem with South Africa’s constitution.

  • Deirdré Lubbe says:

    It may have been viable to implement NHI 30 years ago, before the ANC had brought the public health system to its knees through looting and inefficiency. This is a populist move a few weeks before the elections designed to gain votes. CR has yet to convince me for one, that he is not a lame duck, that he is a decision-maker, that he himself is not deeply implicated in corruption, that the private industry is not the next target

  • Tim Price says:

    The NHI Act is irrational. How can it be otherwise when the chaos, theft and maladministration the ANC government has perpetrated implementing numerous other laws, regulations and policies is quite clear to see. If the Constitution cannot protect us from a government that is so incompetent it cannot be trusted to implement its own policies, then its not much use to us.

  • David van der Want says:

    As a health care professional in the private sector a significant portion of my income comes from people who are insured by one of the medical aid schemes. I agree wholeheartedly that the intention of the NHI cannot be faulted. To me the legal challenges seem a proxy battle for much deeper concerns regarding the capacity of government to develop and administer a national health insurance. The fraud, inefficiency and maladministration that has crippled every sphere of government including the current public health system suggests that our country lacks the maturity to birth and maintain such an endeavour. In this sense, I wonder if the legal challenges that are about to begin aren’t a symptom of our failure to elect a capable and mor-or-less honest government.

  • Michael Evans says:

    I normally agree with Pierre de Vos, but not this time. As an attorney who has practiced Constitutional Law since 1994, I am very confident that a number of the Constitutional arguments that have been raised, will succeed. The NHI is not like the British NHS. There doctors and patients can elect to operate outside the NHS; in SA under the NHI, that option will effectively be barred. That is challengable on a number of Constitutional grounds.

    • R S says:

      Not sure if you have the time or energy, but you could do a more in-depth look at this with an article here. Last time I checked DM does take submissions.

    • Kanu Sukha says:

      As with all matters there will be a ‘contestation’ of views, which is what enables the likes of Dali to earn his ‘peanuts’ ! As for your ‘opinion’ … even as lay person, do you remember the number of ‘professional’ pundits at the start of the SA case at the ICJ, dismissing it as ‘baseless’ ‘groundless’ ‘without foundation’ etc, (American hubris?) ? Suddenly after the ‘outcome’ … groping around for explanations and claiming ‘victory’. Maybe the request today (long overdue in my view) of the issuing of warrants for the arrest by the ICC for Israeli and Hamas leaders, will bring some measure of sanity to the issue.

  • Jaco Janse van Rensburg says:

    “Welcome to democracy.”
    Is the word democracy thrown in there intended to justify the incomprehensible NHI Act. If only there was a way to clearly to define that word democracy. Sigh.

    Also, universal healthcare is the ideal. Stakeholders share that goal. But the reason that so many are willing to take this Act on, is because the NHI does not constitute a workable platform to achieve access to universal healthcare.

  • Johan Buys says:

    Walk before you run!

    Our government spends about double as % of per capita GDP what China and India spend, but we have worse outcomes if you look at tends in life expectancy. They are simply incompetent and spend more on administration than on actual health care. They WILL not suddenly find religion and clarity and efficiency and run the entire national health system better.

    NHI should be trial run in an area / somewhere small like Free State or North West. If they don’t mess it up there, roll it out further. I welcome a sane counter argument to a trial…

  • Johan Bosman says:

    As Mr De Vos is so constitutionally positive about the about the NHI act, I suggest he immediately terminate his membership at his medical aid scheme and receive his future medical benefits from the state hospitals in ANC provinces such as the Eastern Cape. Just want to remind him of the billons of Rands of claims against the Dept of Health of medical negligence and mismanagement by the incompetent and useless cadres.

    • Chris Buys says:

      I also dearly wish for Prof to provide proof that he will happily stand in line at a local clinic. It is already free and equal there.

  • Noel Soyizwaphi says:

    My understanding is that the NHI Fund will pay public and private healthcare service providers on exactly the same basis and expect the same standard of care from both. People in lower income groups will be able to consult doctors in private practice and use private hospitals, because the NHI Fund will pay for this care. If my understanding is correct, these objectives of the NHI certainly go contrary to those of the medical aid. When medical aid came to existence in South Africa, it’s main purpose was to further protect and advance white privilege. Medical aid came at the time of massive licensing of building private hospitals. It was only because of political pressure exerted employers that black people were allowed to join medical aid, something that was not easy for blacks because of legislated poor pay, before 1994. Using its expertise on seperate development, the apartheid government introduced seperatist medical aid schemes for black people (Africans, Coloureds and Indians), Bonitas, Prosano and Sanitas. It is purely on this Background that the NHI is fiercely opposed by those who still dream of “seperate development”, because its introduction means this dream remains deferred. This huge opposition to the NHI is politically motivated than what is being advanced. So, I, the “gormless voter”, support NHI 100%.

  • If not the not the ConCourt who then?

    In suggesting that the Constitutional Court might be reluctant to pronounce on the constitutionality of the NHI Act, Professor de Vos strikes a defeatist note. The fact is NHI represents a massive infringement on freedom of choice and therefore on individual liberty as guaranteed by the Constitution.

    Instead, Professor de Vos argues that it is “to be expected in a constitutional democracy” that the ANC government can make a policy choice disadvantaging “the middle-and upper-class minority” and to benefit “the working class and poor majority”.

    No! In a constitutional democracy it is not the norm for a government to adopt policies that disadvantage entire sections and communities of the population. What is the function of the courts if not to uphold individual liberty and freedom and prevent the despoliation of entire groups of people? (Incidentally, few members of medical aid schemes can be described as “upper-class”).

    The almost total elimination, by force of law, of medical aids’ right to trade – with the possibility that many such schemes would cease to exist must surely be unconstitutional. Also concerned are the choices and preferences of millions of South Africans who have chosen to freely subscribe to such schemes to cover their medical expenses. The analogy with the 2005 Constitutional Court case concerning the regulating by the state of medicine prices would not seem to be exactly appropriate.

    The concern that policy should not fall within the judicial domain is too broadly stated. Furthermore, grounds for reviewing the NHI Act emerge from a reading of the Constitution.

    Section 27 of the Constitution subjects healthcare provision, meaning it extension to cover all the population, to the availability of sufficient resources. A Public Healthcare System already exists but the same government that has presided over the looting of R1.5 trillion (Marianne Merten, Daily Maverick, 1 March 2019) now in effect wants to destroy private healthcare in the belief that this would somehow remedy the catastrophic state of Public Healthcare. Had the R1.5 trillion been available, South Africa could have had a world class Public Healthcare System with no need for the NHI.

    It is doubtful that the Section 36 limitation clause would stand in the way of a constitutional challenge. “Rights in the BIll of Rights may be limited only … to the extent that the limitation is reasonable and justifiable” (sub-section 1). The deprivation of the rights of 9 million people – who through taxation also contribute to the alleviation of the state’s healthcare burdens – cannot by any stretch of the imagination be “reasonable and justifiable”. Furthermore, there are clearly “less restrictive means to achieve the purpose” (sub-section 1 e), of better and improved healthcare for all.

    A major problem is funding the NHI. The additional taxes required would cripple the middle and lower-middle classes. The argument that aditional taxes would only have a limited impact on current members of medical aids simply does not wash as taxpayers would be overburdened whether or not they choose to remain with their (much diminished) schemes.

    The above also call into question the rationality of NHI which would be an important element in any constitutional challenge.

    Importantly, Professor de Vos recognises that there exist “valid concerns about the ability of a weak and corrupt government to fund and implement the [NHI] scheme”.

  • Roger Sheppard says:

    3rd last para is annoyingly incorrect in its surmise!The over-riding political impetus lies in the fact that the present status of health administration, is so incompetent or corrupt as to have affected the health of the poor, the poverty-stricken, and the lower middle-classes, and yet properly run this country could have had a health programme, running nation-wide, to match most places on earth.
    But, there has simply been…No Will. Why?
    This raises enormous suspicion as to the motivation for this Bill. (Political points being scored as in the melodrama: public presentation of this Bill’s signing?)
    Of course South Africans (Saffers), all, need what is their due – a magnificently managed, magnificently executed, programme of world-class medical care …FOR EVERYONE!
    Why laboure the point De Vos? It could have been world-class! Yes, it should have been.
    So, what happened? Well, ask the Director Generals. Was he/she allowed, through dilatory monitoring, to let Barag, go down, to let the JHB General fall into bad reputation, to allow billions of budgeted monies go simply unspent across years, across so many provincial budget allocations, et al!
    This could all be portrayed as part ploy – get the NHI by law, so it & and its people, both needy and givers, simply fall under govt control, as vowed by the pre-1984 ANC – to control every daily aspect of life- RSA!
    At what point does a political such decision morph into law? If folk disbelieve a law, let them challenge.
    Juslaaik!

Please peer review 3 community comments before your comment can be posted