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Between 5 and 7 May 2026, the Constitutional Court heard a combined challenge to the National Health Insurance Act, brought by the Board of Healthcare Funders and the Western Cape government. Both argued that Parliament had run a “tick-box” process – that submissions had been received and largely ignored, that in at least two provinces the National Council of Provinces had breached its own procedures, and that the public had not been given enough information to engage meaningfully with what was being decided on their behalf. The state argued the opposite: that consultation had been extensive, and that engagement does not mean agreement. Justice Steven Majiedt raised a related concern about financial mismanagement, citing R2-billion lost to “spillage” at a single hospital.
Judgment was reserved. It may take months.
It is a fair question. But it is not the only one.
Because outside the Constitutional Court, another week passed inside clinics and hospitals already buckling under the weight of a fractured system.
Another week for the nurse improvising around shortages.
Another week for the junior doctor learning, too early, that emotional distance is sometimes the only way to survive impossible working conditions.
Another week of sick people triaging themselves.
Another week of illnesses once considered manageable becoming catastrophic because systems have stopped responding to small suffering before it becomes large.
That is the thing about prolonged institutional decline. It does not only weaken infrastructure. It reorganises emotional life. People slowly adapt themselves to diminished expectations of care.
And one of the quieter costs of this litigation is that it allows the deterioration outside the courtroom to become background rather than urgency.
But the courtroom and the corridor are not separate stories. They are the same story unfolding at different scales.
There is a version of this story in which there are only two parties: a government trying to build something, and an industry trying to stop it. That version is convenient for both sides. It is also not true.
Both have squandered this moment. Not equally, not for the same reasons, and not with the same consequences. But both are implicated.
I begin with the Board of Healthcare Funders (BHF).
The BHF speaks for medical schemes, their administrators and managed care organisations. Behind it stands a broader constellation of private healthcare interests that, for decades, has shaped the terms on which reform could proceed. This is not one organisation acting on a procedural point. It is an industry defending an arrangement.
The arrangement is straightforward. South Africa spends roughly 8.5% of its GDP on health, yet more than half of that expenditure serves the minority able to afford private medical aid. The majority rely on a public system carrying the larger burden of disease with fewer resources, fewer staff and increasingly frayed infrastructure.
This is not simply dysfunction. It is a settlement.
The BHF is now defending the constitutional right to be heard. The right is real. The procedural concerns before the court are not fabricated. But neither should the failures of the state allow us to romanticise the political economy of private healthcare itself, an industry shaped not only by care, but also by profit extraction, market concentration and incentives that have long distorted equitable access to healthcare. These distortions have long attracted public scrutiny, including through the Competition Commission’s Health Market Inquiry and anti-corruption investigations into fraud, collusion and abuse across the healthcare sector.
The scale of what the sector extracts is not abstract. As documented in Oxfam South Africa’s report, The Right to Dignified Healthcare Work, between 2016 and 2019 the country’s three largest private hospital groups paid R19.2-billion to shareholders – more than the R11.7-billion they earned in profit over the same period. Meanwhile, the nurses and community health workers who hold the system together laboured under 12-hour shifts and insecure contracts, on wages so distant from executive pay that a private hospital CEO earned in five days what a nurse earned in a year.
The industry now speaking the language of democratic participation has been heard throughout the post-apartheid era, extensively and at length, and has consistently shaped and resisted reform efforts in ways that preserved the arrangement from which it profits.
The National Health Insurance (NHI) Bill was first proposed in 2011. We are now in 2026. Fifteen years of consultation, contestation, redrafting and litigation have produced an Act whose implementation remains suspended pending a judgment that will likely produce further challenge, and further years of delay.
Every delay is materially a victory for those whose interests are advanced by it.
The interests surrounding the NHI are so fierce and determined that one would think this is a battle over the life of the nation itself. In some ways it is. In one of the most unequal societies in the world, the expansion and redistribution of healthcare resources are a life-and-death question for the majority of South Africans.
What is being defended in the language of procedural rights is an unequal healthcare arrangement that decades of process have helped preserve: one in which the wealthy remain overserved, the poor remain underserved, and attempts to redistribute care encounter organised resistance from those with the greatest capacity to resist it.
None of this is accidental. It is what strategy looks like when it succeeds.
The argument is intelligent. It is also, structurally, a defence of a healthcare arrangement in which the suffering of the poor remains the precondition for the profitability of the rich.
It is said that when elephants fight, it is the grass that suffers.
And the grass – the patients in corridors, the workers holding broken systems together, the families waiting for care – is suffering.
The harder case is the state’s. It held the larger obligation, still holds the levers of repair, and broke the larger trust.
This is a state that, in its earlier years, dismantled a fractured apartheid health system, built one of the world’s largest public ARV programmes and significantly reduced child and maternal mortality in the decades after 1994. The trust now being eroded was built on real ground.
And what the state did to this process is not unique to this Act. It is part of a pattern South Africans have been living with for nearly two decades.
In Doctors for Life, the Constitutional Court invalidated legislation after Parliament failed to hold meaningful public hearings. In LAMOSA, it struck down amendments to land restitution legislation after communities were not properly informed or enabled to participate. In Mogale, it invalidated the Traditional and Khoi-San Leadership Act after inadequate consultation with affected communities.
And now the NHI.
The Treatment Action Campaign and SECTION27 made submissions at every stage of the process. Their account is that MPs reduced the submissions to a single question: were they “for” or “against” the Bill. That is what was done to organisations that spent decades giving practical substance to the constitutional right to healthcare itself.
The pattern is not incidental. It is a description of how the South African state has increasingly come to administer democracy.
Hearings are scheduled. Notices are published. Submissions are received. The forms are observed. And then legislation emerges bearing little evidence that what was said meaningfully informed what was decided.
The cost has never been borne evenly.
Rural land claimants. Communities under traditional authority. Patients in underresourced public clinics. Women seeking abortion rights. Again and again, the state has failed in ways whose costs fall most heavily on those with the least power to insist on being heard. This is the political economy of how this state has decided which constituencies it can afford to disappoint.
This is not only a failure of procedure. It is a failure in the administration of democratic accountability itself. And meanwhile, time passes.
These failures have also unfolded under prolonged fiscal constraint and austerity that have steadily hollowed out the public health system. The constraints are not purely external. They are also a series of state choices, made and remade since 1996.
German physician Rudolf Virchow once wrote that medicine is a social science, and politics is nothing else but medicine on a large scale.
It is a beautiful sentence, but it assumes a politics still capable of organising collective care.
That is not where we are.
The political project of universal healthcare in South Africa has not been enlarged. It has been miniaturised. The promise of the post-apartheid state – that a public health system would carry the dignity of the poor as a constitutional obligation – has been reduced to a fund whose proclamation is suspended, an Act whose implementation is delayed, and a court case whose judgment is reserved.
The NHI now sits suspended in a web of litigation, distrust, institutional weakness and private interest.
And so the work that politics was meant to do has been displaced downward.
The decisions about who suffers, who waits and who receives care are increasingly being made at the clinic door. The nurse deciding which patient can wait longer. The administrator deciding which ward closes this week. The community health worker deciding which household she has time to reach.
Politics, in Virchow’s sense, was meant to organise health collectively. What we have instead is medicine becoming politics on a small scale: the intimate, exhausting labour of managing the consequences of a larger political failure.
Earlier this year, the Motherwell Community Health Centre closed after repeated break-ins. The burden did not disappear. It moved upward into hospitals already overwhelmed by referral loads and underresourcing. Dora Nginza. Livingstone.
Institutions where healthcare workers continue holding the line inside systems that ask more of them than any human being should reasonably be asked to carry.
Those of us who grew up around some of these hospitals knew the nurse aunties who worked there. We knew how much they cared about their patients. We also knew the stories of people who went into those hospitals and did not come back, not always because it was their time to die.
What is happening in those corridors is the political work the country has refused to do.
The clinician carries the burden of a politics that has abandoned its responsibilities.
The patient carries the burden of a society that has agreed, by its silence, that this is acceptable.
There is a phrase I keep returning to as I watch this unfold. I hesitated over it because it sounds softer than the reality it is trying to name.
But perhaps the softness is part of the point.
What is shrinking in this country is public tenderness.
Not kindness or sentimentality, but something closer to attention. The willingness to register another person’s suffering as real, and to let that recognition alter what we do.
Public tenderness is what a society institutionalises when it decides that care should not depend entirely on wealth, luck or private escape routes. A functioning clinic is public tenderness made operational. So is an ambulance that arrives. So is a hospital with enough staff to treat illness before it hardens into catastrophe.
The nurse aunties of Livingstone are public tenderness.
The community health worker still walking her route is public tenderness.
The doctor in the emergency room who has not yet stopped fully registering what she is seeing is public tenderness.
They are holding up, in their own bodies, an architecture the rest of the country was meant to help build.
It is shrinking even there.
It shrinks in the moral injury of healthcare workers learning to harden themselves in order to survive.
The hardening is not a failure of their character. It is what their character has cost to preserve.
It shrinks in the patient who has learnt not to come in early because the system is no longer equipped to meet suffering before it becomes crisis.
It shrinks in the language we use. A country that once spoke about reconstruction now speaks about “service delivery” – a phrase that imagines citizens not as participants in a shared democratic project, but as recipients waiting for systems acting upon them from somewhere else.
This is what the erosion of public tenderness looks like – not a single act of abandonment, but 1,000 small subtractions of attention.
The erosion of public tenderness has not unfolded evenly across society.
The middle class did not withdraw from the public sphere because it stopped caring. It withdrew because the public sphere became too unreliable to entrust with what people could not afford to lose – their children’s education, their healthcare, their safety and their electricity.
The withdrawal was rational. But it carried political consequences.
A society increasingly organised around private escape routes slowly loses collective pressure for public repair.
When the harshest consequences of public decline can be partially escaped, its erosion stops registering with the same urgency.
The people most able to reach the courts, Cabinet and Parliament are increasingly insulated from the corridors where the cost of delay is paid.
And so suffering becomes administratively distant.
We know the queues are there. We know the corridors are there. We know the exhausted healthcare worker finishing another impossible shift is there.
But for those South Africans able to avoid those systems, the suffering is increasingly encountered at a distance: through headlines, statistics and periodic outrage rather than through shared institutions and shared vulnerability.
There is a word for what happens to a country living like this. Numbing.
We are numbing to another hospital story. Another clinic closure. Another delay. Another hearing.
Every time we register these things as normal, the numbing deepens.
It is not a single decision, but a habit being learnt in real time.
The NHI, in its current form, may survive the courts or it may not. But the larger question facing South Africa will remain either way.
Can this country still build systems organised around the idea that the poor should not carry abandonment on their own bodies?
Can we still imagine care as a collective obligation rather than a private commodity?
We cannot allow the future of healthcare in this country to become a technical and procedural battle between entrenched private interests and a state that has eroded public trust.
At stake is how millions of people live and die.
Nor can the burden of defending universal healthcare continue to fall on exhausted healthcare workers, poor communities and social movements that have been holding the line for decades.
The nurse aunties stepped in.
Community health workers stepped in.
Families have stepped in for years, carrying burdens that institutions were meant to carry collectively.
The question is whether the rest of us, particularly those with political, economic and social power, will continue building a country that survives only because those already carrying the heaviest burdens absorb the cost of its failures.
Another week has passed. Another one is beginning.
The judgment, when it comes, will not answer that question for us.
That answer is being shaped already, in what each of us decides to keep seeing. DM