ConCourt to hear fresh challenge to NHI Act

Added: 2026-05-07

[00:00:00]The Constitutional Court's will hear the Board of Healthcare Funders and the Western Cape government's applications challenging the NHI Act tomorrow and on Wednesday.

[00:00:12]The board argues that Parliament failed to allow proper public participation before passing the bill. Joining us now to discuss this is Professor Alex van den Heever from the Wits School of Governance. A very good afternoon um to you, Prof. Thanks very much for your time. Often, what has observed over the years is when people differ sharply or oppose um a piece of legislation, this is one of the most cited uh um uh reasons that the consultation process was not sufficient when more often, it's usually because uh people just differ or oppose the legislation.

[00:01:01]So, the So, effectively, there are three grounds of challenge that are being considered before the courts. So, the first one that's being considered now is it it does deal with the procedural aspects of the legislation, but largely focus not on the overall consultation process, but on the legislative the process at the level of the legislature. And in particular, the NCOP process.

[00:01:26]So, in terms of the Constitution, there is a valid challenge to any piece of legislation if the process the parliamentary process was nothing more than a tick-box exercise. Which means that there is a an an this would be the how people would interpret the Constitution but is that the the legislative process can't just be a um just just >> [laughter] >> you know, taking submissions and then and then take no consideration of them.

[00:01:54]There must be some substantive focus on what was submitted. So, part of the arguments that considered was or not Parliament actually materially considered the submissions. Um and took them into account. And that's one part of it, which is the public participation process. But it's not only the the Board of Healthcare Funders, there's also the Western Cape Provincial Government that is challenging it on provincial procedure. Because they were formed part of the NCOP process and they have argued that they were not properly included in the procedurally in the conclusion of the NCOP process itself.

[00:02:34]And so, the Constitutional Court will decide on that. And if the Constitutional Court uh agrees with the applicants, it essentially will result in the legislation effectively being essentially removed and potentially sent back to Parliament to correct the anything that was wrong in the process.

[00:02:58]So, it could actually result in the act becoming a bill again. And then requiring for the process to be concluded properly.

[00:03:07]Now, how easy or difficult, Prof, is it going to be? I mean how do you how do you measure or or approve that inputs were not meaningfully considered or um they didn't influence the the final legislation?

[00:03:29]I think it will go on the facts. The evidence that is probably being presented is that from the time of submission and the processing of those submissions, there was was clearly not insufficient time to even look at them.

[00:03:42]And they were of sufficient complexity that it would have required some proper consideration.

[00:03:48]The In the case of the Western Cape government, I I expect one of their arguments is that they um they were they actually requested they they they wanted substantial amendments to the legislation and they were not heard.

[00:04:02]In essence, they were asked for an extension to the NCOP process, which was turned down. And then they were effectively allowed into the process and then immediately a decision was made to pass the legislation. So, they would argue that there was absolutely no reasonable way in which the NCOP could have properly considered their inputs.

[00:04:21]So, it comes down to a logistical issue.

[00:04:23]Was it actually feasible for these inputs to have actually been properly considered? And you'd also want to have some evidence of how you considered them cuz typically, that would be in the debates, in the way in which people went through the legislation. But if it gets argued that in essence, there was a political process to kind of ram it through by a particular point in time, then it it could be argued that uh that basically, the inputs of both the public and and a province was completely ignored.

[00:04:56]Well, Parliament of course, I mean begs to differ. They believe that um uh the BHF application is without merit and that the things they contend when done properly were in fact done properly.

[00:05:13]Well, I guess they would have to argue that but that's the case they would have to make um in court. Um if they didn't have that case, it would be improper for them to be participating in the court process.

[00:05:25]So, they would have to now put up their argument. And and I guess we will hear what their arguments are in the next 2 days.

[00:05:33]Um but this is one of the applications. I mean, the next application deals with whether the president should have assented to the legislation and whether they whether they acted constitutionally.

[00:05:44]There's already been a court decision on that in the Pretoria High Court.

[00:05:48]And and effectively, it was appealed to the Constitutional Court. So, that will be heard if this if this matter succeeds for Parliament, then that matter will be heard. If this matter succeeds for BHF and the Western Cape government, in essence, all the other cases fall away.

[00:06:06]So, the implications are huge.

[00:06:11]They are and they have a big impact on on how things proceed forward, but it it won't necessarily end the deliberation on this this kind of reform. But in essence, it if it goes back to Parliament, it's a different Parliament to the one that passed the legislation.

[00:06:26]Different processes likely to ensue. And it's it's unlikely that it will come through you know, it it will go through Parliament in the same way it did before.

[00:06:35]But in essence, they would have to correct the substantive issue of actually engaging in a in a detailed technical matter with the inputs that were made and not merely rush things through.

[00:06:47]One of the questions and the queries originally was whether Parliament in fact had the technical capacity to engage with many of the inputs that were made. And so, that it also becomes an issue. And that a way of avoiding that was just to rush things through and and just basically say, "Well, we we we had hearings." So, in essence, a proper process will be a very interesting one if that's what the court decides.

[00:07:12]Well, it's going to be interesting cuz those sentiments have been expressed before in other areas like for example, um IT and and and and other areas of of our life. In other words, the question of whether the Parliament does in fact have the technical uh expertise to actually deal with some of these often complicated issues. But I'll let you go um Prof. The BHF in previous conversations has been at pains in trying to make the distinction or say um to journalists and everyone else that this case isn't essentially about a challenge to the principle of universal health coverage.

[00:07:57]Yes, that's that's technically correct.

[00:07:59]In essence, none of the parties in none of the stakeholders in uh the NHI discussion have opposed the idea of universal health coverage in South Africa. Everybody is basically in support of a rights-based framework. But the question is how is that to be structured properly? And is it built on the on the existing foundations or do you do you shatter the existing foundations and create a completely new system from nothing?

[00:08:26]Um and those become the the sort of the logical debates. The question of how practically to realize universal health coverage in a productive way going forward is in essence the conversation that South Africa probably needed to have. It didn't have it because there was just the assumption that NHI is what we're going to do going forward.

[00:08:45]Technically, South Africa has universal coverage at this moment, but a very imperfect version of it because everybody is covered one way or another.

[00:08:53]But there are clear flaws in both the public and the private systems. And the arguments are really about how you would credibly address the the weaknesses in both the public and the private systems.

[00:09:04]And part of the argument has been that the NHI process basically doesn't deal with these problems in both the public and private systems and and effectively is unimplementable and may result in a continuation of our flawed system. So, that's that's the nature of the argument being presented by a lot of the groups.

[00:09:23]Professor Alex van den Heever, let me thank you very much for your time and insights. Really appreciate it.

[00:09:29]But then we discuss matters of course before the courts tomorrow. The uh Board of Healthcare Funders challenging the NHI for reasons the court is going to hear tomorrow.