The Board of Healthcare Funders (BHF) welcomes today’s North Gauteng High Court judgment on the National Health Insurance Act. This is a victory for the rule of law, and a step towards exposing the unconstitutional aspects of the Act.

The ruling confirms that the President’s decision to assent to and sign the National Health Insurance (NHI) Bill into law is subject to review in the High Court. Furthermore, the judgment obligates the President to provide his full record of the proceedings that led to his decision to sign the Bill into law – in line with Rule 53 of the Uniform Rules of the Court. The High Court has directed President Ramaphosa to furnish this record within ten calendar days of today’s ruling.

This ruling marks an important milestone in the BHF’s ongoing legal challenge against the NHI Act. It reaffirms the constitutional principle that all public power is subject to the rule of law and that no office-bearer, including the President, is above judicial scrutiny.

The BHF launched its main review application on the basis that, by not referring the NHI Bill back to Parliament, despite receiving numerous submissions (including several from the BHF), the President failed to fulfil his constitutional duty under section 79(1) of the Constitution. Instead, the President proceeded to sign the Bill into law in May 2024, setting in motion legislation that we contend is vague, unaffordable, and ultimately unworkable.

However, before the main review application could proceed, the President and Minister filed notices raising two questions of law. The first question raised is whether only the Constitutional Court can decide if the President has failed to fulfil a legislative obligation. The second question raised is whether the President’s assent and signature of a Bill can be reviewed and, if so, whether the President is obligated to provide the BHF (as the applicant) with his record decision.

Today’s judgment has confirmed that the High Court does have jurisdiction to hear our main review application. The court decision also affirms the BHF’s right, as the applicant, to receive the full record of the President’s decision-making process, which we believe will demonstrate that he ignored compelling legal and policy objections submitted by multiple stakeholders across civil society, business, and the healthcare sector.

We view the notices filed by the President and the Minister of Health as clear attempts to delay the progression of the main review application. The court’s decision to dismiss those preliminary objections and to compel the President to produce the record of decision is therefore a meaningful step forward in our pursuit of accountability and constitutionally sound governance.

The BHF remains steadfast in its commitment to achieving universal health coverage. However, we believe that this goal must be pursued through a practical and inclusive multi-payer model that preserves the strengths of both the public and private healthcare sectors. The NHI Act, as it currently stands, threatens to erode healthcare access for millions, including the over 9.7 million lives currently covered by medical schemes, of which two-thirds are from previously disadvantaged communities.

We remain committed to working with all stakeholders who are committed to developing an affordable, workable and constitutionally compliant framework to achieve quality universal healthcare for all.

 

About the BHF:

The Board of Healthcare Funders (BHF) is a non-profit company that works in the best interest of an effective and sustainable healthcare for all. It represents members in seven countries across Africa. For more information on the BHF and its members, please visit: https://bhfglobal.com