The South African Medical Association (SAMA) on Tuesday outlined the grounds on which it will be challenging the constitutionality of the National Health Insurance Act.
SAMA is a non-statutory professional association that represents medical practitioners in the public and private sector. It reports a membership of more than 11 900 individuals.
The Association’s chief executive, Dr Mzulungile Nodikida, described SAMA’s challenge to the constitutionality of the Act as the “most comprehensive” one to date. SAMA is contesting “multiple provisions” of the Act that it believes will “severely prejudice” doctors and patients.
Nodikida said SAMA’s challenge represents “the missing voices” in the legal challenges that have been filed so far. “We represent the professionals and their patients.”
SAMA’s chairperson, Dr Mvuyisi Mzukwa, told a media briefing on 1 April that the other legal challenges focus on section 33 of the Act, which will restrict medical schemes once NHI has been “fully implemented”, or on “private sector interests”. In contrast, SAMA’s challenge is “far more extensive”.
Its legal action is driven by “the real-world implications of the NHI Act, particularly the bureaucratic and structural failures it introduces”.
Mzukwa said litigation is “the necessary step” after SAMA exhausted all the available channels for constructive input for more than a decade.
He emphasised that SAMA is not opposed to universal health coverage (UHC).
“We strongly believe in equitable, high-quality healthcare for all South Africans. However, the NHI Act risks collapsing our healthcare system rather than strengthening it. Our litigation is about protecting patients, ensuring doctors can continue to provide care, and preventing the state from implementing a dangerously flawed system that could do more harm than good.”
SAMA’s case is supported by “leading experts”, who have assessed the financial, operational, and ethical implications of NHI.
He said SAMA is committed to realising healthcare reform that is constitutionally sound, evidence-based, and beneficial to all South Africans. In this regard, he referred to the proposed healthcare framework developed by the Universal Healthcare Access Coalition (UHAC), of which SAMA is a member.
SAMA’s head of legal, Dr William Oosthuizen, said the Association is bringing its challenge now because it first wanted to find out what other opponents of the NHI Act would argue in their litigation and because it wanted to see whether any of the “constructive engagements behind the scenes” would result in changes to the Act.
But it does not appear that President Cyril Ramaphosa is prepared to entertain alternatives to the Act as it currently is, “so we are left with no other option but to bring this litigation”, Oosthuizen said.
SAMA will challenge the constitutionality of the entire Act, the merits, the substance thereof. Therefore, the appropriate forum for the challenge will be the High Court, he said.
Oosthuizen described the Act as “a wish list” and “unworkable” and maintaining otherwise is “blind ideology or arrogance”.
Impact on healthcare professionals
Mzukwa said SAMA is “particularly alarmed” by the implications of the Act for healthcare professionals.
Private and public providers must meet “impossible” accreditation standards, many of which can be fulfilled only after registration, “a paradox that makes compliance unattainable”.
South Africa’s healthcare workforce is already under “immense strain”. SAMA’s expert analysis found that a private sector surgeon currently works at 158% of normal capacity. Under NHI, the same surgeon would have to work at 368% capacity for half the income, “a scenario that is both unrealistic and unsustainable”.
He added that the Act makes no provision for insuring private doctors against medico-legal claims even though they will be required to operate within the NHI’s protocols.
Limiting access to treatment
Another area of concern is that the Act will limit access to healthcare.
Every South African will have to register as an NHI user before they can receive treatment. If they do not register, they will not be able to access even emergency medical care.
The registration process could take years to complete nationally, and one can register only at accredited primary healthcare providers. Mzukwa said.
Patients will have to seek healthcare first at their registered facility, even if that facility is overloaded or incapable of providing appropriate treatment. There is no clarity on how patient transfers will be managed.
Mzukwa said, ironically, the restriction to seeking care in one’s area of registration will undermine the principle of universal access to health coverage – the rationale for the Act. “This limitation contradicts one of the building blocks of a well-functioning healthcare system, namely robust information systems and technology.”
He said South Africa needs a universal electronic health record system that is accessible at the click of a button anywhere in the country and across the public and private healthcare sectors. Without this, the effectiveness of universal health coverage will be significantly compromised.
Medical scheme members and beneficiaries of the Road Accident Fund and the Compensation Fund (Compensation for Occupational Injuries and Diseases Act) will lose their benefits. “It will be replaced by an ill-defined, unworkable, and unaffordable NHI system. This represents a major step back in terms of healthcare access.”
In response to a question, Mzukwa said NHI can be thought of as a large national medical scheme. He said medical schemes do not employ healthcare workers, build hospitals, or buy medicines. They only purchase services.
“If you have rural areas that are without clinics, without institutions, they will remain so, even under NHI. There will be no access. It will not be universal health access; it will be urban healthcare access, because the rural areas will still be out of reach in terms of those services,” he said.
Lack of clarity on package of benefits
Mzukwa said the Act lacks clarity on what healthcare services will be covered.
According to the legal opinion obtained by SAMA, the Act contains nine different and conflicting definitions of NHI benefits.
“South Africa is embarking on a radical overhaul of its healthcare system without even knowing what it will offer to patients.”
Additionally, the procurement of medical supplies remains entirely unclear, raising serious concerns about supply chain management and stock shortages.
SAMA is also opposed to NHI’s centralisation of key decision-making powers, without any assessment of whether national government structures have the capacity to manage “this enormous responsibility”.
Mzukwa said patients’ complaints about poor service delivery will be handled by a single centralised investigative unit within the NHI Fund’s national office. “Given the scale of the healthcare system, this mechanism is wholly inadequate for the timely or effective resolution of patient grievances.”
Little faith in advisory panel
SAMA was asked whether it has been invited by the Minister of Health, Dr Aaron Motsoaledi, to be part of an advisory committee that will guide the implementation of NHI, and if so, whether it would accept the invitation.
Mzukwa said SAMA has not received an invitation.
Oosthuizen said SAMA has been trying for more than 10 years to put across its views to the Minister of Health and the National Department of Health, and it has been disregarded at every stage.
“So, we have very little faith that our views will actually be considered in a such an advisory panel. The mere fact that we haven’t been informed or received an invitation is already a strong indication of how this will go.”
He said the Act is “irrational”, incapable of achieving what it seeks to achieve, and unaffordable.
“So many sections are vague and cannot be implemented. It infringes various constitutional rights of patients, limiting their access to care. It infringes the rights of practitioners, their freedom of association, freedom to practise their profession. This cannot be fixed by now all of a sudden inviting people to be part of an advisory panel. We will constantly engage, but we need to fix the fundamentals.”
Oosthuizen said the UHAC’s proposed framework provides a way to do this, “but we need to start looking past the NHI as a solution to reach UHC”.
Demystifying SAMA’s Assertions on the Constitutionality of the NHI Act
Who is SAMA? The South African Medical Association (SAMA) is a non-statutory professional association representing medical practitioners in both the public and private sectors. It is a voluntary membership organization dedicated to serving the interests of its members in healthcare-related matters. This context is critical because, at its core, SAMA functions as a labor union for medical doctors.
With this in mind, I take this opportunity to challenge some of SAMA’s claims regarding the constitutionality of the National Health Insurance (NHI) Act; claims that have been presented as indisputable facts.
Let’s start with the numbers. South Africa has approximately 27,000 medical practitioners, including specialists. SAMA reportedly has 11,900 members, roughly 44% of the total. Given this, can SAMA legitimately claim to speak for all medical professionals? If so, who exactly are these professionals they purport to represent? Do they include all healthcare workers and their patients? If SAMA is a labor union, why involve patients in labor matters? In South Africa, labor unions are well understood to serve the interests of their members, not an entire profession or the public at large. SAMA should, therefore, speak for its members, not assume a broader representative role that extends beyond its mandate.
On the issue of accreditation, SAMA’s claim that accreditation is “impossible” lacks substance. The process has been clearly defined: healthcare providers will undergo inspection and certification by the Office of Health Standards Compliance (OHSC) before being accredited by the NHI Fund. The OHSC already inspects public and private healthcare facilities, and many, including Mamelodi Regional Hospital, have been duly certified. The accreditation step by the Fund will finalize the process, and the National Department of Health is actively establishing the necessary arrangements for its implementation. SAMA’s assertion that accreditation is unattainable is misleading, how can a process that is not yet in effect be deemed impossible?
Finally, I must address SAMA’s expectation that the NHI Act should explicitly dictate how private doctors are insured. Why should the Act single out private doctors? What about their public-sector counterparts? What about other healthcare providers under the NHI? The current system allows providers to determine their own insurance needs, why should this arrangement be altered to cater to a specific group? At its core, SAMA operates with the mindset of a labor union, advocating primarily for medical doctors, although in this instance it is presenting itself as the voice of all health professionals and patients nogal. Constituency matters, and its submission reflects this narrow focus.
There is much more to unpack, including issues related to user registration and access. However, due to time constraints and the need to provide an alternative perspective which people can read, I will conclude my response here.