President Cyril Ramaphosa signed the NHI Bill into law at 3.17pm yesterday during a ceremony at the Union Buildings. The Act will take effect on a date proclaimed by the president in the Government Gazette.
Within an hour of the president signing the Bill, Solidarity sent the government a letter stating that if it implemented the Act, the trade union would serve court documents within 10 days.
Solidarity’s deputy chief executive of legal matters, Anton van der Bijl, says the government is unable to fund NHI, and taxpayers will have to pay for it.
“The NHI is going to cause unprecedented damage to taxpayers, not to mention the South African economy. That is why the NHI must be declared unconstitutional, and this is what we will try to achieve through the courts,” said Van der Bijl.
Solidarity’s letter says NHI will face constitutional challenges for potentially infringing on the right to access healthcare services, compelling many who currently use private medical care via medical schemes to rely on an inadequate public healthcare system. This also impacts the property rights of medical schemes and their administrators, as well as the right to freedom of trade, occupation, and profession.
Civil rights organisation AfriForum also delivered a letter of demand to the president yesterday, declaring NHI to be “unconstitutional, unaffordable, unimplementable policy”.
AfriForum said it will institute a class action against the government, the president, Parliament, and the Minister of Health. The class action would allow AfriForum to address “the multitude of factual disputes” that are likely to arise from the litigation processes.
Among the other organisations that indicated this week that they will challenge the NHI Act in the courts are:
- The Democratic Alliance, whose leader, John Steenhuisen, said the DA will challenge the legislation all the way to the Constitutional Court. “Our legal team was briefed months ago already and will file our legal challenge against this devasting legislation without delay.”
- The Board of Healthcare Funders, which represents medical schemes and administrators, said it would “immediately institute legal proceedings”.
- The Health Funders Association, which also represents medical schemes, said it is “well prepared to defend the rights of medical scheme members and all South Africans to choose privately funded healthcare”.
- The South African Medical Association, which represents doctors, said it will “fight for the protection of our healthcare services in [the] relevant courts”, and its legal team is preparing to launch the challenge.
- The South African Health Professionals Collaboration, which represents more than 25 000 public and private sector healthcare workers, said: “We have no doubt that the NHI Bill will be challenged in the courts, and we are currently exploring all our options in this regard.”
Cas Coovadia, the chief executive of Business Unity South Africa, said a legal challenge to the NHI Act is “an option”.
Interviewed by SAfm Market Update, Coovadia said: “We have consistently said that if we need to take the legal route to enable a fit-for-purpose goal that would actually bring about a situation where both the public and private sector can work together towards universal healthcare – and if the courts are the only route for that – then we will certainly consider that. But again, it depends on what the president says tomorrow [Wednesday].
“If the president says he’s signing the Bill into law, but that he’s still open to engagements about how we promulgate this, and how we implement this – and if there’s space in those engagements to actually implement the Bill in a way that addresses the concerns we have – then we are more than willing to engage. But the legal route has got to be an option.”
‘Rolls-Royce system of healthcare’
Speaking before the signing, Ramaphosa emphasised that NHI will not be an “overnight event” but will be implemented in phases.
Addressing those he termed nay-sayers, Ramaphosa said: “Fear not, I say, fear not.”
According to the president, the challenge facing NHI is not a lack of funds but the misallocation of funds, which favours the private healthcare sector at the expense of public healthcare needs. NHI will require an “innovate approach” to funding based on the concept of social solidarity (the rich and healthy subsidise the poor and sick). He said the financial hurdles can be overcome with “careful planning, strategic resource allocation”, and a commitment to achieving equity.
Ramaphosa did not provide details on how the scheme will be financed. He said only that NHI will be funded through a comprehensive strategy that will combine various financial resources, including additional funding and reallocating funds already in the health system.
He said the commitment to universal healthcare is a global undertaking, and those who want to maintain the current “fragmented” healthcare system are “out of line” with the global trend.
The NHI Act will put in place a system that will provide equal access to healthcare irrespective of a person’s economic circumstances. No individual must bear an untenable financial burden when seeking healthcare, Ramaphosa said.
“What we are trying to build is a Rolls-Royce system of healthcare for all South Africans […] It aims to ensure that we complement the [private and public] systems and reinforce them with each other.”
A recurring message in the president’s address was that NHI is about achieving equity and equality, as was the struggle against apartheid. He said NHI had been 81 years in the making, going into detail about its origins in the demand for the establishment of free medical and health services in the ANC’s African Claims document in 1943.
Health Minister Dr Joe Phaahla told a media conference after the signing that the “actual” implementation of NHI will take place from 2026, with the implementation of programmes and the purchasing of services by the NHI Fund. However, there will be an expansion of the state’s primary healthcare services during the first phase, from 2024 to 2026. The government plans to enrol GPs and provide services such as audiology at clinics.
Responding to a question about possible litigation against the NHI Act, Phaahla echoed Ramaphosa’s remarks that South Africa is a constitutional democracy, and people have a right to approach the courts.
And – along the lines of Ramaphosa’s statements on Tuesday – Phaahla said some of the organisations that oppose NHI represent “vested interests” that benefited from apartheid and “the lack of radical transformation” in the healthcare sector since democracy.
‘We are going to have equality’
On Tuesday, Ramaphosa told an ANC Progressive Business Forum luncheon in Centurion that NHI was opposed by “well-to-do and rich people”.
He went to on say: “And this is what often happens. The haves don’t want the have-nots to benefit from what they have been having. And we are saying, through NHI, all our people must have equality. There must be equality of healthcare in our country. And I know it drives fear into the hearts of many, just like for all our people getting a vote drove the biggest fear in hearts of white people in this country. They were terrified. They were so afraid because they thought, when everybody gets the vote, it means that the privileges that we’ve always had are now going to disappear.
“And let me tell you, my good friends, we are not a reckless government. We are a government that, yes, as some of you said on this platform, is focused on building a nation, on reconciliation, on making sure that there is equality fully in our country. We cannot and must not go on with ‘new South Africa’ when we still have inequality in some areas of life. And healthcare, which is the most important area of life of anyone, is the one area where we need equality. And believe you me, we are going to have equality. Whether people like it or not, that’s what we are going to have.”
Asked whether the NHI Act would withstand legal scrutiny, Ramaphosa said: “Many laws are often challenged, but our duly elected people have voted for that piece of legislation, and that is the democratically elected representatives that we all have. So, in their wisdom, they have voted for that piece of legislation, and whoever is unhappy has a number of avenues.”
Chief whip: the Act will be amended if necessary
The Mail & Guardian reported that the ANC’s chief whip in the National Assembly, Pemmy Majodina, urged those opposed to NHI to give it a chance, saying that, if necessary, the governing party could amend the NHI Act.
The report quoted Majodina as saying on Tuesday that the current healthcare system was too expensive for most people, and universal health coverage would assist the government and bring equality to all South Africans.
“And, therefore, those who still doubt and … panic, they must just calm down. This is their government. When the need arises, we can then amend if there are certain things that make the Act not implementable. But, at the moment, let’s start it,” she was quoted as saying.
According to the report, Majodina denied that Ramaphosa was using the legislation as a ploy to win votes for the ANC in the general election, saying his previous statements on it had been misinterpreted.
“When the president said he was finding a pen, the president was saying, ‘I’m doing more consultation with other people who have raised concerns.’ [The] president has completed that process of consultation. It is the time to sign,” she was quoted as saying.
“I want to urge all South Africans, let’s put it to the test. Then if there are things that are not going correct, we are here in South Africa. We are not going anywhere. There is Parliament that can still revisit [it] if there is something that is fundamentally flawed in the Act.”
Key issues in constitutional challenges
Costs and benefits will be the two key issues in constitutional challenges to the NHI Act, according to Neil Kirby, director and head of healthcare and life sciences at Werksmans Attorneys.
Kirby said South African have “no real idea” of the benefits they will buy from NHI.
“We have an inkling that it could be primary healthcare benefits to start. And we know that maternity benefits as a defined benefit, along with emergency care benefits, are going to be moved into NHI away from medical schemes – so we have an indication, but nothing that you can say thank goodness for the NHI,” he said.
He said the NHI Act needs to be seen in the context of three primary themes.
“One is the process of bringing this into law. We need to ask if the process has been fair to those involved, and a proper appreciation of the implications for the stakeholders that are interested and affected by this legislation. And in that process, have they been heard and have what has been said has been taken into account when putting this all together?”
The second is the rationality approach.
“How much is this going to cost? And can we as a country, whether the cost is R140 billion to start with and R700bn at the end, can we afford it? Can we afford to have national health insurance, along with other national priorities and policies that are equally as important as healthcare, education, security, and infrastructure?”
The third is the constitutionality of the Act.
“Certain people are going to say absolutely, it’s constitutional. It’s completely constitutional. It solves the problem that so many South Africans face of a lack of healthcare. And then you have detractors, potentially like me, who will say no, no, I think we I think it’s a bridge too far. I think you’ve got too much emphasis in the wrong spots here.”
Another issue is that of South Africans being able to choose where they procure their healthcare – and if they can afford NHI and private healthcare.
“There’s no requirement for anyone to join the NHI. You can choose to do that.
“South Africans are required to pay for NHI through a mandatory pre-payment system in exchange for which you receive healthcare services as defined free at the point of care for the services. However, if you don’t join the NHI, are you going to be inclined to pay your medical scheme premium too, which may be too expensive for many people?
“It may very well be that you don’t have a choice: you are going to have to join the NHI because you can’t afford both the NHI mandatory pre-payment and the voluntary medical scheme contribution.” Kirby said.
