Trade union Solidarity and the Board of Healthcare Funders (BHF) have filed papers in the High Court challenging the National Health Insurance (NHI) scheme.
Solidarity filed court papers on 24 May, and the BHF filed its papers on 27 May.
The employee organisation said the serving of the court papers came after President Cyril Ramaphosa did not withdraw the legislation before the deadline of 23 May set by Solidarity’s legal team.
In its court papers, Solidarity urged Ramaphosa not to bring the NHI Act into force, because it is “technically flawed”, depriving it of its legality.
According to Solidarity’s founding affidavit, the NHI Act is unconstitutional because it threatens medical scheme members’ access to healthcare. Section 27 of the Constitution obliges the state to expand access to healthcare, but it also imposes a duty on the state to avoid retrogressive measures.
The feasibility and sustainability of NHI is dependent on a Money Bill that is yet to be introduced and passed by Parliament. “All evidence has shown that such a Bill is not feasible and will have disastrous consequences for the economy,” Solidarity’s deputy chief executive for legal affairs, Anton van der Bijl, said in the affidavit.
Solidarity also argued that the public and private healthcare systems enable South Africans to access universal healthcare. But this has been compromised by failures in the public healthcare system.
It said the Act does not make it clear whether private healthcare providers not contracted with the NHI Fund will be prohibited from rendering healthcare services to the public.
“The adoption of legislation that mandates the assumption of responsibility for the purchase of all healthcare services by the state (through the NHI Fund) without a sustainable funding model cannot possibly achieve the stated governmental purpose,” Van der Bijl said.
He contended that the NHI scheme created under the Act is vague and thus unconstitutional. The rule of law, enshrined in the Constitution, requires laws to be written in a clear and accessible way.
“Central to the vagueness concern is section 33 of the NHI Act, which allows for the Health Minister – at his or her discretion – to make a declaration on when the NHI is ‘fully implemented’, by consequence of which medical schemes will then only be allowed to provide ‘complementary’ cover,” said Van der Bijl.
In an interview with Bloomberg Television on Tuesday, Finance Minister Enoch Godongwana said Solidarity’s court application “misses a number of points”.
“For instance, it talks about procurement which is unconstitutional. Secondly, it talks about there’s no Money Bill. I table a Money Bill every year, so there’s more politics than fact,” he said.
Godongwana said the government will focus on two aspects of NHI over the next two years. First, building the institution, which includes establishing and registering the NHI Fund in terms of the Public Finance Management Act and staffing the entity.
Second, a pilot project, run across the nine provinces, will ascertain how to purchase healthcare services from public and private providers. This project will be financed from the existing budget, he said.
The BHF, which represents some of the country’s biggest medical schemes, filed papers on Monday asking the High Court in Pretoria to set aside Ramaphosa’s decision to sign the Act.
The BHF is seeking a full record of the president’s decision-making on the legislation. The organisation expects these records will show that Ramaphosa received several submissions advising him that the NHI Bill was unconstitutional and explain the basis on which he disagreed with these submissions and concluded he had no reservations about the constitutionality of the Bill before signing it.
Section 80 application
Meanwhile, in a statement on Tuesday, Solidarity said political parties belonging to the Multi-Party Charter intend to bring an application in terms of section 80 of the Constitution to declare the NHI Act unconstitutional.
Under section 80, members of the National Assembly may apply to the Constitutional Court for an order declaring that all or part of an Act is unconstitutional. The application must be supported by at least one-third of the members of the National Assembly and must be made within 30 days of the date on which the president assented to and signed the Act.
Solidarity hosted an “NHI crisis summit” in Centurion on 28 May. The summit was attended by representatives of the African Christian Democratic Party, ActionSA, and the Freedom Front Plus, as well as AfriForum, Sakeliga, the Free Market Foundation, and the Institute of Race Relations.
It said the political parties and organisations represented at the summit indicated their intention to support each other’s actions against the NHI Act – be it through litigation, political processes, or civil pressure.
