Business lobby group Sakeliga has challenged Health Minister Aaron Motsoaledi’s bid to halt constitutional challenges to the National Health Insurance (NHI) Act, filing a conditional counter-application to the High Court last week and saying that if legal challenges to the NHI were paused, implementation of the NHI should also be paused.
News24 reports that Motsoaledi wants to halt six constitutional challenges to the Act, citing the need to conserve public resources while the procedural challenges are resolved in court.
Business Day reports that in August, the Minister asked the court to consolidate all of the cases that had by that stage been launched in the High Court and suspend all challenges to the constitutional validity of the legislation until the legal attacks on the President’s decision to sign the Act had been resolved.
The Minister argued that consolidating the cases would be more efficient and save money.
The President’s assent to the legislation has been challenged by the Board of Healthcare Funders and the SA Private Practitioners Forum.
Sakeliga’s response, filed last week, opposes the attempt by Motsoaledi to stay proceedings, but asks the court to interdict implementation of the NHI should the stay be granted.
It said this would “shield the government’s deeply flawed Act from judicial review, while inflicting ongoing harm on the public, taxpayers, healthcare services and the economy”.
The stay application would indefinitely suspend judicial challenges to the NHI Act while implementation of the controversial legislation would proceed.
“This tactic amounts to an abuse of process by the state and a violation of constitutional accountability,” Sakeliga argues.
Sakeliga filed its court challenge on 27 August, joining several organisations opposing the legislation.
It now wants to legally combat government’s use of “procedural tactics” such as seeking to stay legal proceedings to delay the various constitutional objections to the Act, it said.
The Health Minister’s attempt to stay legal proceedings undermines the Constitution and the rule of law, it added.
“An indefinite stay would effectively bar serious constitutional challenges, allowing the executive to proceed unchecked with implementing deeply flawed legislation, while depriving citizens of their right to timely judicial review of state power,” the lobby group argues.
It describes the proposed stay as prejudicial and unnecessary, as it hinges on resolving unrelated procedural matters raised by other applicants. Sakeliga says its constitutional challenge addresses substantive flaws in the NHI Act that stand independently of those issues, reports News24.
“The Minister and President are using delay tactics to postpone judicial review while implementation proceeds,” Sakeliga argues.
This constitutes an abuse of both executive power and court processes, enabling potentially unconstitutional conduct to continue causing harm. The stay would serve no purpose except to buy the government more time to implement and entrench an unaffordable and harmful scheme.
It also says this harm would later have to be reversed, should the constitutional challenges to the NHI prove successful.
“Sakeliga’s broader case against the NHI Act remains one of several major challenges brought by civil society, business organisations, and healthcare stakeholders to prevent the state from implementing a reckless and irrational policy at enormous fiscal cost to taxpayers,” the lobby group says.
“It is not the constitutional challenges to the NHI that should be halted, but the implementation of the NHI itself.”
See more from MedicalBrief archives:
Unpacking the BHF’s court challenge against NHI
NHI hit with two more legal suits
NHI critics push back against state’s ‘delaying tactics’
Ramaphosa granted ConCourt hearing for NHI appeal