Two new legal suits have been lodged against the NHI in the past week, one taking aim at MPs over alleged inadequate public consultation, and another challenging the affordability of the scheme.
The Board of Healthcare Funders, in its latest action, is targeting MPs and asking the Constitutional Court to declare the NHI Act unlawful and invalid because Parliament failed to conduct a proper public consultation process. And business lobby group Sakelige, yesterday became the latest and seventh organisation to launch legal action against the Act, asking the High Court to declare it unconstitutional and invalid.
Business Day reports that the BHF has also, previously, issued another challenge in the High Court against President Cyril Ramaphosa’s decision to assent to the Act.
Now it is focusing on Parliament, accusing MPs of failing to meet their constitutional obligation to ensure meaningful public participation, and saying they made no material changes to the legislation, despite extensive input from numerous stakeholders, including the BHF.
It argues that both houses of Parliament conducted a “tick-box” exercise, using their ANC majority at the time to muscle through deeply flawed legislation.
Critical issues raised during the public participation process, including what it would cost and how it would be financed, and what healthcare benefits NHI would cover, were not resolved.
Nor did Parliament seek to clarify the future role of medical schemes and provincial Health Departments, the BHF says in its Constitutional Court application, filed this month. The adoption of the Bill was “therefore irrational”.
“Parliament enacted a law without any reasonable understanding – by itself or anyone else – of how it would function in practise or achieve the improved healthcare access it claims to provide, deferring all crucial mechanisms to be decided by others at some future date,” said BHF MD Katlego Mothudi in court papers.
Parliament’s failure to interrogate the financial implications of the Act was irrational and in effect gives the scheme a blank cheque, he added.
The Bill was passed by the National Assembly in June 2023, the National Council of Provinces (NCOP) approving it in December 2023 and the President assenting to it six months later.
It was passed despite warnings that the scale of the tax increases required to fund it was unfeasible, and without updating the financial modelling conducted for the NHI green paper in 2010, Mothudi said.
Irrational
The BHF cites 24 respondents, including the Speaker of the National Assembly, the NCOP chairperson, the President, the Health and Finance Ministers, the Health Director-General, the Speaker of each provincial legislature, and all nine Health MECs.
Parliament’s spokesperson, Moloto Mothapo, said Parliament was considering its options.
The BHF’s challenge to Parliament’s public participation process is not affected by the Minister’s “stay and consolidation” application against the five other parties that have attacked the NHI Act in the High Court.
These include trade union Solidarity, the Health Funders Association, the Hospital Association of SA, the SA Medical Association and the SA Private Practitioners Forum.
The Minister has asked the court to consolidate their cases and suspend all challenges to the constitutional validity of the legislation until the legal attacks on the President’s decision to sign it have been resolved.
New legal blow
Meanwhile, this week Sakeliga also launched its case against the Act over cost and viability, arguing it is unaffordable and unviable in SA’s current economic climate, and asking the Gauteng High Court (Pretoria) to declare it invalid and to set it aside.
Citing research commissioned for its case, Sakeliga said the government would need an extra R500bn a year to implement NHI, requiring an “unthinkable” 30% increase in income tax rates, reports BusinessLIVE.
Sakeliga said there was no viable way to fund NHI. “If the government tried to fund it out of existing taxes and borrowing, it would have to make debilitating cuts to other government services and spending obligations, and raise government borrowing from already unsustainable levels, precipitating fiscal collapse and severe financial and economic harm,” it added.
“The NHI is inappropriate and unviable in …an economically struggling country with no growth and insufficient medical and healthcare resources. The state … is already under enormous fiscal stress and has a well-documented track record of severe, endemic and persistent governance failures.”
The group also contends that the NHI Act breaches section 27 of the Constitution, which says everyone has the right to healthcare services and that the state “must take reasonable and other legislative measures, within its available resources, to achieve the progressive realisation” of these rights.
It has cited the Ministers of Health and Finance, the President, the Speaker of Parliament and the National Council of Provinces as respondents.
See more from MedicalBrief archives:
Submissions: NHI Bill has serious constitutional and human rights implications
MPs debate problem of tens of thousands of NHI Bill submissions
NHI critics push back against State’s ‘delaying tactics’
Ramaphosa granted ConCourt hearing for NHI appeal