The Department of Health has dug in its heels and told critics that, like it or not, the NHI Act is law, and there’s no space for “back door” settlements – despite Finance Minister Enoch Godongwana’s apparently conciliatory appeal recently for stakeholders to resolve their legal issues out of court.
Responding to articles about Godongwana’s call, and most stakeholders’ rejection of this call, the department said that laws cannot be settled or renegotiated in this manner, Business Tech reports.
Instead, it said, any changes to the NHI Act should follow the legislative process for amending laws, if necessary, or it must be left to the courts to address any perceived shortcomings.
Department representatives said that trying to renegotiate laws through processes after the fact undermines the authority and credibility of the legislative process itself.
“You cannot have a situation where Parliament debates, consults and passes a law, only for key aspects of that law to be reopened or diluted immediately after promulgation through parallel negotiations,” it said.
“That turns legislation into something provisional, negotiable and politically reversible after the fact, which is fundamentally incompatible with constitutional governance and the rule of law.”
It added that the correct and legitimate route is judicial review. “Courts exist precisely to test constitutionality.”
However, it said that it was not a substitute for democratic policymaking.
“Courts may test constitutionality; they do not rewrite the mandate of Parliament simply because opponents refuse to accept the outcome.
“Let us state the core fact plainly: NHI is law. It is not a draft policy. It is not a discussion document. It is an Act of Parliament, signed by the President, after years of public participation and legislative process,” it said.
“South Africa is therefore not in a bargaining phase about whether universal health financing reform should happen. We are in an implementation phase, and the country must move forward.”
Busa meeting in jeopardy
Business Unity South Africa (Busa) was one of the stakeholders that had welcomed Godongwana’s call to end the conflict, saying it hoped for a meeting with the Presidency to discuss its proposals in the first quarter of the year.
As South Africa’s biggest umbrella body for organised business, although it is not directly litigating against the NHI Act, many of its members are.
Business Day reports that Busa had put an alternative proposal to the NHI Act to President Cyril Ramaphosa at his invitation in late 2024, which it described as practical and evidence-based, and could be designed to work within the country’s existing finances instead of raising taxes.
It proposed a hybrid funding model in which medical schemes continue to play a role, and suggested mechanisms for improving governance in the public sector.
“We would be keen and ready to engage when the government reaches out to us,” Busa CEO Khulekani Mathe had said last week.
Ramaphosa’s spokesperson, Vincent Magwenya, confirmed the Presidency intended to schedule a meeting with Busa in this period.
Business Tech article – Government sends a message to NHI critics (Open access)
Business Day article – Busa hopes to meet president on NHI proposals (Restricted access)
See more from MedicalBrief archives:
Will it be back to the table for NHI negotiations?
Government plays for time on NHI court cases