Several stakeholders reacted with dismay to the publication of the first draft regulations for the National Health Insurance Act (NHI) last week, despite various objections and looming legal constitutional challenges, and which critics say have ignored any recommendations or compromises.
While President Cyril Ramaphosa promised to take stakeholders’ concerns into account when he signed the Act, he appears again to have ignored these, they said.
Interested parties have three months to comment on the proposals, published in the Government Gazette, which specifically address section 55 of the Act, outlining a suggested governance structure and the processes governing the Fund.
AfriForum has labelled the proposals as “poorly written and vague”, and “lacking in clarity”, calling for the entire Act to be scrapped, while the Board of Healthcare Funders (BHF) said it was frustrated by the publication of the regulations when multiple court challenges are questioning the Act’s constitutionality.
BHF managing director Dr Katlego Mothudi said: “It’s disappointing that, instead of working with the private healthcare sector to find sustainable ways to address urgent healthcare needs, the National Department of Health continues to forge ahead with the implementation of the unworkable, unaffordable and unconstitutional Act.”
Not revealed
“These regulations take us one step closer to a single, centralised fund that carries gigantic risks for governance, and for our health and well-being,” said Western Cape Health & Wellness MEC Mireille Wenger.
“At the same time, the actual costs of the NHI and a number of critical areas surrounding the functioning of the Fund have not been revealed.”
She said “a rigid, one-size-fits-all system risks undermining already functional healthcare structures”.
As was widely anticipated, reports BusinessLIVE, all key appointments are to be overseen by the Minister, which although not unusual for government entities, was a contentious point when the Bill was before Parliament, with critics urging legislators to make the NHI Fund independent of the executive to shield it from political interference.
The document says the Minister will issue a call for nominations to the board of the Fund, each to be nominated by at least five people. A nomination committee established by the Health Director-General will then draw up a shortlist of recommended candidates.
This will then be scrutinised by an ad hoc committee of between four and eight members appointed by the Minister and chaired by a retired judge. It will recommend its chosen candidates to the Minister, who will then submit the names to the Cabinet for approval. The ad hoc committee will be appointed for up to four years.
Once the Board has been appointed, it will recruit a CEO, subject to ministerial and Cabinet approval.
The CEO will then recruit candidates, subject to approval by the ad hoc committee and the Minister, for a benefits advisory committee and a healthcare benefits pricing committee. Each advisory committee is to have between 16 and 24 members and a Chair appointed by the Minister.
Legal challenges
The BHF’s Mothudi said the organisation intended to thoroughly review the regulations before submitting a detailed argument.
“After his signing of the Bill into law, President Ramaphosa had committed to engaging with stakeholders on their concerns regarding the legislation. However, it appears he and Minister Aaron Motsoaledi have continued to ignore all well-reasoned arguments that have been made by various groups, including (ours), on why the NHI Act is unconstitutional.
“In the meantime, we will continue to fight for progress towards achieving universal healthcare in South Africa through our NHI court action.”
In tandem with the BHF’s response, the Hospital Association of South Africa (Hasa) has also initiated a legal challenge against the NHI, reports Sunday Tribune.
Hasa’s legal documents, filed in the Gauteng High Court (Pretoria) in January, argue that the Act should be set aside due to concerns over its constitutionality and financial viability. Central to Hasa’s argument is that the NHI scheme contravenes Section 27 of the Constitution, which guarantees every South African the right to healthcare services.
Furthermore, Hasa contends that the government has not conducted a recent financial feasibility study on the scheme’s implementation costs, raising serious concerns about its affordability and potential funding shortfalls.
Unfeasible system
Afriforum said the flawed draft regulations have confirmed the government is incapable of launching or managing such a complex system, that the document lacks any clarity about what South Africans can expect from the system.
In a statement in PoliticsWeb, Louis Boshoff, campaign officer for health at AfriForum, said some of the regulations are so poorly written that they contain even less detail than the original explanatory articles of the NHI Act. Other regulations and sub-regulations are simply confusing or so vague that various interpretations can result from them.
He wrote that the Act was criticised from the outset as unclear and ambiguous and it was hoped that the regulations would bring more clarity on how the system was supposed to function, but the draft regulations have done nothing to provide greater clarity.
“How can a Minister and Department of Health, that cannot even write well-thought-out regulations, be expected to manage this highly complex system?”
He wrote that AfriForum would submit its full comments on the draft regulations in the coming weeks but the organisation believed the NHI Act should rather be scrapped as a whole.
Court confrontation
Business Unity SA (Busa), which has sought changes to the legislation in a proposal that was submitted to Ramaphosa last year, has challenged the authority of Motsoaledi to issue regulations before the Act had been brought into effect.
“According to our knowledge, the NHI Act is not effective because it has not been proclaimed by the President (and) therefore does not empower the Minister to make regulations yet,” said Busa CEO Khulekani Mathe.
Publishing regulations in isolation from an agreed on, workable NHI framework risked undermining the objective of universal health coverage, said Busa, which has previously said the reforms set out in the Act were unworkable and unaffordable, and posed a risk to the economy and investor confidence.
“We have consistently advocated for a fiscally responsible, inclusive approach to universal health coverage that leverages both public and private healthcare resources,” Mathe added.
Cosatu in support
However, the ANC’s tripartite alliance partner Cosatu says it will fight any changes to the NHI Act.
Business Day previously reported that the ANC and the DA had struck a deal to “amend sections of the legislation and allow for the protection of the private healthcare sector in the rollout of NHI”.
But Cosatu first deputy president Mike Shingange said any changes to the Act would bring instability to the troubled tripartite alliance ahead of the 2026 local government elections.
“We don’t see why there must be negotiations with anybody about NHI because the Bill was discussed for years before being signed. Now it has been passed – and changing the law after that sounds unconstitutional, because you don’t do that unless you go back to Parliament,” he said.
Cosatu leadership had attended the SA Private Practitioners’ Forum and the Board of Healthcare Funders’ court case challenging Ramaphosa’s decision to sign the NHI Bill into law.
But Shingange said the organisations’ dissenting views were defeated in an open democratic process when Parliament passed the Bill.
“The ANC and the President should not be coerced to take Bills back to Parliament and change them to accommodate people who participated and whose views were defeated by the majority. It is not the democracy we struggled for,” he said.
“We do not believe NHI should be declared unlawful.”
Cosatu is lobbying for unions and workers to demonstrate and fight against the private sector’s legal challenges to NHI.
Trade union Solidarity, which has also taken legal action against the Act, said the government was taking an unacceptable financial risk by allocating funds to NHI.
Regulations will be ready
Health Department Deputy DG for NHI Nicholas Crisp said the draft regulations had been gazetted “so that when the relevant sections of the Act are promulgated, the regulations are ready”.
Crisp previously told Business Day the first draft regulations would be published by the end of September. However, said Crisp, it had taken longer than expected because the National Health Council decided they must be broadly accessible to as many people as possible and it took time to have them translated into Sepedi, Afrikaans and isiZulu.
Crisp said the prices set by the interim multilateral negotiating forum for private healthcare tariffs, proposed in regulations gazetted by Trade, Industry & Competition Minister Parks Tau last month, might form a foundation for the benefits and pricing committees.
The tariff-setting forum is to be housed within the Health department and will allow medical schemes and some healthcare providers to collectively negotiate prices without falling foul of the Competition Act.
Meanwhile, Judge Mpostoli Twala has reserved judgment on whether the Gauteng High Court has jurisdiction to hear the first legal challenge against the NHI after the BHF and SA Private Practitioners Forum (SAPPF) having appeared in court last week for their applications against the NHI.
Their applications were not heard, however, as Ramaphosa’s legal team challenged the High Court’s jurisdiction to hear the cases, saying it should be argued in the Constitutional Court. They also refused to provide the record of his decision to sign the NHI into law.
Senior counsel for both the applicants and respondents raised interpretations of the Constitution and applicable law aligned with their desired outcome, Ramaphosa’s argument being centred on Section 167(4)(e) of the Constitution, which states only the apex court can decide whether the President has failed to fulfil a constitutional obligation.
As a result, his lawyers argued, his assent to the Bill was not reviewable by a High Court, reports News24.
It was also contended that the Constitutional Court has exclusive jurisdiction over politically sensitive matters that fall within the terrain of one arm of the state and has the capacity to interfere with another.
In addition, even if the High Court found it has jurisdiction, Ramaphosa’s legal team argued that his assent and signature were not reviewable on the grounds of rationality or other more expansive grounds of review.
Advocate Max du Plessis SC for the SAPPF argued the High Court had a legal obligation to consider the constitutionality and conduct of the President’s decision, and the apex court could later confirm its judgment.
He asserted the challenge was against the rationality of the process and the substance of Ramaphosa’s decision and was, therefore, reviewable by the High Court.
The SAPPF contended Ramaphosa should have remitted the Bill back to the National Assembly because were raised relating to constitutional issues.
Du Plessis said their case was to challenge the “missteps by the President”.
The court’s jurisdiction is also crucial because if the cases are argued before the High Court, Ramaphosa must disclose the record of his decision to assent to the Bill, as required by the Uniform Rules of Court.
However, this does not apply in the apex court, although an application can be made for an order obligating the filing of the record.
News24 – High Court to decide if it has jurisdiction to hear review of Ramaphosa's decision to sign NHI into law
Business Day PressReader article – Dismay at draft rules for NHI Fund (Open access)
Business Day PressReader article – Cosatu urges Ramaphosa to hold firm on NHI (Open access)
Business Day PressReader article – Cosatu urges Ramaphosa to hold firm on NHI (Open access)
See more from MedicalBrief archives:
First NHI draft regulations set for release
Hospitals group latest to launch NHI legal challenge
Three possible future scenarios for NHI
Hospitals group latest to launch NHI legal challenge