A flood of legal suits is set to follow the signing of the NHI Bill yesterday, and are almost certain to hold up the ambitious plan for long, notes MedicalBrief.
Health professional groups, business organisations, trade unions and political parties have all vowed to challenge the legislation right up to the Constitutional Court. They include the Health Funders Association (HFA), the South African Medical Association (SAMA), the Board of Healthcare Funders (BHF), and the South African Health Professionals Collaboration. Business Unity SA (Busa) and Business Leadership SA (BLSA), the DA, AfriForum and Solidarity.
In a letter of demand dated Wednesday and sent minutes after the President signed the law, trade union Solidarity’s attorney Carel Nicolaas Venter said ‘the governing party has disregarded substantive and procedural issues raised by industry stakeholders, citizens, and organisations … in favour of pushing through impractical and unconstitutional legislation’. Solidarity said the government failed to conduct a proper cost analysis. ‘Government has not adequately examined the concerns raised,’ Venter said, according to a Business Day report.
These concerns were, among other things, ‘governance structures, operational efficiency … (and) the risk concentration in a single-payer system within an unstable economy plagued by endemic corruption’. The government’s dismissing these ‘is shortsighted, unwise and ultimately unconstitutional,’ Venter said.Solidarity said it would institute its ‘challenge (to) the constitutionality of the NHI Act’ in court, unless the government confirmed it would repeal the act. The trade union has given the government until next Thursday.
Along with Solidarity, civil rights group AfriForum also delivered a letter of demand to the President on Wednesday, declaring the NHI regime ‘unconstitutional, unaffordable, unimplementable policy’. The Business Day report notes AfriForum said it would be instituting a class action against ‘the Government of SA, the President, Parliament and the Minister of Health’. This was different to a direct legal challenge to the legislation, AfriForum said, because a class action allowed AfriForum ‘to address the multitude of factual disputes which are likely to arise from the litigation processes’. It would also allow evidence to be led in open court ‘dispelling many of the lies and half truths around the NHI’. Due to the length of time class actions took to get to court and be resolved, this ‘keeps the implementation of the NHI … at bay’.
The BHF announced that it would “immediately institute legal proceedings”, with head of research Charlton Murove saying the association was prepared to challenge the Bill in court. “The big issue is the lack of consultation and the failure to take substantive concerns into account when drafting the Bill. It has been railroaded through and is unconstitutional,” he said.
The HFA was also geared up to initiate its legal challenge, said chair Craig Comrie.
“Our biggest concern is that it jeopardises the existing health assets and doesn’t drive a value proposition that is attractive to doctors to remain in SA and be employed by the NHI.”
The association was “well prepared to defend the rights of medical scheme members and all South Africans to choose privately funded healthcare”.
SAMA said it would “fight for the protection of our healthcare services in (the) relevant courts”, and that “our legal team is preparing to launch this challenge”, reports Daily Maverick. It said it had hoped the President would refer the Bill back to Parliament for further work.
A spokesperson for the South African Health Professionals Collaboration – representing more than 25 000 public and private sector healthcare workers – said: “We have no doubt the Bill will be challenged in the courts, and are currently exploring our options.”
The organisation wrote to the President in December, urging him to refer the Bill back to Parliament on the grounds that it was unconstitutional and not in the best interests of patients.
Its input had been ignored, it said. “We have no doubt that the Bill will be challenged in the courts, and we are exploring all of our options in this regard,” said spokesperson Simon Strahan.
Busa and BLSA said they were disappointed, that both groups had lobbied hard for changes to be made to the Bill during its passage through Parliament. They said it was unworkable and would damage the health system and the economy.
Cas Coovadia, CEO of Busa, said the organisation was “deeply concerned”, and that the legislation has “many substantive and procedural constitutional flaws”, while BLSA CEO Busisiwe Mavuso said the government had rushed a populist policy through parliament as an election ploy, reports Business Day.
“The law will never work, simply because there is no capacity to implement it… as soon as it is signed it will be embroiled in litigation on several fronts, including its constitutionality,” she said.
DA leader John Steenhuisen said the party’s legal team had been briefed “months ago”, and that it was ready to fight the Bill all the way to the Constitutional Court, according to a News24 report.
“The scale of panic … is without precedent.”
However, UCT law professor Pierre de Vos, said challenges to the constitutionality ‘do not look particularly persuasive’. He said that ‘some people seem to think the court should torpedo the NHI … not because of any specific infringement of rights, but merely because they do not like the policy and/or fear it would disadvantage them’. To De Vos, the Act was the result of a proper democratic process, notes Business Day.
The Mail & Guardian reports that ANC chief whip Penny Majodina said enough work had been done to ensure the Bill would be effective.
“We conducted hearings as is provided by the Bill. We went across the country. We got those views. In a democratic country, you must also act based on the majority views.”
Those who “still doubt and … panic, they must just calm down. This is their government. When the need arises, we can then amend, if there are certain things that make the Act not implementable. But, at the moment, let’s start it”, she said.
Majodina denied Ramaphosa was using the Bill as a ploy to win votes for the ANC in the elections.
Range of legal arguments
According to numerous experts and critics, however, the Bill faces attack on multiple legal grounds.
BLSA CEO Busisiwe Mavuso said the Constitutional Court had previously struck down legislation because of the state’s failure to adequately take into account the results of public consultation, which she suggested might be the case here.
“Public consultation cannot just be a matter of procedure, but must include proper consideration of the input received, as spelt out in the Promotion of Administrative Justice Act. It is hard to believe there has been proper consideration when draft legislation is finalised without change after a comment period.”
The BHF pointed specifically to section 33 of the legislation as the aspect it would legally challenge, describing it as “unconstitutional and unlawful”.
Section 33 stipulates that no medical aid will be able to cover any health service offered by the NHI.
“We want section 33 removed as it reduces the role of medical schemes that are a national asset,” BHF stated.
The law firm Werksmans Attorneys’ head of healthcare, Neil Kirby, wrote in November 2023 that the NHI legislation in its current form might be open to constitutional challenges on the basis of the right to freedom of association if it attempts to force people to register as NHI users.
“Equally, the state cannot enact legislation that unfairly or unreasonably limits a person’s rights to access healthcare services where there is a viable and available alternative to do so,” Kirby wrote.
“Such a situation would, no doubt, bring the Bill and eventual NHI scheme into a collision course with the Constitution.”
Social justice organisations have also raised concerns that the rights of asylum seekers and foreign nationals may be infringed by being granted access to only limited healthcare services in terms of the legislation, which is likely to be another avenue for legal confrontation.
In general, it has been suggested overall that the NHI would create barriers to accessing healthcare, for instance, regarding the documentation required for registration, which would be unconstitutional too.
Former Health Department legal adviser Dr Debbie Pearmain was quoted last year as noting that the state’s law adviser had said the Bill would probably pass constitutional muster.
“But bear in mind that the state law adviser has said several other pieces of legislation are constitutional and then the courts have found them not to be,” she had said.
At the BHF annual conference in Cape Town recently, Neil Kirby, from Werksmans Attorneys, said the Bill falls short of meeting the constitutional litmus test in terms of the scope, ambit and application of the legislation.
He said implementing the system gradually and providing clarifying regulations would not suffice as the legislation has to be constitutional from its outset, reports News24.
“The unconstitutionality … could not be fixed through its regulations. Medical schemes will be directly impacted when the Bill becomes an Act, as the Act will drastically reduce the benefits schemes can offer when the NHI is fully implemented.
“Schemes cannot wait for further developments because the judiciary would question why they hesitated to go to court.”
He said the Bill employed relatively vague language to describe the “health services” with which the legislation was concerned. “The lack of clarity on the benefits to be provided is a constitutionally based concern. The Bill is intended to progress the state’s obligation to provide access to healthcare services in terms of Section 27 of the Constitution.
“However, you cannot determine how that obligation is being fulfilled if you are unable to discern what it is the state is doing to fulfil it or how that will be achieved. Simply publishing a Bill and styling it as a national health insurance endeavour does not cut the constitutional mustard.”
Medical Schemes Act
Amendments to the Medical Schemes Act did not do much to advance an understanding of the benefits to be provided by the NHI, Kirby said.
“While it appears, at first glance, that the fund takes for itself certain aspects of pregnancy and abortion, the definition of a ‘relevant health service’ still contains references to certain maternity benefits. An ironically Solomonic approach to splitting the baby.”
Efforts to cobble together a benefits package with reference to the provisions of the Bill were largely futile.
“The language … is too vague to provide any clarity or certainty and amendments proposed, primarily, to the Medical Schemes Act, are frustratingly unclear. “Such vagaries do not bode well for the Constitutional health of the Bill or, more importantly, a proper assessment of whether or not the State will be in a position…to progressively advance access to healthcare as it is constitutionally mandated to do.”
On Tuesday, when asked whether the Bill would withstand legal scrutiny and backlash, Ramaphosa confidently said: “Many laws are often challenged, but our duly elected people have voted for that piece of legislation, and that is the democratically elected representatives we all have.
“So… they have voted for that piece of legislation and whoever is unhappy has a number of avenues.’
He added: “Let me tell you something, my good friends, we are not a reckless government. We are a government that is focused on building a nation, reconciliation and making sure that there is equality fully in our country.”
BusinessLIVE – Ramaphosa signs nhi bill into law
SABC News – Section 27 surprised by imminent implementation of NHI into law
Health E-News – Mixed Reactions As President Sets To Sign The NHI Bill Into Law
News24 – Ramaphosa hits back at 'well-to-do, rich people' for criticising decision to sign NHI Bill
News24 – Legal teams ready to challenge NHI Bill in court as Ramaphosa prepares for signing
Business Day – Afriforum and Solidarity to challenge NHI Act
News24 – 'Rushed through': Medical community rejects NHI Bill, doctors threaten to leave SA