In the legal clash around the contentious National Health Insurance Bill that resumes next week (5-7 May), litigants will argue that the NHI system has not been costed properly, and that it was pushed through purely for electioneering purposes and will bankrupt the country, while President Cyril Ramaphosa will tell the Constitutional Court that it represents a step forward in redressing the unequal healthcare system, TimesLIVE reports.
In the matter, scheduled to be argued over three days, the court could order Parliament to redo the process, potentially pushing the matter into the 2029 election season.
In papers filed on his behalf by the State Attorney, Ramaphosa said he did not wish to enter into the merits of the public participation challenge, and that doing so would breach the separation of powers provisions of the Constitution.
The papers maintain that NHI is essential for South Africa, and deny any political considerations in his decision to assent to the Bill on 15 May 2024, or that the passage of the Bill “was influenced by elections or electioneering”.
The Board of Healthcare Funders has taken issue with the public consultation process followed by Parliament, saying it was inadequate and amounted to inviting the public to speak to a “legislature that had already made up its mind”.
Parliament had passed one of the most far-reaching statutes of the democratic era without proper regard to the cost implications and whether the fiscus and taxpayers would be able to afford it, the BHF maintains.
The costing should have been a primary consideration for the legislature, and its absence reduced public participation to a mere formality, it said in papers.
“The NHI Bill could not be properly assessed by the public without clear information on its projected costs and sources of funding. The cost and funding … would have informed whether the draft law was workable and sustainable within the country’s scarce resources,” the BHF said.
“Yet this issue received no attention during the legislative process. Nor was the public provided with this information by Parliament. The information could not be provided – Parliament never had it; the department still does not have an answer.
“But the draft law proposed a fundamental restructuring of how healthcare is financed and delivered in the country, with significant implications for public expenditure and revenue-raising measures, on any conceivable model of NHI.”
Estimates for NHI have ranged from R450bn to more than R1trn annually once fully implemented.
Health Minister Aaron Motsoaledi will tell the apex court that the BHF places undue emphasis on costing what is intended to be a long-term project.
He is expected to argue that the flexible nature of the NHI scheme makes precise cost estimates for a prolonged implementation period impractical, given that both the basket of services and the pace of implementation are not predetermined and remain subject to available financial resources.
“Indeed, the department was advised by economists and the World Health Organisation that it would be a futile exercise to try to cost a 25-year project of this nature. Inexplicably, BHF contends that information pertaining to the costing and funding ‘could readily have been sourced and furnished’ and ought to have been considered by Parliament,” Motsoaledi’s court papers state.
Legal challenges
Western Cape Premier Allan Winde will argue that the National Council of Provinces fell short of its obligations in, among other things, refusing an extension to the province of a deadline to submit the outcome of its consultation on the Bill.
Court papers show that National Assembly Speaker Thoko Didiza will reject both the BHF’s and Winde’s claims that the public consultation process was flawed.
Didiza will point to about 338 000 written submissions from the public, as well as public hearings in all nine provinces – attended by more than 11 500 people – as evidence that exhaustive public consultations were held.
She will argue that, apart from national processes, provincial legislatures held 60 public hearings where citizens had the chance to make oral submissions.
“There is no evidence that Parliament approached the public participation hearings with a closed mind or that it had no intention of accommodating any changes,” Didiza’s papers state.
“This averment is based entirely on BHF’s contention that because the Bill does not reflect its views, the outcome was flawed.”
Millions to defend
The Citizen reports that the Department of Health has set aside R74m to deal with the legal challenges linked to the Act.
Motsoaledi confirmed the amount in a parliamentary reply to MP Philippus van Staden last week, adding that there were 15 cases, each costing between R2.5m and R3m, which had been ongoing for more than a year. The money has been paid to six senior counsels, 10 junior counsels and attorneys.
When asked by Van Staden about any “contingency plans” after the outcome of the court’s decision, the Minister replied: “The High Court made an order with the agreement of all parties that …all cases will be stayed and the proclamation of all sections of the Act plus implementation will also be stayed until the judgment.
“It is unclear what contingency plans are referred to.”
Business Times article – High-stakes NHI battle heads to ConCourt (Restricted access)
See more from MedicalBrief archives:
Government plays for time on NHI court cases
Solidarity says NHI legal battle lines drawn