Public consultation over the National Health Insurance (NHI) took centre stage in the Constitutional Court this week, with counsel for the Board of Healthcare Funders arguing that the process was inadequate as the public was never told what the scheme would cost, what services it would cover, or how it would work – the basic information it needed to participate meaningfully in the legislative process that gave rise to the Act.
But Parliament has disputed this characterisation of the process in its entirety, its main argument being that the apex court lacks jurisdiction to hear the challenge, and that the BHF’s pleadings amount to an attack on the rationality of the Act and not a public participation complaint.
In a legal showdown that could affect the trajectory of the NHI, and the first of several legal challenges to the Act at the apex court, Advocate Bruce Leech, for the BHF, said the crux of the challenge lay in three questions any member of the public would reasonably expect to have answered: “’How much is this going to cost? What am I going to be getting in return? And how will this work?’ Because (the government’s) track record suggests a lack of trustworthiness.”
News24 reports that Leech has argued that virtually nothing changed between the Act’s introduction and its passage, despite overwhelming opposition from organised healthcare and civil society.
He argued that the financial shortfall was estimated to be between R140bn and R250bn, and that these were integral questions, “especially when the public will be paying for it – either in additional taxation or by taking money from provincial and local health”.
The NHI Act Draft Bill that was introduced to Parliament in August 2019 drew more than 300 000 written submissions from the public, and cost Parliament more than R14m in public participation logistics before being signed into law by President Cyril Ramaphosa in May 2024.
Leech told the court the BHF fully supported universal healthcare, and that when it first responded to the Green Paper, “it tendered its resources in the development of NHI, including a basket of services and costs”.
‘No engagement’
The BHF’s challenge to the apex court was that public participation was hollow because the information required for genuine engagement was never placed before the public.
The NHI Act does not define what services it will provide. Instead, it creates a body, the Benefits Advisory Committee (BAC), and grants it the power to determine the services at a future date.
The basket of services, Leech argued, was the core of the entire legislative scheme, and without knowing what those services were, no cost estimate was possible. Instead, he said, the determination of that fundamental feature had been handed to an unelected committee.
The public asked these questions “over and over again” throughout the parliamentary process, Leech argued, but no answer was ever provided and contentions that they were available in a 2019 memorandum were dismissed.
He contended that Parliament had abdicated its own constitutional responsibility, outsourcing its engagement with public concerns to the Department of Health.
He said: “We’ve searched through minutes, reports and meeting notes, and what we cannot find is anywhere where Parliament engages with those questions and forms a view of its own.”
He also questioned the pace at which the legislation was ultimately pushed through, particularly in the National Council of Provinces (NCOP).
“The BHF has put up the proposition that there might have been an ulterior purpose, but whether right or wrong, there was no urgency. If there’s a weakness, it’s in the NCOP. But even if it’s only one of the houses of Parliament that fails in (public participation), the process must be reset to go back to the beginning.”
On the merits, Parliament pointed to the sheer scale of the participation exercise, arguing that the constitutional standard is one of reasonableness, that the public was afforded a genuine and extensive opportunity to engage.
Leech was challenged by multiple justices on the point that Parliament may proceed without altering the Act once public participation had concluded, a point to which Leech conceded, but maintained that the participation in itself was still not “meaningful”.
Outcome
Parliament’s advocate, Ngwako Maenetje, argued that the BHF’s challenge was “fundamentally about the outcome” and that “no public participation would have satisfied it”.
He told the court sufficient information was provided to the public to meaningfully participate in the law-making process, and that Parliament followed the advice of the WHO that it was impossible to estimate the true costs of implementing the scheme because it could take up to a decade to implement and would be subjected to different economic conditions.
The government could not possibly provide the overall cost of a process that could take more than 10 years to implement, he added.
“Using projections and costing … when you have a 25-year projection, they become unreliable.”
He cited a report by the WHO which maintained that attempting long-term funding estimates for such a programme would take them down a “rabbit hole”, and that Parliament and the department could not reasonably tell the public “with any specificity that we require so much from payroll taxes and so much from surcharges at this point, because maybe at that point, what is available is sufficient”.
That the overall financial implications were unavailable during the public process does not render the process unlawful because the government had provided cost figures and information about funding models such as taxation, he added.
Business Day reports that when he was asked whether cost and funding details were not central to the public participation process, Maenetje said South Africa spends 8.5% of its GDP on health, and the objective of the NHI is to spend no more than 8.5% of GDP on it and to reduce administrative overheads.
The proposal on funding models and that the department disclosed cost amounts in different phases of the NHI were sufficient to enable the public to participate meaningfully, he contended.
He argued that the BHF’s main objection was its view that the government could not afford the scheme, rather than the public participation process, which was “extensive”.
Maenetje also took aim at BHF’s argument that services covered by the NHI should be explicitly defined in the legislation itself.
“That will (cause) rigidity because you cannot respond quickly to changes,” he said. Regulations released in accordance with the Act were the appropriate vehicle, he argued, noting that under the current medical schemes system, minimum benefits were prescribed by regulation rather than by statute.
Regarding the BAC, the body tasked with determining what health coverage the Act will provide, Maenetje argued that it was far from the unconstrained body the BHF had described.
On concerns about healthcare corruption, Maenetje said these had also been “raised repeatedly and addressed” in the Act.
Levels of care
Advocate Kameshni Pillay – for the Department of Health – said the BAC must determine and review the healthcare benefits at each level of care, which would be carried out in consultation with the Minister.
“This is a committee making decisions on the latest evidence available to it. You cannot calcify that basket of services in legislation.”
Pillay added that the BAC was required to detail and review costing guidelines “taking into account new technologies,” in a health landscape where “things develop on a daily basis”.
Addressing the BHF’s costing argument directly, she reiterated that the scheme could not be costed over a longer period because “even a slight change of costing structure makes a massive difference because you are dealing with economies of scale”.
Pillay argued that Parliament did not rush the consultation process of the NHI Bill but spent almost four years, from August 2019 to June 2023, in processing it and consulting with the public before deciding on the matter.
She said Parliament’s public participation process resulted in 35 changes to the NHI Bill.
More than 11 500 people attended public participation meetings and more than 950 oral submissions were presented.
Furthermore, 338 891 written submissions were received from the public, with the majority supporting the implementation of the NHI.
Outside the court, Minister of Health Dr Aaron Motsoaledi said: “What I think the BHF is saying is that we did not change our proposal. If Parliament doesn’t take the proposal, the process is fraud.
“There are many contenders to the law. If the law does not come out how you want, you cannot say it is fraud. There is no law that doesn’t have people who don’t like it. If they regard that as having no meaningful public participation, then there will be no law.”
Null public participation
In its explosive argument, counsel for the Western Cape argued that the province’ s clause-by-clause analysis of the Bill was never even considered by the NCOP, while public participation in that province – as well as in Gauteng – was completely ignored, News24 reports.
A select committee meeting convened to consider the Western Cape’s submissions had taken just 35 minutes and occurred the day before the NCOP plenary, while Gauteng’s public participation process was never even relayed to the NCOP for consideration, rendering it effectively non-existent.
Advocate Geoff Budlender told the apex court that the failures were so fundamental that they could not be fixed by the belated steps taken by the NCOP in the final weeks before the Bill was passed.
Appearing for the Office of the Premier of the Western Cape, Budlender argued that the NCOP’s Select Committee on Health and Social Services had adopted the NHI Bill on 21 November 2023 without having received a public participation report from the Western Cape Provincial Legislature.
Additionally, it had also not received the Western Cape’s final mandate, with Budlender referring to the hastily convened meeting a week later to remedy this as “nothing more than a charade”.
He told the court: “Null. That’s the outcome of the Western Cape public participation process: that’s the impact that it had on the process.”
In its extensive written submissions to the NCOP during the legislative process, including a general comments document and a clause-by-clause analysis containing detailed proposed amendments to individual provisions of the Act, the province had noted, among other concerns, issues about the centralisation of health governance at the expense of provincial powers, the Bill’s silence on funding, and the risk that it would accelerate the emigration of medical professionals.
Budlender maintained that those submissions were never substantively engaged with in any minutes or reports of the select committee, and that in Gauteng, “it was as if there were no public participation at all, because there was no report at all about public participation to the select committee”.
“Members of the public were therefore unable to influence what happened and, in the words of this court, this deprived the process of the potential to achieve its purpose: namely, the public ought to be able to affect the outcome.”
When the select committee adopted the Act, he submitted, it was a final decision. A further meeting was convened a week later, which Budlender argued was an attempt to cure the defect of failing to consider the Western Cape’s submissions.
“But it was too late… because the plenary was going to take place the next day.”
The minutes of this meeting, he said, told the story plainly.
“First, the committee received the negotiating and final mandate of the Western Cape Provincial Legislature. Then [there was] some discussion of why the Western Cape mandate was considered at that time. There was no discussion of its proposals. None. The committee then adopted the Act exactly as before.”
The entire meeting took 35 minutes.
When the Western Cape had requested an extension, after further requests for public participation after a final session that overflowed with members of the public, it was told the Act needed to be processed by the end of that year.
Why the NCOP had set such a hard deadline was, he argued, never answered. Budlender questioned why the Act was not simply allowed to lapse, so that Parliament could use its power to reinstate it in the next sitting.
“No cogent reason was given. No explanation why the Bill had to be concluded in that session of Parliament.
“It was the result of fixed adherence to an immutable deadline to which no justification had been offered.”
See more from MedicalBrief archives:
NHI ConCourt clash set for next week
NHI challenge before ConCourt next month