President Cyril Ramaphosa says the High Court was wrong in its ruling that found his decision to sign the National Health Insurance (NHI) Act into law could be reviewed, and has filed a notice indicating his intention to appeal the judgment by approaching the Constitutional Court directly.
The case had been launched by the Board of Healthcare Funders (BHF) and the South African Private Practitioners Forum (SAPPF), and followed a ruling in their favour by the High Court earlier this month confirming that it did, in fact, have jurisdiction to hear the matter.
At the time, reports The Citizen, Judge Mpostoli Twala ordered Ramaphosa to submit documents explaining the reasoning behind his decision to enact the NHI Act in 2024.
Ramaphosa has now notified the court of his intention to approach the Constitutional Court directly by 27 May. He said if the Constitutional Court agrees to hear the case, the High Court proceedings would be withdrawn.
However, if the apex court declines to hear the appeal, the matter would then proceed before a full Bench of the High Court or the Supreme Court of Appeal (SCA).
Ramaphosa argued in the application that the appeal has “reasonable prospects of success” and claimed the court had made “errors of law and fact”, maintaining that the High Court lacked jurisdiction to hear the case in the first place.
He added that the court did not properly account for his constitutional powers to sign a Bill into law after applying his judgment.
“Having failed to find that this matter was politically sensitive, which meant the Constitutional Court enjoyed exclusive jurisdiction, the court also erred in failing to take into account the breadth of the discretion enjoyed by the President,” the court papers read.
He also argued that the court erred in ruling that his decision to sign the NHI Act into law was reviewable.
“First, it did so by assuming for itself a role that the Constitution gives to the Constitutional Court.
“Second, and on the substance, our law does not recognise a ground of review based on whether the President ‘properly’ applied his mind nor the basis on which such ‘propriety’ would or should be assessed.”
More challenges loom
Meanwhile, the BHF is about to launch two further attacks on the Act, reinforcing its conviction that not only is the NHI unaffordable but that it will fail to achieve the aim of universal health coverage.
Having already challenged Ramaphosa’s decision to sign the legislation into law a year ago, it’s now going for a Constitutional Court challenge to the public participation process undertaken by the government in developing the Act, and will separately challenge the constitutionality of its provisions in the High Court.
Werksmans director Helen Michael told delegates to the annual BHF conference in Cape Town last week that preparations for the case were nearing completion and they expected to file papers shortly.
Business Day reports that the BHF’s members, which include the Government Employees Medical Scheme, represent about half of the medical scheme market. The BHF would make the case that the government ignored valid concerns raised over the Bill and that the public hearings were “meaningless and flawed”, she said.
The case will include a report from FTI Consulting MD Paula Armstrong that shows the NHI is “completely unaffordable”.
Michael did not provide details of the second matter, saying only that the BHF had obtained a report from Wits University’s School of Governance Professor Alex van den Heever that shows the Act will not achieve its aim of universal health coverage.
Business Day PressReader article – BHF prepares two more NHI legal assaults (Open access)
See more from MedicalBrief archives:
Judge orders Ramaphosa to hand over records on NHI Bill
Medical schemes and union kickstart NHI legal challenges
BHF’s legal challenge to NHI taken to ‘wrong court’, says Presidency