Imagine being promised a better healthcare future only to discover that the blueprint is blank and the project has no budget. That’s what the National Health Insurance (NHI) Act offers South Africans today, writes Katlego Mothudi, MD of the Board of Healthcare Funders in Business Times, adding that what should have been a shared plan to realise universal health coverage (UHC) has instead become a source of uncertainty, exclusion and constitutional crisis.
He writes:
The Board of Healthcare Funders (BHF) has supported the vision of UHC for more than a decade, but we cannot support a law that threatens to derail it. The NHI Act is unconstitutional, unworkable and unlikely to deliver the health justice South Africans deserve.
That’s why we have taken the unprecedented step of launching two linked legal challenges.
These cases are not about blocking health reform. They are about protecting its integrity and ensuring it is achieved lawfully, sustainably and transparently.
The NHI Act, despite its stated intentions, is deeply flawed both in law and design:
• It lacks a credible financial plan. Parliament passed the law without any updated costing, despite estimates ranging between R300bn-R500bn annually, nearly double the current health budget. No feasibility analysis or updated fiscal impact study accompanied the legislation.
• It delegates core legislative decisions to the executive. The act gives sweeping powers to the Minister of Health to decide which services will be covered, who can deliver them, and what they will be paid without adequate parliamentary oversight or public accountability.
• It is structurally vague. Key terms are undefined, regulations are missing, and the so-called “basket of services” remains unspecified.
• It risks regression in health outcomes. Instead of building on existing public-private collaboration, it imposes a one-size-fits-all system that may reduce, not expand, access to care, particularly in underserved areas.
• It undermines constitutional rights and eliminates choice. Section 33 prohibits medical schemes from offering services covered by the NHI, effectively outlawing private alternatives for core care, eroding the right to freedom of association and healthcare choice – and may violate Section 27(2) of the constitution by narrowing rather than progressively expanding access to care.
The BHF made detailed submissions during the public participation process, and wrote directly to the President, warning of the Bill’s constitutional shortcomings. We offered constructive proposals …These were ignored.
Only after these efforts failed did we turned to the courts.
Our first seeks to review the President’s decision to sign the Bill into law; our second phase application, now before the Constitutional Court, challenges Parliament’s failure to ensure meaningful public participation, as required by Sections 59 and 72.
Public hearings were rushed, poorly managed and procedurally hollow. No material changes were made to the Bill, despite overwhelming input.
These two cases …. reveal a failure of two key constitutional guardians, Parliament and the Presidency, to respond to public concerns, act transparently, and place the health and well-being of citizens above political expediency.
It is not only the right, but the public duty, of civil society to hold government accountable when such failures occur. Our legal challenges are intended to uphold, not undermine, the values of a free, fair, and functioning democracy.
We know reform is necessary. But we believe that a viable NHI must emerge from genuine collaboration between the public and private sectors, not at the expense of one or the other.
Health reform cannot come at the cost of constitutional integrity. If we lose the foundations of good governance, even the best intentions will fail.
See more from MedicalBrief archives:
NHI hit with two more legal suits
BHF’s legal challenge to NHI taken to ‘wrong court’, says Presidency