By Thapelo Molefe
The Board of Healthcare Funders will on Tuesday ask the Constitutional Court to declare the National Health Insurance (NHI) Act invalid, saying that Parliament failed to ensure meaningful public participation before adopting the legislation.
In a statement on Monday, the BHF said its application does not oppose universal health coverage but instead challenges the process followed in passing the law, which is set to overhaul South Africa’s healthcare system.
“BHF’s case is not a challenge to the principle of universal health coverage. BHF supports the need to expand access to quality, affordable healthcare for all South Africans,” said BHF managing director Dr Katlego Mothudi.
He added that the legal challenge centres on whether Parliament fulfilled its constitutional obligations.
“The case is about whether or not Parliament complied with its constitutional duty to facilitate meaningful public participation before passing legislation that will fundamentally reshape the country’s health system,” Mothudi said.
The BHF says that although public hearings were held during the legislative process, they were insufficient because key information about the NHI scheme was not made available. This included details on the proposed basket of services, funding model, operational design and implementation framework.
“Without this information, meaningful engagement and subsequent decision-making was impossible,” Mothudi said, adding that Parliament was therefore unable to properly assess whether the legislation would achieve its objectives.
The organisation further contends that the public participation process became superficial.
“In our submission to the Constitutional Court, we argue that the process effectively became a ‘tick-box exercise’ by members of Parliament, rather than a genuine engagement with input from the public,” said Mothudi.
“Accordingly, the Bill was adopted without a clear understanding of its financial implications or its likely impact on advancing access to healthcare,” Mothudi said.
The BHF also raises concerns about the extent of powers granted to the Health Minister under the Act, saying that key elements of the scheme were deferred to future regulations with limited parliamentary oversight.
It further questions the rationality of the law, citing the absence of updated financial modelling to support the scheme’s affordability and sustainability.
The NHI Act, signed into law in 2023, aims to provide universal access to healthcare by creating a single national fund that will purchase health services for all residents.
However, it has faced criticism from various stakeholders, including medical schemes and healthcare providers.
Mothudi said the court action is intended to safeguard both the legislative process and the credibility of healthcare reform.
“This case is not about resisting healthcare reform. It is about ensuring that reform of this scale is built on a lawful, transparent and credible process,” he said.
“The BHF’s court action is ultimately about protecting the integrity of healthcare reform and the rights of all South Africans to a transparent, lawful, and effective health system.”
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