Simon Nare
The Constitutional Court has heard that Parliament allegedly failed to ensure meaningful public participation before passing the National Health Insurance (NHI) Act, and that the law should be declared invalid and set aside as a result.
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On the first day of a three-day hearing at the apex court on Tuesday, the Board of Healthcare Funders’ (BHF) legal representative, Advocate Bruce Leech SC, poked holes in the parliamentary process and submitted that Parliament had failed to answer critical questions, including in its answering affidavits before the court.
BHF, which represents healthcare funders linked to about 65 medical schemes and 4.5 million beneficiaries, is challenging the Act, arguing that the public participation process fell short of constitutional requirements.
It also argued that Parliament could not engage meaningfully with the public without clear answers on the NHI’s cost, funding model and benefits.
Leech argued that National Treasury and the South African Revenue Service had not meaningfully contributed to the process, and that Parliament had relied heavily on the Department of Health, which he said had publicly stated that it was not part of the parliamentary public participation process.
“The idea that there was dialogue or collaboration or interaction (with the public) is palpably and demonstrably false. That did not occur in this case. So, the standard that parliament has set itself in the framework has not been met.
“Parliament has failed to comply with its obligation to facilitate a meaningful public involvement before passing the bill. The case is explicitly and unequivocally about meaningful participation,” argued Leech.
He submitted that Parliament had repeatedly been called upon, including in the founding papers, to show where meaningful public participation occurred, but had fallen short each time.
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Leech further submitted that BHF was not opposed to universal healthcare, but to the process followed by Parliament. He said BHF had offered its resources to assist Parliament in fulfilling its obligations, but that the offer was not taken up.
“Those offers of assistance have been repeated over and over again and they have never been taken up. They weren’t taken up by the department and importantly, the offers of assistance and the inquiries that were directed to parliament were not taken up by parliament either.
“So, it’s not a question, as the respondents would have this court believe, where this court is being asked to give its stamp of approval or conversely to shut down universal healthcare. That is not the issue. The issue is and is solely meaningful public participation in legislation,” he said.
That, he added, was, by any account and on everybody’s version, substantial public interest litigation that cut across most spheres of life.
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Leech alleged Parliament never intended to listen to the public and that, although it said it had received thousands upon thousands of written submissions, the process was not meant to be a quantitative exercise, but a qualitative one.
Leech submitted that the process did not need to restart from the beginning, but should return to the parliamentary stage, where Parliament could deal with the critical questions that had not been answered.
He said it would serve no purpose to restart the process from scratch, but that Parliament “should add meat to the bones”.
BHF is not the only entity legally challenging the implementation of the NHI. Other ongoing legal challenges involve Solidarity and the Hospital Association of South Africa.
The NHI Act, which seeks to establish a framework for universal, state-funded healthcare, was signed into law by President Cyril Ramaphosa in May 2024. Its implementation has been delayed while the Constitutional Court considers the public participation challenges and other disputes over the legislation.
The hearing continues.
