The thinking and strategy behind a Constitutional Court challenge of the National Health Insurance (NHI) law emerged at a medical conference last week. The Board of Healthcare Funders (BHF) and Business Unity South Africa (Busa) initiated the challenge to the law, which was signed by President Cyril Ramaphosa this week.
Neil Kirby of Werksmans Attorneys, for the BHF, says awarding regulatory powers to the health minister is clumsy and legally impractical. “From a constitutional point of view, you either get it right from the get-go or you don’t. If we don’t like what’s in front of the president for signing, we have an obligation to test it against the constitution.”
He says placing regulatory powers in a single person that would affect an entire country is shaky legally, because “you can’t fix an act through regulation”. He says an entire raft of complementary acts would have to be altered to render NHI feasible, citing a section that nullifies maternity benefits in the Medical Schemes Act.
Kirby and David Geral, a partner in Bowmans, acting for Busa, says the applicants are not challenging the concept of the law, but the content. “There are some technical issues that could have been resolved within a few months,” says Geral.
He says the law flouts the separation of the powers of the central government and the provinces, many of which have their own criteria. It removes provincial discretion and centralises the NHI fund in the national health department.
He says the big problem is section 33, which has huge implications for medical schemes, relegating them to an insignificant, complementary position.
Another “unrealistic” part of the law, says Geral, involves complaints that could require a tribunal of five to resolve.
“What if somebody has a conflict of interest and must recuse themselves? The minister must replace them while the hearing is on the go. Does that mean he must appoint a new panel for every hearing where this arises?” asks Geral. “There are already long delays with the [much smaller] regulatory Council for Medical Schemes. Here there will be thousands more complaints. It’s a capacity issue that reduces access to both justice and health care.”
The president is obliged to ensure [the lawl] meets all the constitutional requirements, which right now is a very tall order
— David Geral
Kirby says his team has studied transcripts of the public hearings on the bill. Once it reached the National Council of Provinces, it was put through unamended, despite there being many objections. The BHF’s legal team wrote to Ramaphosa, bringing “fundamental constitutional errors” to his attention “in a shot across the bow”.
After no response, the lawyers sent a more formal response, “which was also ignored”, says Kirby.
Geral says if the president signed in good faith, “that’s OK — we can still challenge. But the president is obliged to ensure it meets all the constitutional requirements, which right now is a very tall order.”
Both lawyers say NHI is “merely one ball in the air”. Others are the prescribed minimum benefits review recommended by the health market inquiry, contestation regarding low-cost benefit options and the certificate of needs legislation, which requires doctors to apply for all they do and plan to do, including opening a practice and the medical equipment to be used.
“You have to look at all of this together,” says Kirby. “At any moment one of those balls could drop and change the regulatory landscape completely.”
Before the bill was signed Geral said there had been time for constructive, evidence-based engagement. “Why not that, rather than forcing a legislative process through? That puts the judiciary in the position of having to rule on a political issue.”
Mark Blecher, chief director for health & social development in the National Treasury, says public health spending peaked in 2020 during Covid. It declined by R6bn-R8bn between the 2022/2023 and 2023/2024 financial years.
“We need an additional R15bn for health right now, and increasing tax rates is not easy,” he says. “It’s likely that NHI will be funded gradually over many years. Many major reforms are required. The first is in the public sector, with the shifting of functions [in terms of] NHI, which affects staff and facilities. These are huge, and will take a long time to scale up. So subsequent scaling up of the private sector is likely to be slow.
“While we’ve taken a conservative fiscal stance, debt and interest costs have risen significantly and need to be contained,” Blecher says.
Asked by the FM how long he thinks it would take before the health minister triggers section 33, Blecher says: “Probably 30 years or more.”
Would you like to comment on this article?
Sign up (it's quick and free) or sign in now.
Please read our Comment Policy before commenting.