President Cyril Ramaphosa will tell the Constitutional Court that the contentious National Health Insurance (NHI) represents a step forward in redressing the unequal health-care system inherited from the apartheid regime, which excluded black people.
The high-stakes constitutional challenge to the process followed by parliament in passing the NHI Bill is led by the Board of Healthcare Funders (BHF), which argues the health-care reform would bankrupt the country — and that the president rushed his assent to it for electioneering purposes ahead of the 2024 elections.
The matter is set to be argued over three days, starting on Wednesday, and the court could order parliament to redo the process, potentially pushing the matter into the 2029 election season.
Ramaphosa, in papers filed on his behalf by the state attorney and seen by Business Times, says he does not wish to enter into the merits of the public participation challenge, arguing that doing so would breach the separation of powers provisions of the constitution.
However, the papers maintain that NHI is essential for South Africa, and deny any political considerations in his decision to assent to the bill on May 15 2024.
“The reality is that the health-care system inherited from apartheid excluded the majority of South Africans, predominantly black citizens, from accessing quality health-care services. Health care in this country is strongly influenced by socioeconomic inequality and the concomitant inequality based on race and gender,” the president’s legal adviser, Geofrey Mphaphuli, said in an affidavit.
“For avoidance of any doubt, I expressly deny on behalf of the president that the passage of the bill was influenced by elections or electioneering.”
Health care in this country is strongly influenced by socioeconomic inequality and the concomitant inequality based on race and gender.
— Geofrey Mphaphuli, president’s legal adviser
The BHF has taken issue with the public consultation process followed by parliament, saying it was inadequate and amounted to inviting the public to speak to a “legislature that had already made up its mind”.
The BHF will argue that parliament passed one of South Africa’s most far-reaching statutes of the democratic era without proper regard to the cost implications and whether the fiscus and taxpayers would be able to afford it.
The organisation — which represents about 65 medical schemes, administrators and managed-care organisations covering around 4.5-million beneficiaries — said the costing of the NHI should have been a primary consideration for the legislature, and that its absence reduced public participation to a mere formality.
“The NHI Bill could not be properly assessed by the public without clear information on its projected costs and sources of funding. The cost and funding of the NHI scheme would have informed whether the draft law was workable and sustainable within the country’s scarce resources,” the BHF said in its papers.
“Yet this issue received no attention during the legislative process. Nor was the public provided with this information by parliament or the department. The information could not be provided — parliament never had it; the department still does not have an answer.
“After all, the draft law proposed a fundamental restructuring of how health care is financed and delivered in the country, with significant implications for public expenditure and revenue-raising measures, on any conceivable model of NHI.”
Estimates for NHI have ranged from R450bn to more than R1-trillion annually once fully implemented.
Health minister Aaron Motsoaledi will tell the apex court that the BHF places undue emphasis on costing what is intended to be a long-term project.
He is expected to argue that the flexible nature of the NHI scheme makes precise cost estimates for a prolonged implementation period impractical, given that both the basket of services and the pace of implementation are not predetermined and remain subject to available financial resources.
“Indeed, the department was advised by economists and the World Health Organisation that it would be a futile exercise to try and cost a 25-year project of this nature. Inexplicably, BHF contends that information pertaining to the costing and funding of the NHI ‘could readily have been sourced and furnished’ and ought to have been considered by parliament,” Motsoaledi’s court papers state.
“However, this could never be the case, given that the bill does not determine the basket of services. BHF does not expand on this apparently readily available financial modelling, what basket of services it considered, when such services would be made available, or to whom they would be provided.”
Legal challenges
The NHI is facing several simultaneous legal challenges, which have been put in abeyance pending the Constitutional Court’s determination on the legality of the legislative process followed by parliament before the president signed the bill into law.
The Pretoria high court in February interdicted the health minister and the president from proclaiming or implementing any provision of the NHI Act until the pending public participation challenges are resolved.
Western Cape premier Allan Winde will argue that the National Council of Provinces fell short of its obligations in, among other things, refusing an extension to the province of a deadline to submit the outcome of its consultation on the NHI Bill.
Court papers show that National Assembly speaker Thoko Didiza will reject both the BHF’s and Winde’s claims that the public consultation process was flawed.
Didiza will point to about 338,000 written submissions received from members of the public, as well as public hearings in all nine provinces — attended by more than 11,500 people — as evidence that exhaustive public consultations were held.
She will argue that, in addition to national processes, provincial legislatures held 60 public hearings at which citizens were given the opportunity to make oral submissions on the bill.
“There is no evidence that parliament approached the public participation hearings with a closed mind or that it had no intention of accommodating any changes,” Didiza’s papers state.
“This averment is based entirely on BHF’s contention that because the bill does not reflect its views, the outcome was flawed.
“Parliament accepts that the NHI is important legislation to achieve universal access to health care. It also admits that it fundamentally alters the tiered system of health care that has existed since apartheid.”
The National Health Insurance reform has its origins in the ANC health plan of 1994, which proposed a mandatory insurance system. The policy provides for a state-funded, state-administered financing model aimed at delivering universal, free and equitable health care.
However, critics argue it could undermine the private health-care system and limit patient choice.
Motsoaledi’s court papers state: “This is not a case in which BHF can plausibly claim to be a vulnerable or disinterested constitutional litigant seeking only to vindicate rights in the public interest. Although party status is not determinative, the character of this litigation remains relevant.
“BHF is an organised industry body advancing objections that are closely bound up with its members’ institutional and commercial interests in the existing dual health-care funding landscape.”
Business Times