Constitutional Court to decide fate of NHI Act amid public participation Concerns
The Constitutional Court heard cases concerning South Africa’s controversial National Health Insurance (NHI) scheme. The case was brought by the Western Cape Provincial Government and the Board of Healthcare Funders (BHF), challenging the drafting of the Act.
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The Constitutional Court has reserved judgment on the National Health Insurance (NHI) Act after two days of hearings.
The Board of Healthcare Funders (BHF) and the Western Cape Government (WCG) argue that Parliament failed to engage in meaningful public participation before passing the Act.
On Wednesday, counsel for WCG, Geoff Budlender SC, argued that in at least two provinces, the National Council of Provinces (NCOP) breached processes and in so doing failed to provide an opportunity to influence the law-making process.
The WCG contended that, in the Western Cape where vigorous engagements were held, the timetable was unduly curtailed and unreasonable, as it requested further engagements but was denied the opportunity.
This was in contrast to Gauteng province, where the NCOP had not been transparent about whether it had received a report from the Select Committee on Health and Social Services, detailing where and who the representatives were that attended the meetings, and whether any were held at all.
Budlender said in the absence of reports or an affidavit from Gauteng's select committee representative who attended and can account for the engagements held, there was a failure of compliance, and its “silence is deafening”.
Rebutting the arguments, Parliament and the Minister of Health submitted that a parliamentary portfolio committee had afforded the public three months to submit written comments on the Bill, and in this process, the committee received 338 891 written submissions.
Additionally, the portfolio committee organised 29 virtual meetings between May 2021 and February 2022, where about 114 stakeholders presented oral submissions, along with written documents.
On this basis, the Minister of Health said public views did filter through by multiple channels and that the public participation process was held.
President Cyril Ramaphosa has agreed to delay the proclamation of key sections of the NHI Act until the Constitutional Court hands down its judgment.
Western Cape MEC for Health and Wellness, Mireille Wenger, said the hearing is critical in protecting the rights of residents of the Western Cape to be heard on a matter that goes to the heart of their healthcare.
“The NHI Act proposes sweeping reforms to South Africa’s health system, directly affecting how healthcare services are governed and delivered. It is essential that such reforms be shaped through meaningful public participation that our constitution requires.”