Can a new government repeal the NHI Act?

President Cyril Ramaphosa’s signing of the National Health Insurance (NHI) Bill on Wednesday doesn’t necessarily guarantee that it will become law, especially if the ANC loses power, says University of Cape Town constitutional law expert Pierre de Vos. 

Ramaphosa strategically signed the bill into law 14 days before the election on May 29. 

De Vos says a new government “may decide not to implement it and repeal the new NHI Act if they don’t agree with the law, but to do that they would need the majority of votes in the National Assembly”.

Universal access to health care — giving everyone access to quality health care regardless of how much they can pay — is high on the agenda of most political parties contesting the election.

Bhekisisa has analysed the manifestos of 16 parties; 14 of them address universal access to health care in their manifestos, but they disagree that the NHI is the most effective way to achieve such care. 

Surveys show ANC support is dwindling

Results from an Ipsos poll in April showed that voter support for the ANC, the party that’s held absolute power for the past 30 years, is hovering around 40%. If the ANC doesn’t get at least 50% of the votes, it would likely have to form a coalition with smaller parties; the lower the proportion of votes the party gets, the higher the possibility of a coalition is. 

Political parties such as the DA, and trade union Solidarity, as well as the institutions representing medical schemes, such as the Board of Healthcare Funders, have indicated that they plan to take the government to court to test the constitutionality of the act. 

But Ramaphosa was adamant on Wednesday: “For those who would like to continue to enjoy privilege, you are on the wrong boat; the boat we’re on is equality.   

“What we’re trying to build is a Rolls-Royce health-care system for everyone.”

At the moment, South Africa has an unequal, two-tiered health system, where health spend is split about 50/50 between public and private services — yet about 80% of the country’s population depend on using state facilities.

NHI aims to address this uneven distribution of health spending by merging the public and private health-care systems into one and creating a fund that will act like a giant state medical scheme which will buy health services at set prices from both sectors. 

Medical aids as you know them will disappear

Private medical schemes will eventually cease to exist in their current form, as the NHI Act doesn’t allow them to cover the same services as those that the NHI Fund will buy on behalf of citizens. 

The president now has to make a proclamation in the Government Gazette for the act to come into effect. 

Moreover, several civil society organisations, politicians and academics are doubtful about trusting the government with administering funds in a transparent manner and to fix a broken public health system without money being squandered.

Several cases of corruption and irregular spending over the past few years, such as the Digital Vibes scandal during the Covid pandemic and the misspending of money at Tembisa Hospital on the East Rand, have raised fears that the NHI Fund will become what some experts call another Eskom, a big pot of money that’s used for everything other than what it should be used for. 

How NHI will be funded and how much it will cost are still unclear. The NHI Act suggests that general tax revenue, payroll taxes for employers and employees, surcharges on personal income tax and the reallocation of medical scheme tax credits should be used to pay for the scheme. On Wednesday, Ramaphosa said “contributions from a broader spectrum of society, emphasising the shared responsibility we all have to achieve equity”.

When will medical aids disappear? 

NHI will be rolled out in two phases; the first phase (2023-2026) is under way and the second phase will end in 2028. But in practice the scheme will take significantly longer than that to materialise.

The first phase is mostly about establishing the NHI Fund and starting to repeal or amend at least 10 other pieces of legislation, such as the Medical Schemes Act of 1998 and Health Professions Act of 1974, to enable the scheme’s implementation.   

In June last year, the health department’s NHI head, Nicholas Crisp, told Bhekisisa on Health Beat that “full implementation will take decades”. 

“You won’t feel anything in the first year, nothing,” he said. “[The system] won’t change in a short time; it will take a couple of years before we see the first steps.”

But, Crisp said, “within the first five years after the bill becomes an act, there will likely be fewer medical schemes in the country and their benefit packages will look more or less the same, which will set the groundwork for the basic package NHI will offer”.

When will medical aids in their current form disappear? 

Crisp said the country’s more than 70 medical schemes are not sustainable. “There are big ones, and some are very small, with small risk pools. I see a realignment of medical schemes, where we end up with fewer schemes and which offer fewer packages and, instead, one compulsory package, in which everybody knows what they’re getting for a set price, as negotiated and fixed between the state, the Council for Medical Schemes, the Competition Commission and the medical aids. 

“That’s what I’d hope to see in the next five years.”

Additional reporting by Sipokazi Fokazi

This story was produced by the Bhekisisa Centre for Health Journalism. Sign up for the newsletter.