Solidarity asks court to declare NHI law unconstitutional

Trade union Solidarity has asked the high court in Pretoria to declare the National Health Insurance (NHI) Act unconstitutional and invalid, setting in motion a legal battle with potentially far-reaching implications.

The act lays the legislative foundation for extensive reforms aimed at achieving universal health coverage, which the government promises will provide all eligible patients with care that is free at the point of delivery regardless of their economic status. It was signed into law by President Cyril Ramaphosa two weeks before the May 29 election, dismaying organised business, healthcare professionals and other stakeholders who had hoped he would send the contentious legislation back to parliament for further work.

More than half a dozen organisations have signalled their intention to litigate.

Solidarity launched its high court application on Friday, citing as respondents the health minister, the health director-general, the president, the finance minister and the Treasury. It indicated previously that it would serve court papers if Ramaphosa did not withdraw the legislation before the May 23 deadline set by its legal team.

The NHI Act was vague, impractical and totally unaffordable, Solidarity’s deputy CEO for legal affairs, Anton van der Bijl, said in his founding affidavit.

It was unconstitutional on several grounds, including that it threatened medical scheme members’ existing access to healthcare, he said. Section 27 of the constitution not only placed an obligation on the state to progressively expand access to healthcare, but also imposed on the state a duty to avoid retrogressive measures, he said.

Section 33 of the NHI Act states that medical schemes will be restricted to providing “complementary cover” only for benefits that are not covered by NHI once the scheme is fully implemented.

Unconstitutional

Van der Bijl said the NHI scheme created under the act was vague and thus unconstitutional. The rule of law, enshrined in the constitution, said laws must be written in a clear and accessible way. Aspects of the act that were vague included lack of detail on how the NHI would be funded and the services it would provide. It was unclear when the NHI would be fully implemented and whether private healthcare providers who did not have contracts with the NHI could provide services to the public, he said.

Health department spokesperson Foster Mohale said legal threats would not deter the government from transforming the health system “to benefit all citizens, rich and poor, young and old, suburban and villager”.

“Amazingly, most of these anti-NHI Act [people] are medically insured, they are selfish and don’t act in best interests of the ordinary members, [the] majority of whom are black and from poor backgrounds. They can’t imagine themselves sharing a hospital ward with their low-level members,” he said.

While the act has been signed into law, none of its sections has yet been proclaimed, which means none of its provisions has been brought into effect.

“We will make an announcement as soon as sections are proclaimed, and regulations will [provide] details of how this will be implemented,” Mohale said.

kahnt@businesslive.co.za