On 15 May, Pres. Ramaphosa signed into law the National Health Insurance (NHI) Bill during a public ceremony.
This confirmed Minister Khumbudzo Ntshavheni’s statement in January that the enactment would take place before the 2024 elections.
Universal access to healthcare is an ANC promise Z with some calling it a public display and electioneering, given it was signed days before the elections held on 29 May.
The bill has become an act. However, its actual implementation may be stalled for some time.
As the president himself stated during the signing ceremony, the act will be implemented in stages. This could potentially take several years, if the previous, pivotal piece of health-related legislation, the National Health Act – which took more than a decade to become fully operational – is anything to go by.
Each stage of implementation will bring the potential for a slew of unique legal challenges for the act and its implementation – legislation that could combat the implementation of the NHI Act and the missing money bill.
An act such as the NHI Act has massive financial and economic ramifications. It must be accompanied by a money bill drafted by the National Treasury, setting out the financial aspects of the primary act.
Should the implementation of the NHI proceed without clarification of the rand-and-cent aspects, legal challenges may be brought.
Further pieces of legislation that could be used to combat the implementation include the Consumer Protection Act (CPA), aimed at establishing and protecting consumer rights, such as the right to quality goods and services and to select the supplier of your choice; the Competition Act, which fights against restrictive practices and the abuse of a dominant position; or the Protection of Personal Information (Popi) Act, with possible implications for the large gathering of personal information that will be necessary for the NHI system.
The Promotion of Administrative Justice Act (Paja) is another piece to consider.
Various constitutional challenges are also rumoured to be in the pipeline. Solidarity, the DA, the Health Funders Association (HFA), the South African Medical Association (Sama), the Board of Healthcare Funders (BHF), the South African Health Professionals Collaboration and Business Unity South Africa (Busa) all previously suggested that they may consider or outright take legal action against the act as soon as Ramaphosa’s “special pen” touches paper.
The NHI Act may be constitutionally challenged on various grounds, and based on concerns that the law be clear, unambiguous, and not vague. The lack of clarity on the benefits and cover provided by the NHI scheme has raised many issues. Not only is the “what will be covered?” unclear, but also the “who will be covered?”
As the ink dries on the NHI Act, the stage is set for legal dramas to unfold, indicating that the act’s destiny will be decided by a gavel rather than a pen.
Dr Larisse Prinsen is a senior lecturer in the Department of Public Law at the University of the Free State (UFS).
