Photo for illustration. (Photo: Hush Naidoo Jade/Unsplash)
The Board of Health Care Financiers (BHF) will argue before the Constitutional Court on Tuesday that the parliamentary process that led to the adoption of the National Health Insurance Act (NHI) in 2023 was unconstitutional.
According to the council, parliament failed to fulfill its constitutional obligation to facilitate “meaningful public participation” before the law was passed. The BHF consequently asks that the law be declared invalid and set aside.
The council emphasizes that its court case is not opposed to the principle of universal health care. The case is also not about opposing health care reform, but about whether parliament has fulfilled its constitutional duty.
Pres. Cyril Ramaphosa on Wednesday at the Union Building in Pretoria during the signing of the law. (Photo: GCIS)
‘Insufficient information’ hindered participation
According to the BHF, the public participation process was fundamentally flawed because neither the public nor the parliament had sufficient information to assess the bill properly. Critical details such as the proposed benefits package, financing model and implementation framework were unclear, according to the council.
“Without this information, meaningful involvement and decision-making was impossible,” the BHF argues.
The council also warns that the legislation was passed without a clear understanding of the financial implications and its real impact on access to health care.
The BHF also labels the legislation as flawed. According to the council, there is little evidence that public participation really had a significant influence on the final law, while key elements of the NGV – such as the scope of benefits and the financing model – remain insufficiently defined.
Furthermore, the council warns that excessive power is delegated to the minister of health, with limited parliamentary oversight, and that the law was adopted without affordability studies and detail on practical feasibility.
The BHF makes it clear that public participation is not a mere formality.
“Meaningful public participation is not a technical detail – it is how better and constitutionally valid laws are made,” says the council.
The council further argues that the process was a “tap-down exercise” and did not enable real public involvement. This undermined the legitimacy of the law.
The NHI Act has far-reaching consequences for patients, healthcare professionals, medical schemes, employers and taxpayers. The BHF believes that legislation of this scope must be developed through a “transparent, informed process”.
The council says its court action is ultimately aimed at protecting the integrity of healthcare reform and the rights of all South Africans.