President Cyril Ramaphosa is appealing a judgment that orders him to produce a record of the documents and information he considered before signing the National Health Insurance (NHI) Bill into law.
The Gauteng High Court handed down the judgment earlier this month when Judge Mpostoli Twala ruled on the president’s jurisdictional objection to an application brought by the Board of Healthcare Funders (BHF). The BHF, which represents medical schemes, is challenging the president’s decision to sign the bill into law and wants to see what he considered before he signed. Twala ordered Ramaphosa to produce the record by Friday May 16.
But instead of producing the record yesterday, Ramaphosa and Health Minister Aaron Motsoaledi notified the court that they plan to appeal the ruling to the Constitutional Court by May 27. Should that court refuse to hear the matter, they will proceed with an appeal to a full bench of the High Court or to the Supreme Court, Ramaphosa and Motsoaledi’s papers said.
This week Helen Michael, a director of healthcare and life sciences and at Werksmans Attorneys, told the BHF conference held in Cape Town, that the BHF was expecting the president and the minister to appeal Twala’s judgment handed down on May 6.
The court application for a review of the president’s decision on the NHI Act began when the BHF filed its application in the High Court in Pretoria in May last year, days after the president signed the NHI Bill into law.
The BHF’s application argues that various petitions were sent to the president addressing grave and serious constitutional concerns with the NHI Bill, Michaeal said. The medical scheme body argues that had the president considered and applied his mind to those petitions, as he was required to do under the constitution, he would not have signed the NHI Bill, Michael explained.
The BHF’s application to review the president’s decision required him to file the report of his decision by 20 June last year. Instead of filing the record of the documents and information he considered, the president and the minister of health raised points of law and jurisdiction and asked the court to dismiss the application without considering the merits.
Michael said the president and the minister argued that:
- Only the Constitutional Court has the jurisdiction to hear the matter.
- The president’s decision cannot be taken on review because of the powers he has in terms of the constitution.
- Even if the president’s decision is in fact capable of review, the president does not need to produce a record for his decision.
The BHF and Werksman’s view is that the state raised these issues to delay the hearing of the application while various provisions of the NHI Act are brought into operation as then when the merits of the case are heard, the state could argue that the court should not be able to “unscramble the egg”, Michael said.
Doctors join the application
The South African Private Practitioners Forum (SAPPF), which represents 4500 doctors and specialists, also challenged the president’s decision in its case against the NHI Act filed in October last year. As the two matters raised similar jurisdictional issues, they were heard together.
When Justice Twala handed down his judgment on the jurisdictional issues in both matters, he ruled that:
- The Gauteng High Court has jurisdiction to entertain the matter.
- The president’s decision to assent to and sign the NHI Act is reviewable.
- The president must furnish the record of his decision on or before 16 May 2025.
The judge said the court did have jurisdiction because in assenting to and signing a Bill into law, the president plays a role in the legislative process. He said the matter was reviewable because the president had exercised a public power which is part of his constitutional duties and responsibilities.
Justice Twala said to suggest that the president, as head of the state, is not obliged to produce the record of decision would be tantamount to putting the president above the law. He said the record of decision was necessary for the court to review the president’s decision.
The president and the minister of health in their papers filed yesterday argue that Twala’s judgment blurs the line between the roles of the legislature and the head of state. They argue that the president’s role in assenting to and signing a bill is not that of legislating.
Their papers also argue that the court contradicted itself in accepting that the president had a duty to scrutinise and assess the constitutionality of the NHI Bill, while finding that the matter did not need to be heard by the Constitutional Court.
BHF anticipated Constitutional Court case
Michael said that when the president and the minister took the stance that the application should be heard in the Constitutional Court, the BHF had proactively launched its application for review in that court.
The BHF in August last year asked the Constitutional Court to hear the matter only if the High Court ruled in it’s favour and the state respondents sought to appeal that judgment. This is what has now transpired.
In addition to preparing for the appeal, Michael said the BHF plans to institute two further legal challenges against the NHI Act.
The first is a legal challenge in the Constitutional Court against the public participation process held before the NHI Act was enacted. The challenge alleges that the process was meaningless and flawed. Many comments and expert views were submitted on the NHI bill, but it passed into law with very few changes, leaving those who commented feeling like they had not been heard.
The second challenge, which has yet to be filed, highlights the provisions of the NHI Act that the BHF believes are unconstitutional. It includes expert opinion on why the act will fail to bring about universal access to healthcare and has the potential to negatively effect on human rights, including the right to access to healthcare.
Other challenges
At the BHF conference, Glenn Penfold, a partner at Webber Wentzel representing the SAPPF, said the SAPPF was also challenging the constitutionality of the act as it affects South African’s rights to dignity, life, property, freedom of trade and profession.
The SAPPF was particularly concerned about the accreditation of healthcare providers as the Act says they will be required to comply with treatment protocols, referral pathways and national pricing regimens that are not defined in the Act, he said.
The vagueness of the “empty shell” NHI Act left healthcare professionals and patients unsure how to comply, Penfold said.
The SAPPF is also challenging the irrationality of embarking on a massive rearrangement of the healthcare sector without the government satisfying itself on how much it is going to cost, how it will be funded, whether it is affordable and what other policy sacrifices need to be made to make it work, he said.
Penfold said the SAPPF argues that the NHI Act is not a reasonable way to facilitate access to healthcare for all South Africans and is retrogressive as it does not establish a suitable statutory framework with suitable regulations.
Elsabe Klinck, managing director of Klinck & Samuels representing the South African Medical Association (SAMA), said in addition to similar challenges to those in other cases, SAMA’s application addressed children and foreign national’s access to healthcare that the NHI Act takes away.
It also addressed the removal of rights under social security measures such as those provided by the Road Accident Fund and Compensation Fund, Klinck said.
The application includes expert reports on how the NHI Act would affect the workload of certain professionals and change how public sector doctors are employed.
SAMA court papers also point out that the NHI Act is not the only way to achieve universal health coverage and that most countries start by plugging gaps in their healthcare in the way that the social health insurance proposals of the early 2000s suggested South Africa should, Klinck said.
The NHI Act is also being challenged by the Hospital Association of South Africa and trade union Solidarity.
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