NHI bill is 'constitutionally sound', state law adviser tells parliament

29 August 2019 - 18:49 By Andisiwe Makinana
Acting chief state law adviser Ayesha Jahoor told MPs that the NHI bill complied with Section 27 of the constitution.
Acting chief state law adviser Ayesha Jahoor told MPs that the NHI bill complied with Section 27 of the constitution.
Image: 123RF/everydayplus

The state's top legal minds have given the proposed National Health Insurance bill their stamp of approval in terms of its constitutionality.

Acting chief state law adviser Ayesha Jahoor told MPs on Thursday that the bill complied with Section 27 of the constitution, which provides for everyone a right to have access to health care services, saying that the state should take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of these rights.

Jahoor said the bill, which her office certified as “constitutionally sound”, should be regarded as a measure to give effect to this right enshrined in the constitution. It also complies with SA's international obligations.

“Parliament, in passing the proposed legislation, would not be acting capriciously or arbitrarily or in violation of rule of law, or in violation of any provision of the constitution, should it enact this bill,” said Jahoor.

She was appearing, alongside health minister Zweli Mkhize, before the National Assembly's portfolio committee on health.

Mkhize was presenting the bill to MPs for the first time since it was tabled in parliament during the parliamentary recess three weeks ago.

The bill seeks to provide equal primary health care for all South Africans regardless of their employment and financial status - but it has drawn criticism from opposition parties and from some experts in the health sector who argue that South Africans should not be compelled to join the proposed scheme whether they wished to or not.

Its roll-out was expected to cost around R250bn a year.

The DA has already threatened to go to the Constitutional Court to stop the implementation of the bill should it become law.


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DA leader Mmusi Maimane and the party's spokesperson on health, Siviwe Gwarube, told journalists two weeks ago that the bill was not consistent with schedule 4 of the constitution in that it usurped the powers of provinces in the administration of public health care.

"If it doesn't pass constitutional muster, I'm willing to go to whatever court there is in the land to fight this matter. Don't undermine the powers of provinces, it's expressed in the constitution. We cannot be passing laws that will not pass constitutional muster,” said Maimane at the time.

But Jahoor argued that the provisions of the bill were rationally connected to the objectives of providing sustainable and affordable universal access to quality health care services for all in the republic.

The intention of the NHI bill was to further comply with Section 27 and to comply with international obligations.

“The combined constitutional obligation of Section 27 of the constitution and the binding international obligations which must be given effect to motivate sufficiently for us the rationality of the bill,” she said.

She said the concurrent national and provincial legislative competence referred to in the constitution meant that both parliament and provincial legislatures are equally competent and may legislate on matters listed in schedule 4.

In this context, the drafters of the constitution foresaw a situation where there could be a conflict between national and provincial legislation regarding a matter listed in schedule 4.

The certification process that the bill undergoes entails checking the draft bill in respect of its compliance with the constitution, the rule of law and whether the government policy is properly reflected in the draft bill.

The office of the state law adviser is required to provide the cabinet with a legal opinion on legislation to be considered by it. After cabinet approval for the legislation’s tabling in parliament, the law advisers must either certify the legislation as being constitutionally compliant in their opinion, or provide parliament with a legal opinion which explains why the bill cannot be certified.


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