The high court in Pretoria has confirmed it has jurisdiction to hear the legal challenges brought by medical schemes and doctors against the National Health Insurance (NHI) Act, and ordered President Cyril Ramaphosa to furnish the record of his decision to assent to the contentious legislation.
The ruling marks a small victory for the Board of Healthcare Funders (BHF) and the SA Private Practitioners’ Forum (SAPPF) after the president’s legal team tried to convince the high court they had taken their fight to the wrong place and should have filed their respective applications in the Constitutional Court.
The NHI Act, signed into law by the president last May, sets in motion the ANC’s plan for universal health coverage. It proposes sweeping reforms that include a prohibition on medical schemes covering benefits provided by NHI, and a sharply diminished role for provincial health departments.
The act is not yet in force as none of its sections have been proclaimed by the president.
The BHF, representing medical schemes and administrators, and the SAPPF, representing specialists, launched separate applications against the NHI Act last year. The two parties asked the court to review and set aside the president’s decision to sign the act into law, and declare the act to have no legal force.
The BHF’s core argument was that the president had failed to fulfil his constitutional duty because he had not referred the NHI Bill back to parliament despite receiving many submissions challenging the constitutionality of the legislation.
The court’s decision to compel the president to produce the record of decision is a meaningful step forward in our pursuit of accountability and constitutionally sound governance
— Board of Healthcare Funders
The constitution says the president must either assent to and sign a bill passed by parliament, or if he has reservations about the constitutionality of the bill he must refer it back to the National Assembly. Similar arguments were made by the SAPPF.
In a ruling handed down on Tuesday, judge Mpostoli Twala said deputy judge president Aubrey Ledwaba had directed the jurisdictional question for the two cases be considered together.
Twala found the North Gauteng High Court had jurisdiction to hear the matter, that the president’s decision to assent to and sign the NHI Act was reviewable and that the president must furnish the record of his decision to the court within 10 calendar days. He also made a cost order against the president and his co-respondent, the health minister.
The BHF welcomed the ruling, describing it as an important milestone in its ongoing legal challenge to the NHI Act.
"It reaffirms the constitutional principle that all public power is subject to the rule of law and that no office-bearer, including the president, is above judicial scrutiny," it said.
The BHF said it believed the full record of the president’s decision-making process would demonstrate he ignored compelling legal and policy objections against NHI submitted by many stakeholders from civil society, business and the health-care sector.
"The court’s decision to compel the president to produce the record of decision is a meaningful step forward in our pursuit of accountability and constitutionally sound governance," it said.
SAPPF CEO Simon Strachan said it was striking that Twala had drawn attention to the extensive range of parties that had over the years questioned the constitutionality of the NHI Bill, including National Treasury, parliament’s legal advisers, the Western Cape provincial government and industry associations that had not only made submissions to parliament but also petitioned the president directly.
Ramaphosa’s spokesperson, Vincent Mangwenya, said the president would need to study the judgment before making any comment.
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