LARISSE PRINSEN | NHI Act needs a money bill setting out financial aspects of primary law

On May 15, the National Health Insurance (NHI) Bill was signed into law by President Cyril Ramaphosa during a public ceremony. This did not come as a surprise as minister in the presidency, Khumbudzo Ntshavheni, had already said in January that enactment would take place before the 2024 elections.

Universal access to healthcare is an ANC promise, after all, which has led to some calling this public display – as well as the remarks made before the signing – electioneering, considering how close it was to the election.

The bill has become law, however, its actual real implementation may be stalled for some time. As the president himself said during the signing ceremony, the act is to be implemented in stages.

This could potentially take many years if the example of 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 also bring the potential for a slew of legal challenges for the act and its implementation.

There is also the issue of the missing money bill. An act such as the NHI Act, which has massive financial and economic ramifications, should be accompanied by a money bill drafted by the National Treasury, setting out the financial aspects of the primary act. 

So far, no money bill has been drafted, which pauses the implementation of the NHI Act. Should the implementation of NHI proceed without clarification of the rand-and-cent aspects, legal challenges may be brought. 

Further pieces of legislation could possibly be used to combat the implementation of the NHI Act. These include the Consumer Protection Act, which aims to establish and protect 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 Act, which may have implications for the large gathering of personal information that will be necessary for the NHI system to be workable. Another notable piece of legislation to consider is the Promotion of Administrative Justice Act.

Various constitutional challenges are also rumoured to be in the pipeline, with Solidarity, the DA, the Health Funders Association, the SA Medical Association, the Board of Healthcare Funders, the SA Health Professionals Collaboration, as well as Business Unity SA all having previously suggested that they may consider, or outright declaring, that they will take legal action against the act.

The NHI Act may be constitutionally challenged on various grounds. To start with, there are concerns regarding the rule of law’s requirement 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.

This not only constitutes legislative vagueness, but this uncertainty also makes it almost impossible to apply our system of checks and balances whereby a determination may be made whether the state is truly adhering to its mandate in section 27 of the constitution to take progressive steps to realise the rights enshrined in the Bill of Rights.

Litigation may also be instituted based on arguments that section 33 of the NHI Act, which may lead to the demise of medical aid schemes, is unconstitutional and that it limits the constitutional provision of access to health-care services. In terms of the limitation clause of the constitution, a limitation is only justified when, among other requirements, there are no less restrictive measures by which the purpose of the limitation may be achieved.

Challenges could also be brought against the NHI Act based on non-adherence to requirements of procedural fairness and the principles of participatory democracy, as the consultation processes preceding the enactment have largely been labelled as mere lip service to consultation requirements without having seriously considered the various concerns, objections, submissions, comments and even blatantly dismissing them. 

Other possible causes of action are related to the infringement of the right to autonomy, privacy, association, freedom of expression, as well as freedom of trade, occupation and profession.

As the ink dries on the NHI Act, the stage is set for many legal dramas to unfold, indicating that the act’s destiny will be decided by a gavel rather than a pen.

While the ceremonial signing marked a historical milestone in the attempt to promote equality in SA, the road to implementation is fraught with challenges. With no accompanying money bill in sight and a landscape ripe for constitutional scrutiny, the act’s journey forward is likely to be tumultuous.

As stakeholders gear up to challenge its provisions on various fronts – from procedural fairness to constitutional rights – the NHI Act is poised to become a battleground where the nuances of law and health care intersect.

As the curtains rise on this legal saga, the true test of the act’s viability and constitutionality awaits.

• Dr Prinsen works at the department of public law, faculty of law in the University of the Free State