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04 June 2024 | Story Dr Larisse Prinsen | Photo Supplied
Dr Larisse Prinsen
Dr Larisse Prinsen is Senior Lecturer in the Department of Public Law at the University of the Free State (UFS).

Opinion article by Dr Larisse Prinsen, Department of Public Law, Faculty of Law, University of the Free State


On 15 May 2024, the National Health Insurance (NHI) Bill was signed into law by President Ramaphosa during a public ceremony. This did not come as a surprise as Minister in the Presidency, Khumbudzo Ntshavheni, had already stated in January that enactment would take place before the 2024 elections. Universal access to health care 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 the closeness of the election to be held at the end of the month.

Now that the Bill has become an Act, however, its actual real-life implementation may be stalled for some time. As the President himself stated 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 unique legal challenges for the Act and its implementation.

Legislation that could combat the implementation of the NHI Act

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 the NHI proceed without clarification of the rand-and-cent aspects, legal challenges may be brought.

Further pieces of legislation that could possibly be used to combat the implementation of the NHI Act 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

Various constitutional challenges are also rumoured to be in the pipeline, with Solidarity, the Democratic Alliance, the Health Funders Association, the South African Medical Association, the Board of Healthcare Funders, the South African Health Professionals Collaboration, as well as Business Unity South Africa all having previously suggested that they may consider, or outright declaring that they will take legal action against the Act as soon as Ramaphosa’s ‘special pen’ touches paper.

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. Not only is the ‘what will be covered?’ but also the ‘who will be covered?’ unclear. 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 RightsLitigation 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 nonadherence 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, and 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.

Law and health care intersect

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 South Africa, 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.

More institutional experts can be found at: https://www.ufs.ac.za/media/leading-researchers

News Archive

Department of English changed to empower students
2017-07-05

Description:Department of English  Tags: Department of English

Lecturers from the Department of English at the University of the Free State have been working
hard to create a robust learning environment for students through continuous assessment.
Photo: Sonia Small


A new curriculum, exciting third-year seminars, and a transition to continuous assessment. These are some of the changes made by the Department of English at the University of the Free State (UFS) over the past few years. The department, which also boasts four National Research Foundation (NRF) researchers, did this to tailor the curriculum towards the needs of its students and to foster a better culture of engagement.

According to Prof Helene Strauss, Head of the Department, the advantages of these changes are clear. “Staff have noted a significant improvement in both the basic writing and critical deliberation skills of our students, and in the responsibility they are taking for their own learning.” The new curriculum empowers students to take a position in relation to the knowledge they encounter in the classroom, thereby strengthening their own critical voice.

Taking continuous responsibility

One of the most significant changes for students was the fact that they have to take responsibility all the time. Prof Strauss says continuous assessment changed “last-minute cramming to near-daily, student-centred activities of reading, writing, and critical discovery.”

Because students have to prepare for lectures and reflect on materials, they are in a better position to internalise difficult debates and critical concepts. “Rather than telling students what to think, we help them develop flexible, critical tools to make sense of a changing world.”

Third-year seminars are another way of including forms of instruction that concentrate on the links between education and democracy, but still improve students’ ability to speak and write English accurately. Every semester, students can choose seminars from a range of topics such as ‘Witchcraft’ (Prof Margaret Raftery) and ‘The Art of Dying’ (Dr Mariza Brooks).

Research and associates around the world

Dr Marthinus Conradie, Dr Rodwell Makombe, Prof Irikidzayi Manase, and Prof Strauss are all NRF-rated researchers in the department.

The department also has affiliated research associates from countries including Zimbabwe, the USA, and Canada. Dr Kudzayi Ngara currently holds a competitive NRF grant for a project on Southern African urbanity, and Dr Philip Aghoghovwia recently received the prestigious African Humanities Programme Fellowship.

Under the guidance of Dr Ngara, the department has been able to roll out a new Honours programme on the Qwaqwa Campus. The campus now also offers students the opportunity to pursue MA and PhD studies.

Other highlights:
• Hosted the international Institute of the Association for Cultural Studies in 2015.
• Books published: Dr Susan Brokensha (with Burgert Senekal). Surfers van die Tsunami: Navorsing en Inligtingstegnologie binne die Geesteswetenskappe (SUN MeDIA, 2014); Prof Iri Manase. White Narratives: The depiction of post-2000 land invasions in Zimbabwe (UNISA Press, 2016); as well as co-edited volumes with Cambridge Scholars Publishing (Dr Oliver Nyambi) and Routledge (Prof Helene Strauss).
• Publications include three special journal issues (of ISI journals Critical Arts: South-North Cultural and Media Studies; Safundi: The Journal of South African and American Studies; Interventions: International Journal of Postcolonial Studies).

 



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