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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

UFS Faculty of Health Sciences opens student residence in Trompsburg
2017-07-06

Description: Trompsburg read more Tags: Trompsburg read more

Official unveiling of the memorial plaque by
Prof Gert van Zyl, Dean of the Faculty of Health Sciences,
and Prof Francis Petersen, Rector and Vice-Chancellor
of the University of the Free State.
Photo: Charl Devenish

The University of the Free State’s (UFS) Faculty of Health Sciences has, as part of its commitment to student and community development, established a student residence in the town of Trompsburg in the Kopanong Local Municipality. The faculty officially opened the Rural Community Initiative and student residence in June 2017. The newly developed student residence has 10 apartments which could each accommodate six individuals.  A housemaster resides on the premises and acts as manager of the facility.  All areas of the residence are Wi-Fi covered and it has a 24-hour security service.

Importance of the residence
The goal of the Kopanang le fodise – Unite to heal programme is to develop a community-centred collaborative framework for sustainable, holistic healthcare and social development which is incorporated in the curricula of the faculty. During 2016, a total of 324 fourth-year students have each spent at least a week in primary healthcare facilities on a Community Based Education and Inter-Professional Education platform in Trompsburg and Springfontein in the Kopanong Municipality.

“This programme was commissioned to fulfil a specific goal. We are connecting our students with the community. The support of everyone coming together caused this to move from being just a spark, to a blaze. This is all our project,” said Dr René Botha, coordinator for Community-based Education and Rural Health in the faculty.

Community outreach a priority
“This is an innovative project that has been able to bring health and health-related issues to the community. One of the UFS’ three focus areas is community engagement. This project is primarily focused on serving the community, but also on the academic element, which is student development,” said Prof Francis Petersen, Rector and Vice-Chancellor of the UFS.

Prof Petersen commended the project on being the first of its kind in the South African Health Sciences sector. The platform will also be used for research purposes that will enrich the sector. Prof Petersen challenged the Kopanong community to give their input by answering two questions: What is the UFS good at? What is the UFS good for?

Reaching for the stars
“I am a dreamer and I have to reach, and if I reach, I reach for the stars. Today we are very lucky, because we have grabbed that star,” said Prof Gert van Zyl, Dean of the UFS Faculty of Health Sciences.

Prof Van Zyl reminded the audience that they possess the power to change challenges into stars by approaching them with careful thought, planning, and motivation. Prof Van Zyl concluded by stating that the rural community initiative is for the community, and that the faculty is just the facilitators.

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