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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

Top PhD graduates hailed for excellent research in development and historical studies
2017-07-11

 Description: Top PhD graduates hailed for excellent research  Tags: Top PhD graduates hailed for excellent research  

Prof Melanie Walker and Prof Ian Phimister

The Centre for Research on Higher Education and Development and the International Studies Group celebrated its PhD graduates on 26 June 2017. The four graduates were joined by their PhD promoters Prof Ian Phimister and Prof Melanie Walker, the Dean of the Faculty of Economic and Management Sciences, and their families, who came from far and wide, as well as various faculty academics and staff. Their areas of study ranged between Development Studies and Africa Studies, exploring issues that make a significant impact on the Southern African region and the continent as a whole.

In the Faculty of Economic and Management Sciences, specialising in Development Studies, Dr Faith Mkwananzi, promoted by Prof Merridy Wilson-Strydom, explored the lives and educational aspirations of marginalised migrant youth, a case study in Johannesburg. She focused on the complex nature of the daily lives and experiences of marginalised migrant youth and the complexities that influence the formation and achievement of educational aspirations in contexts of vulnerability and disadvantage. The study provides compelling evidence for policy and practice that can make the lives of marginalised young migrants better.

A focus on teaching and learning in Zimbabwean universities with a focus on quality as a human development, was what Dr Patience Mukwambo, put her research efforts into. Her work makes an original contribution to national, continental, and international debates on conceptualising and operationalising the quality of teaching and learning in higher education. She successfully developed a significant alternative approach to understanding what quality in higher education teaching and learning entails, the factors that influence the realisation of quality as she theorises it, and the overall importance for human development and human well-being in universities and society.

Dr Bothwell Manyonga, who also specialised in Development Studies, examined the broader debates on the purposes and practices of teaching and learning in higher education with a case study at two South African universities, with an emphasis on principles of social justice and equity. In the thesis, he developed a model that proposes grounds for (re)thinking sociology teaching and learning to address how the capabilities approach and dominant human capital theory might complement each other in higher education and curriculum development. This takes into account both the instrumental aim of employment, which is of concern to students, as well as the intrinsic goods of critical discourse and personal development.

In the Faculty of the Humanities, with a specialisation in Africa Studies, Dr Abraham Mlombo’s doctoral research explored the relationship between Southern Rhodesia and South Africa 1923-1953, examining the ‘special relationship’ between the two countries from the former’s perspective, highlighting the complexity of the ties between them by examining (high) political relations, economic links and social and cultural ties. “It is through Abraham’s research that for the first time, black experiences of both sides of the colonial border are detailed,” said Prof Phimister.

In congratulating the graduates, Prof Melanie Walker expressed that a lot of hard work was put into training the PhD candidates and they had without a doubt produced work that was of the highest level, at international standards.

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