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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

Science is diversifying the uses of traditional medicines
2017-07-17

Description: Dr Motlalepula Matsabisa  Tags: traditional medicines, Indigenous Knowledge Systems, Dr Motlalepula Matsabisa, Malaria, priority disease  

Dr Motlalepula Matsabisa.
Photo: Anja Aucamp

According to the World Health Organisation, a large majority of the African population are making use of traditional medicines for health, socio-cultural, and economic purposes. In Africa, up to 80% of the population uses traditional medicines for primary healthcare.

The Indigenous Knowledge Systems (IKS) was identified as a lead programme under the directorship of Dr Motlalepula Matsabisa. Research undertaken by the IKS Lead Programme focuses on some key priority diseases of the country and region – including malaria, HIV, cancer, and diabetes.
 
Not just a plant or tree

Malaria is a priority disease and is prevalent in rural and poor areas, resulting in many traditional health practitioners claiming to treat and cure the disease. There may well be substance to these claims, since as much as 30% of the most effective current prescription medicines are derived from plants.  For instance, chloroquine, artemisinin for malaria, Metformin for diabetes, Vincristine and Vinblastine for cancer, are plant-derived drugs.  

Dr Matsabisa’s current research is investigating a South African medicinal plant that has been shown to have in vitro antiplasmodial activity, with subsequent isolation and characterisation of novel non-symmetrical sesquiterpene lactone compounds offering antimalarial activity. These novel compounds are now patented in South Africa and worldwide. This research is part of the UFS and South Africa’s strive to contribute to the regional and continental malaria problem. The UFS are thus far the only university that has been granted a permit by the Medicines Control Council to undertake research on cannabis and its potential health benefits.

“All of these projects are aimed
at adding value through the scientific
research of medicinal plants, which
can be used for treating illnesses,
diseases, and ailments.”

Recognition well deservedThrough Dr Matsabisa’s research input and contributions to the development of the pharmacology of traditional medicines, he recently became the first recipient of the International Prof Tuhinadrin Sen Award from the International Society of Ethnopharmacology (ISE) and the Society of Ethnopharmacology in India. ISE recognises outstanding contributions by researchers, scientists, and technologists in the area of medicinal plant research and ethnopharmacology internationally.

More recently, Dr Matsabisa undertook research projects funded by the National Research Foundation, as well as the Department of Science and Technology, on cancer, gangrene, and diabetes. He is also involved in a community project to develop indigenous teas with the community. He says, “All of these projects are aimed at adding value through the scientific research of medicinal plants, which can be used for treating illnesses, diseases, and ailments”.

Dr Matsabisa has worked with many local and international scientists on a number of research endeavours. He is grateful to his colleagues from the Department of Pharmacology in the Faculty of Health Sciences, who are dedicated to science research and the research of traditional medicines. The IKS unit also received immense support from the Directorate of Research Development.

 

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