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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

#Women'sMonth: Long hours in wind and cold weather help to reconstruct Marion Island’s glacial history
2017-08-10

 Description: Liezel Rudolph  Tags: Liezel Rudolph, Process Geomorphology, Marion Island, periglacial geomorphology, Department of Geography  

Liezel Rudolph, lecturer for second-year students in Process
Geomorphology at the University of the Free State (UFS).
Photo: RA Dwight

Liezel Rudolph, a lecturer for second-year students in Process Geomorphology, aims to reconstruct the glacial history of Marion Island through cosmogenic nuclide dating techniques. She is interested in periglacial geomorphology, a study of how the earth’s surface could be formed by ice actions (freezing and thawing of ice).

Liezel is a lecturer in the Department of Geography at the university and is researching landscape development specifically in cold environments such as Antarctica, the Sub-Antarctic islands, and high mountain areas. “My involvement with periglacial geomorphology is largely due to academic giants who have carved a pathway for South Africans,” says Liezel.

Liezel visited Marion Island for the first time during her honours year in 2011, when she investigated the impact of seals on soil conditions and vegetation. Three years later, she visited Antarctica to study rock glaciers.

The challenge of the job
A workday in Antarctica is challenging. “Our time in the field is very limited, so you have to work every possible hour when the weather is not life-threatening: from collecting soil samples, to measuring soil temperature and downloading data, we measure polygons and test the hardness of rocks. The only way to get the amount of work done, is to work long hours in wind and rain with a positive and competent team! We take turns with chores: the person carrying the notebook is usually the coldest, while the rest of us are stretching acrobatically over rocks to get every nook and cranny measured and documented.”

A typical workday
Liezel describes a typical workday: “Your day starts with a stiff breakfast (bacon and eggs and a bowl of oats) and great coffee! After that comes the twenty-minute dressing session: first a tight-fitting under-layer, a middle layer – sweater and T-shirt, and then the outer windbreaker (or a quilt jacket on an extra cold day). Then you start applying sunscreen to every bit of open face area. Beanie on, sunglasses, two pairs of socks, two pairs of gloves. The few kilograms of equipment, one vacuum flask containing an energy drink, one vacuum flask containing drinking water (it would freeze in a regular bottle), and a chocolate bar and piece of biltong for lunch. After this, we drive (on snowmobiles) or fly (in helicopter) to our study area for about eight hours of digging, measuring, downloading, testing and chopping. Back at the base and after a long and tiresome undressing session, we move to the lab with all our data to make sure that it is downloaded safely and captured onto a database. Afterwards, depending on the day of the week, we enjoy a good meal. If you are lucky, such a typical day will coincide with your shower day. We can only shower every second day due to the energy-intensive water production (we have to melt snow) and the sewage system (all the water has to be purified before it could be returned to the environment). Then you grab your eye shield (since the sun is not sinking during summer) and take a nap before the sun continues to shine into the next day.”

Theoretical knowledge broadened 
“Going into the field (whether island or mountains) provides me with an opportunity to test geomorphic theories. Without experience in the field, my knowledge will only be limited to book knowledge. With practical experience, I hope to broaden my knowledge so that I could train my students from experience rather than from a textbook,” says Liezel.

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