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NHI Act – Let the litigation begin

04 June 2024 | Story Dr Larisse Prinsen | Photo Supplied

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 Rights. Litigation 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

MBA Programme - Question And Answer Sheet - 27 May 2004

2004-05-27

1. WHAT MUST THE UNIVERSITY OF THE FREE STATE (UFS) DO TO GET FULL ACCREDITATION FOR THE MBA PROGRAMMES?

According to the Council on Higher Education’s (CHE) evaluation, the three MBA programmes of the UFS clearly and significantly contribute to students’ knowledge and skills, are relevant for the workplace, are appropriately resourced and have an appropriate internal and external programme environment. These programmes are the MBA General, the MBA in Health Care Management and the MBA in Entrepreneurship.

What the Council on Higher Education did find, was a few technical and administrative issues that need to be addressed.

This is why the three MBA programmes of the UFS received conditional accreditation – which in itself is a major achievement for the UFS’s School of Management, which was only four years old at the time of the evaluation.

The following breakdown gives one a sense of the mostly administrative nature of the conditions that have to be met before full accreditation is granted by the CHE:

a. A formal forum of stakeholders: The UFS is required to establish a more structured, inclusive process of review of its MBA programmes. This is an administrative formality already in process.

b. A work allocation model: According to the CHE this is required to regulate the workload of the teaching staff, particularly as student numbers grow, rather than via standard management processes as currently done.

c. Contractual agreements with part-time staff: The UFS is required to enter into formal agreements with part-time and contractual staff as all agreements are currently done on an informal and claim-basis. This is an administrative formality already in process.

d. A formal curriculum committee: According to the CHE, the School of Management had realised the need for a structure – other than the current Faculty Board - where all MBA lecturers can deliberate on the MBA programmes, and serve as a channel for faculty input, consultation and decision-making.

e. A system of external moderators: This need was already identified by the UFS and the system is to be implemented as early as July 2004.

f. A compulsory research component: The UFS is required to introduce a research component which will include the development of research skills for the business environment. The UFS management identified this need and has approved such a component - it is to take effect from January 2005. This is an insufficient element lacking in virtually all MBA programmes in South Africa.

g. Support programmes for learners having problems with numeracy: The UFS identified this as a need for academic support among some learners and has already developed such a programme which will be implemented from January 2005.

The majority of these conditions have been satisfied already and few remaining steps will take effect soon. It is for this reason that the UFS is confident that its three MBA programmes will soon receive full accreditation.

2. WHAT ACCREDITATION DOES THE UFS HAVE FOR ITS MBA PROGRAMME?

The UFS’s School of Management received conditional accreditation for its three MBA programmes.

Two levels of accreditation are awarded to tertiary institutions for their MBA programmes, namely full accreditation and conditional accreditation. When a programme does not comply with the minimum requirements regarding a small number of criteria, conditional accreditation is given. This can be rectified during the short or medium term.

3. IS THERE ANYTHING WRONG WITH THE ACADEMIC CORE OF THE UFS’s MBA PROGRAMMES?

No. The UFS is proud of its three MBA programmes’ reputation in the market and the positive feedback it receives from graduandi and their employers.

The MBA programmes of the UFS meet most of the minimum requirements of the evaluation process.

In particular, the key element of ‘teaching and learning’, which relates to the curriculum and content of the MBA programmes, is beyond question. In other words, the core of what is being taught in our MBA programmes is sound.

4. IS THE UFS’s MBA A WORTHWHILE QUALIFICATION?

Yes. Earlier this year, the School of Management – young as it is - was rated by employers as the best smaller business school in South Africa. This was based on a survey conducted by the Professional Management Review and reported in the Sunday Times Business Times, of 25 January 2004.

The UFS is committed to maintaining these high standards of quality, not only through compliance with the requirements of the CHE, but also through implementing its own quality assurance measures.

Another way in which we benchmark the quality of our MBA programmes is through the partnerships we have formed with institutions such as the DePaul University in Chicago and Kansas State University, both in the US, as well as the Robert Schuman University in France.

For this reason the UFS appreciates and supports the work of the CHE and welcomes its specific findings regarding the three MBA programmes.

It is understandable that the MBA review has caused some nervousness – not least among current MBA students throughout the country.

However, one principle that the UFS management is committed to is this: preparing all our students for a world of challenge and change. Without any doubt the MBA programme of the UFS is a solid preparation.

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