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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

A new dawn for student governance

2011-09-02

Our SRC presidents: Richard Chemaly (Bloemfontein Campus) and Bongani Ncgaca (Qwaqwa Campus)
Photo: Hannes Pieterse

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The successful and peaceful completion of the University of the Free State’s (UFS) Student Representative (SRC) elections 2011 herals a new dawn for student governance with the announcement of the results today (1 September 2011).

The SRC elections at the Qwaqwa Campus were completed on 25 August 2011, while the elections at our Bloemfontein Campus took place on 29 and 30 August 2011.

“A new dawn heralds a new day when Richard Chemaly, the son of Lebanese immigrants becomes President of an SRC, as elected by students from all racial backgrounds and from across the student body at large. A new day has arrived when candidates could have won voter support across racial lines; a new day is here when all SRC members are now recognised leaders on the basis of academic accountability,” the Dean of Student Affairs, Mr Rudi Buys, says.

A new dawn has arrived; firstly, insofar as student elections for the choice of student leaders at the UFS now proceed according to a non-racial and a non-party political basis.

Not only did the SRC elections at both the Bloemfontein and Qwaqwa Campuses achieve its required quorum, with 31% (4 729 votes) and 50% (2 112 votes) voter turnout, respectively, but the SRC elected by students at the Bloemfontein Campus is 55% black and 45% white, and 60% female and 40% male. The numbers of votes gained by successful candidates also indicate that voters from all racial backgrounds have voted for their candidates of choice.

Secondly, a new dawn has arrived insofar as student governance occupied by only some student groups claiming to speak on behalf of all students has made way for direct voting for candidates by the broad student body and the threefold increase of student governance structures on campus.

Not only did all students at our Bloemfontein and Qwaqwa Campuses (a total of 15 173 and 4 257, respectively) have the opportunity to participate in voting directly, but nine additional Student Councils were established at our Bloemfontein Campus that each holds an ex officio seat on the SRC and allows for student governance in all the major student sectors of the student body, such as for postgraduate students, international students and all categories of student associations.

The various councils now established include the Student Academic Affairs Council, the Student Associations Council, the Postgraduate Student Council, the International Student Council, the Student Media Council, the Residences Student Council, the Commuter Student Council and the Rag Community Service Fundraising and Service Councils. In addition, all faculties also introduced student representative structures at departmental and faculty level in 2011 to ensure student participation in faculty management and governance.

The SRC members at the Bloemfontein Campus are:

Elective portfolios:
President: Mr Richard Chemaly
Vice-President: Mr Lefata David Maklein
Secretary: Ms Matshepo Ramokgadi
Treasurer: Mr Werner Pretorius
Arts & Culture: Ms Alta Grobelaar
Accessibility & Student Support: Mr William Clayton
First-generation Students: Ms Petre du Plessis
Media, Marketing & Liaison: Ms Biejanka Calitz
Sport: Mr Bonolo Thebe
Student Development & Environmental Affairs: Ms Busisiwe Madikizela
Transformation: Ms Qaqamba Mhlauli

Ex officio portfolios:
Dialogue & Ex officio: Associations Student Council: Mr Anesu Ruswa
Academic Affairs & Ex officio: Academic Affairs Student Council: Mr Jean Vermaas
Residence Affairs & Ex officio: Campus Residences Student Council: Ms Mpho Mokaleng
City student Affairs & Ex officio: Commuter Student Council: Ms Annemieke Plekker
Postgraduate Affairs & Ex officio: Postgraduate Student Council: Ms Glancina Mokone
International Affairs & Ex officio: International Student Council: Mr Pitso Ramokoatsi
Student Media Affairs & Ex officio: Student Media Council: Ms Nicole Heyns
RAG Community Service & Ex officio: RAG Fundraising Council: Ms Iselma Parker
RAG Community Service & Ex officio: RAG Community Service Council: Ms Motheo Pooe

In the Qwaqwa elections, SASCO achieved 36,84% of the vote, with SADESMO, PASMA and NASMO each achieving 29,73% and 18,56% and 12,74%, respectively .

Mr Bongani Ncgaca was elected as the President of the SRC at our Qwaqwa Campus, while the names of the SRC members at the campus will be announced on 7 September 2011.

The Central SRC will be established on 8 September 2011 by a joint sitting of the two SRCs.

The successful completion of the SRC elections at the Bloemfontein Campus follows a yearlong review process of student governance by a Broad Student Transformation Forum (BSTF) that consists of 59 delegations from student organisations and residences. The BSTF adopted independent candidacy for elective portfolios and additional student councils to provide ex officio seats on the SRC as the template for student governance, following the consideration of a series of benchmarking reports on student governance nationally and internationally.

The UFS Council adopted the new SRC Constitution, as drafted and submitted by the BSTF, on 3 June 2011.

Media Release
1 September 2011
Issued by: Lacea Loader
Director: Strategic Communication
Tel: 051 401 2584
Cell: 083 645 2454
E-mail: news@ufs.ac.za

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