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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

New SRC constitution for UFS main campus agreed upon by all organisations
2005-07-20

University of the Free State Fact Sheet

1. The Council of the University of the Free State (UFS) unanimously approved an amendment to the SRC constitution for the main campus to allow for the introduction of proportional representation (PR) alongside a first-past-the-post electoral system.

2. This decision was taken by the UFS Council on 10 June 2005 at the same meeting where it also approved the establishment of a Central SRC for the three campuses of the UFS.

3. The new main campus SRC constitution is the result of consensus reached during a lengthy negotiation process involving diverse student formations such as Sasco, the ANC Youth League, the Young Communist League, the ACDP, HEREXVII, KovsieAlliance, as well as the democratically elected SRC members of the main campus. Independent persons such as Mr Jack Klaas and Mr Kobus van Loggerenberg facilitated the negotiation process.

4. The consensus reached during this process, and the subsequent decision by Council, represent a major breakthrough for student governance and transformation of the UFS main campus and constitutes a legitimate basis for the democratic participation of all students at the UFS main campus in the governance of the university.

5. The introduction of the proportional representation system follows earlier calls by some student formations, notably Sasco and the ANC Youth League, for such a system to be introduced at the UFS main campus in Bloemfontein.

6. In terms of the amendments to the main campus SRC constitution, nine of the 18 SRC members are to elected by means of proportional representation and nine on the basis of an direct, first-past-the-post election.

7. The following portfolios of the main campus SRC will be contested by individual candidates on the basis of “first past the post”:
• president
• secretary
• academic affairs
• legal and constitutional affairs
• student development
• arts and culture
• men’s internal liaison
• ladies internal liaison
• media, marketing and liaison

8. The following nine portfolios will be contested by affiliated organizations on a proportional representation basis.
• two vice-presidents
• treasurer
• dialogue and associations
• transformation
• campus affairs and recreation
• sport
• international affairs
• community service

9. These two decisions regarding student governance represent a breakthrough in that, for the first time in many years, all SRC constitutional changes were processed and approved by the June meeting of the Council, well in time for the scheduled August SRC election; in addition, all relevant student organizations have been part of the process and all have accepted the outcome of the process.

20 July 2005
 

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