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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

Four modernised controlled environment cabinets inaugurated
2006-07-27

Photographed in a controlled environment cabinet were at the back from the left:  Mr Adriaan Hugo (head of the UFS Electronics and Mechanisation Division), Prof Herman van Schalkwyk (Dean: Faculty of Natural and Agricultural Sciences at the UFS) and Prof Koos Terblans (lecturer at the UFS Department of Physics).  In front is Mr Koos Uys (engineering consultant from Experto Designa who helped with the cooling systems of the cabinets).
Photo: Leonie Bolleurs

Different look for research in controlled circumstances at the UFS  

Research in controlled circumstances at the University of the Free State (UFS) turned a new page today with the inauguration of four modernised controlled environment cabinets of the Department of Soil, Crop and Climate Sciences.

“The controlled environment cabinets, which are situated next to the glass houses on the eastern side of the Agriculture Building on the Main Campus in Bloemfontein, were installed in the early 1980’s.  The cabinets, used for research purposes in controlled circumstances by the UFS for many years, became dysfunctional and needed to be repaired and put into use again,” said Prof Herman van Schalkwyk, Dean: Faculty of Natural and Agricultural Sciences at the UFS.

“The cabinets are used by the agronomics, horticulture and soil science divisions of the Department of Soil, Crop and Climate Sciences to control factors such as the temperature, the intensity and quality of light, synthesis and humidity.  This is done 24 hours a day, with hourly intervals,” said Prof Van Schalkwyk.

The cabinets are ideally suited to determine the joint and separate effects of these factors on the growth of plants.  The adaptability of plants to climate can also be investigated under controlled circumstances.  All of this leads to a better understanding of the growth and development process of plants, more specifically that of agricultural crops. 

“The effect of these environmental factors on the effectiveness of insect killers such as fungus killers, insecticide and weed killers can also be investigated and can help to explain the damage that is sometimes experienced, or even prevent the damage if the research is timeously,” said Prof Van Schalkwyk.

A new cabinet can cost between R2-3 million, depending on the degree of sophistication.  “Although controlled environment cabinets have been used for agricultural research for a long time, it has become costly to maintain them     and even more impossible to purchase new ones,” said Prof Van Schalkwyk.

According to Prof Van Schalkwyk the cabinets were re-built by die UFS Electronics and Mechanisation Division.  Some of the mechanisms were also replaced and computerised.   

“The re-building and mechanisation of the cabinets were funded by the faculty and because the work was done by our own staff, an amount of about R1 million was saved.  The maintenance costs will now be lower as the cabinets are specifically tailor made for our research needs,” said Prof Van Schalkwyk.

Where all monitoring was done manually in the past, the cabinets can now be controlled with a computer.  This programme was designed by Prof Koos Terblans from the UFS Department of Physics. 

According to Prof Van Schalkwyk the modernisation of the cabinets is part of the faculty’s larger strategy to get its instruments and apparatus up to world standards.  “With this project we have proved that we can find a solution for a problem ourselves and that there are ways to get old apparatus functional again,” said Prof Van Schalkwyk.

Media release
Issued by: Lacea Loader
Media Representative
Tel:   (051) 401-2584
Cell:  083 645 2454
E-mail:  loaderl.stg@mail.uovs.ac.za
26 July 2006

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