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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

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Graduates convene with global leaders at the UFS 2015 Winter Graduation ceremonies

2015-07-07

Dr Hendrik Auret, dr Gerhard Bosman en dr Madelein Stoffberg.
Foto: Leonie Bolleurs

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The University of the Free State’s 2015 Winter Graduations, which took place from 1-2 July 2015 on the Bloemfontein Campus offered several highlights. Three global leaders received honorary doctorates. A further 2 000 degrees and diplomas were conferred to graduates in the seven faculties of the university.

For the first time in the history of the UFS, three PhDs in Architecture were awarded simultaneously. Hendrik Auret, Gerhard Bosman, and Madelein Stoffberg’s outstanding achievements are a milestone in the university’s pursuit of academic excellence.

Furthermore, three PhDs were conferred on graduates from the Department of Consumer Science in the Faculty of Natural and Agricultural Sciences. Ismari van der Merwe, Natasha Cronje, and Gloria Seiphetlheng set a precedent when they walked across the Callie Human stage to collect their doctorates at the same graduation ceremony.

This year, the university produced 66 Doctors of Philosophy in various fields of study. Six of these PhDs were awarded in the Department of Physics. Three graduates in the Department of Soil- and Crop- and Climate Sciences received PhDs at the Winter Graduation. They are Tesha Mardamootoo, Elmarie Kotzé, and David Chemei.

Dr John Samuel.
Photo: Johan Roux

Keynote speakers provide enlightenment to graduates

On Wednesday 1 July 2015, Dr John Samuel, SA’s leading education expert, addressed 707 diploma graduates from the Centre for Financial Planning Law and the School of Open Learning. For the graduates’ future reference, Samuel offered invaluable knowledge he had accumulated over the years as Chief Executive of the Nelson Mandela Foundation. “One of the lessons I have learnt was not only the importance of time, but it was in fact what being on time demonstrated,” he said. “Being on time was demonstrating respect, respect for the people you are meeting, and for the occasion.”

On the second day of graduation, Nataniël, South African singer, songwriter, and entertainer spoke to Master’s and doctoral graduates in the Faculties of Economic and Management Sciences, Humanities, Education, Health Sciences, Law, Theology, and Natural and Agricultural Sciences. His keynote spoke to the graduates’ sense of resolve in saying, “nothing is ever accidental. It is always with a purpose, it is your turn to make the world a better place.” He added that “it is important to strive for excellence and to be proud of what you are doing.”

Honorary doctorate recipients in a nutshell

Dr Samuel is one of the three exceptional global leaders to receive honorary doctorates from the university on 1 July 2015. His accolade was presented by the Faculty of Education. He has contributed to the Public Participation Education Network (PPEN) campaign as a founding member. He established the Centre for Education Policy Development, the Joint Working Group (for The National Party Government and the ANC), the National Education Conference, and the National Education and Training Forum. In addition, he made leadership contributions to the First Education and Training White Paper, the first Green Paper on Higher Education, and is the CEO of the Oprah Winfrey Leadership Academy for Girls. The WK Kellogg Foundation in the USA operates under his directorship.

Professor Heidi Hudson, Director of the Centre for Africa Studies at the UFS and Dr Lakhdar Brahimi.
Photo: Mike Rose from Mike Rose Photography

Dr Lakhdar Brahimi received an honorary doctorate from the Centre for Africa Studies. Algerian-born Brahimi was first involved with the United Nations (UN) in 1992, and has since been deployed all over the world on peacekeeping missions. Amongst many other countries, he has worked as a mediator for South Africa, Haiti, Afghanistan, Iraq, Syria, Democratic Republic of Congo, Cameroon, Burundi, Angola, Liberia, Nigeria, Sudan, and Côte d’Ivoire on behalf of the UN. He also played a direct role in South Africa’s democratic transition as a special representative in 1993/4.

Dr Mercy Amba Oduyoye received an honorary doctorate from the Faculty of Theology. Dr Oduyoye is widely regarded as one of the most influential women theologians in Africa. She was the first black woman to receive a degree in Theology in 1965 from Cambridge University in the United Kingdom. She continues to shift the paradigm of gender in theology internationally as the director of the Institute of African Women in Religion and Culture at the Trinity Theology Seminary in Ghana.

Dr Mercy Oduyoye.
Photo: Johan Roux

In closing the academic celebrations

Vice Rector: Academic, Dr Lis Lange, commended the class of 2014 for making their contribution to the educational system. Prof Jonathan Jansen, Vice Chancellor and Rector, also congratulated the graduates in closing.

“This is a day many have worked very hard towards, it is an enormous achievement as well as a development in the quality of research, and the courage to research,” he said in a vote of confidence.

Dr Khotso Mokhele, Chancellor of the UFS, applauded the university in light of the increased number of female graduates who completed their degrees with distinctions. The transcendence of demographics, both in terms of gender and race, on a postgraduate level, increases the hope of achieving gender equality in both the academic arena and South Africa.

More graduation news

A number of distinctions were also awarded during the two-day ceremony. For a list of these distinctions, follow this link.

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