Opinion article by Prof Narnia Bohler-Muller, Research Theme Leader: Flourishing Life, Directorate Research Development, University of the Free State

As I write, the Constitutional Court has reserved judgment on whether the process behind the National Health Insurance Act 20 of 2023 honoured the people it claims to serve. More than a dozen further challenges await, and President Cyril Ramaphosa has undertaken not to bring the Act into force until the judges have spoken. We are engaged in one of the democratic era’s most consequential arguments about the architecture of health. About single funds, medical schemes, and the fiscal weight of a R200bn ambition. And we are having this argument while, in the pre-dawn queues outside clinics and state hospitals that have run short of everything but patience, the right we are debating expires.

The Act’s intention is bold and, in principle, just: a single public fund meant to cover everyone, so that care no longer turns on one’s financial status. It imagines health for all, but because it is so ambitious, it is fiercely contested. Universal coverage, in some form, is nonetheless a moral necessity, and is practised in many countries. A health system cleaved in two, one tier for those who can pay, one for those who must merely endure, is itself a standing instance of flourishing denied. There is, however, a more unsettling matter at stake. We have become very good at arguing about the mechanism of health and strangely reluctant to speak of its meaning: about what health secures, and what is extinguished when it is withheld.

Access to health care services

Section 27 of our constitution promises access to the conditions within which a life may be healed, repaired and sustained. Everyone has the right of access to health care services; the state must take reasonable measures, within available resources, to realise it progressively; and no one may be refused emergency treatment. Read alongside the right to dignity, this is not a provision about buildings and beds but about becoming. Access to health care is the enabling of a life. When health is denied, human potential is stifled. Hunger empties the vessel; homelessness strips away its shelter; ill health, untended, ends the possibility that hunger and homelessness only threaten. These are not three misfortunes but one architecture of denial.

For three decades our courts have repeatedly surfaced this truth. In Soobramoney (1997) the Court confronted a dying man who asked only for the dialysis keeping him alive. The court answered honestly, and painfully, that a province with too few machines and too many demands could not be compelled to save him. He died soon after the judgment. It was the Court’s first grave admission that dignity and a budget’s limits do not always agree, and that someone, somewhere, must decide whose life the budget will carry.

Five years later, in the Treatment Action Campaign case, the Court faced a state that withheld nevirapine, the medicine that can stop HIV passing from mother to child, not for want of the drug but for lack of will. The judges refused to let bureaucratic caution pass for prudence, and ordered the state to act. The move from Soobramoney to TAC is one from resignation to obligation: from we cannot save everyone to you may not refuse to save anyone. It is the difference between scarcity and neglect. And neglect, the Court saw, is a choice.

In 2015 Gauteng’s health authorities, citing the budget, terminated the contract housing more than 1 000 psychiatric patients in specialised care, and scattered them to unlicensed, ill-equipped non-governmental organisations. These were places with no medicines, too few trained staff, and too little food. One hundred and forty-four people died of hunger, cold, and neglect. The Gauteng High Court in Pretoria (Life Esidimeni Inquest [2024]) found that two senior officials had negligently caused nine of those deaths; in 2026 the prosecuting authority confirmed, at last, that it would bring charges. It has been called the gravest human-rights violation of the democratic era, and rightly so: here was no scarcity of machines, but cost placed above care as a matter of policy, and the most defenceless among us moved out of sight to die. If hunger and homelessness are flourishing denied, Life Esidimeni is flourishing extinguished: the state unmaking the very lives it was constituted to protect.

Our democracy remains unfinished

The philosophy I have spent my academic life with has a hard word for this. Ubuntu (a person is a person through other persons) is not a sentiment but an ontology. I become myself only within a web of others who hold me in a circle of relations. A health system that lets the poor and fragile fall through its cracks is not merely inefficient; it is a community unmaking its own members, dissolving the very relations through which we grow into ourselves.

And so I return to the Court, but with the order of our questions reversed. The debate over NHI asks, urgently and rightly, how we shall pay for one another’s health. Yet it is the wrong question to ask first. A single fund laid atop a hollowed public system, without accountability, without the will that TAC demanded and the conscience Esidimeni’s dead now require, would only industrialise the neglect it promises to cure. The prior question is moral before it is fiscal. Do we mean to be the kind of people who let one another die within sight of help? Our constitution imagines a nation still in the making, a people still becoming. Health is the ground on which becoming stands. No one can learn, work, or take part in a community’s life from a hospital queue that moves slowly. Until every South African can stand on that ground, the promise of 1996 remains a promise only. And our democracy remains unfinished.