NHI: choice of court under attack

President Cyril Ramaphosa’s legal team has attacked the Board of Healthcare Funders’ (BHF) challenge to the National Health Insurance (NHI) Act on technical grounds, arguing that the medical scheme industry association took its fight to the wrong court.

The act sets in motion the ANC’s controversial plan for universal health coverage.

It was signed into law by the president on May 15, and now faces three legal challenges, brought separately by trade union Solidarity, the BHF and the SA Private Practitioners Forum (SAPPF).

The BHF represents 40 medical schemes operating in SA that between them cover 4.5-million beneficiaries, or half the market. It counts the key medical schemes for public servants among its members — Polmed, which is restricted to the police and has 490,000 beneficiaries, and the Government Employees Medical Scheme, which has about 2-million beneficiaries. The BHF’s application, launched in the high court in Pretoria in late May, challenged the president’s decision to sign the National Health Insurance Bill into law. It asked the court to review and set aside his decision, and declare the act to have no legal force.

The BHF argued that in line with section 79 (1) of the constitution, the president should have referred the bill back to the National Assembly for reconsideration because many submissions raised concern about the constitutionality of the bill.

Section 79 (1) says the president must either assent to and sign a bill passed by parliament, or if he has reservations about the constitutionality of the bill refer it back to the National Assembly.

The BHF’s application also asked for the president’s full record of decision-making on the bill. “We believe this will show that President Ramaphosa received several submissions advising him that the bill was unconstitutional,” the BHF said on Sunday. Its legal challenge to

the act was “a necessary last resort” after its input had been ignored by parliament and the president, it said.

Now, in a case within a case, the president has pushed back, arguing that the BHF should have taken the matter to the Constitutional Court instead of the high court in Pretoria.

Ramaphosa’s spokesperson, Vincent Magwenya, declined to comment, saying that the presidency would do so only after the conclusion of the court process.

In papers, the president’s legal team argued that the BHF’s application fell within the exclusive jurisdiction of the Constitutional Court, as prescribed by section 167 (4)(e) of the constitution. This section says that only the Constitutional Court may decide that parliament or the president has failed to fulfil a constitutional obligation. It also argued that the president did not have an obligation to refer legislation back to parliament if he had reservations about its constitutionality, as doing so was entirely at his discretion.

In response, the BHF said in its papers that irrespective of whether the president’s powers to refer the bill to parliament were obligatory or discretionary, the lawfulness of his decision was reviewable by the high court.

The jurisdictional challenge is expected to be heard in the high court in Pretoria on March 10, according to the BHF.

The BHF said it had already approached the Constitutional Court on a contingency basis.

“If we lose in the high court we will go to the Constitutional Court. If we win and the presidency appeals, we will also approach the Constitutional Court,” it said.

Though the National Health Insurance Act has been signed into law, it is not yet in effect, as none of its sections has been proclaimed. Neither the BHF’s legal challenge nor those launched by Solidarity and the SAPPF stop the president assenting to specific sections of the legislation.

The BHF said it fully supported the principle of universal health coverage, but NHI would weaken rather than strengthen SA’s health system.

WE BELIEVE PRESIDENT RAMAPHOSA RECEIVED SEVERAL SUBMISSIONS … THAT THE BILL WAS UNCONSTITUTIONAL