AfriForum and Solidarity to challenge NHI Act

Legal challenges to the National Health Insurance (NHI) Act have already started against President Cyril Ramaphosa, after his signing of the bill into law, including a class action by AfriForum.

In a letter of demand dated Wednesday and sent minutes after the president signed the law, trade union Solidarity’s attorney Carel Nicolaas Venter said “the governing party has disregarded substantive and procedural issues raised by industry stakeholders, citizens, and organisations ... in favour of pushing through impractical and unconstitutional legislation”.

Solidarity said the government failed to conduct a proper cost analysis. “Government has not adequately examined the concerns raised,” Venter said.

These concerns were, among other things, “governance structures, operational efficiency ... (and) the risk concentration in a single-payer system within an unstable economy plagued by endemic corruption”.

The government’s dismissing these “is shortsighted, unwise and ultimately unconstitutional,” Venter said.

Venter said the NHI regime would infringe on healthcare rights “compelling many who now use private medical care via medical schemes to rely on an inadequate public healthcare system”.

Solidarity said it would institute its “challenge (to) the constitutionality of the NHI Act” in court, unless the government confirmed it would repeal the act.

The trade union has given the government until next Thursday.

Along with Solidarity, civil rights group AfriForum also delivered a letter of demand to the president on Wednesday, declaring the NHI regime “unconstitutional, unaffordable, unimplementable policy”.

AfriForum said it would be instituting a class action against “the government of SA, the president, parliament and the minister of health”. This was different to a direct legal challenge to the legislation, AfriForum said, because a class action allowed AfriForum “to address the multitude of factual disputes which are likely to arise from the litigation processes”.

It would also allow evidence to be led in open court “dispelling many of the lies and halftruths around the NHI”. Due to the length of time class actions took to get to court and be resolved, this “keeps the implementation of the NHI ... at bay”.

Independent industry associations for medical schemes and administrators, the Health Funders Association and the Board of Healthcare Funders, also indicated they would launch legal action.

UCT law professor Pierre de Vos, however, said challenges to the constitutionality “do not look particularly persuasive”. He said that “some people seem to think the court should torpedo the NIH ... not because of any specific infringement of rights, but merely because they do not like the policy and/or fear it would disadvantage them”. To De Vos, the act was the result of a proper democratic process.

Sasha Stevenson, the executive director of public interest law centre, Section 27, however, is sceptical of the act. “The NHI (Act) as it stands is problematic both legally and in its likely impact on the health system,” she said.

“The main problems we see relate to the governance arrangements for the NHI Fund and how they leave the fund wide open to corruption, mismanagement and political interference; the exclusion of asylum seekers and undocumented people (both South African and foreign) from access to services ... the lack of transparency around procurement ... the exclusion of civil society and health service users from the influential committees of the NHI Fund; the failure to test a litany of new structures before legislating that they be established likely resulting in duplication of roles and costs; and the very weak transitional provisions.”

Section 27 (named after the section in the constitution dealing with access to healthcare) had “been raising (these concerns) for years to no avail”.

UCT law lecturer Ben Cronin, formerly a state law adviser, described the new legislation as “akin to a car without an engine as the (NHI) Fund’s source of revenue remains subject to parliamentary discretion in the form of future appropriations”.

Cronin pointed to several possible issues with the new legislation. For example, the new act imposed “an obligation on future parliaments to enact other ... legislation”, and “the fund will not have its own dedicated source of guaranteed funding”.

He praised the act for acknowledging gaps that must be addressed in future laws and regulations. “These range from the tertiary sector’s training of future doctors, the provision of healthcare in distinct sectors like prisons, and perhaps most importantly, what is to become of provincial healthcare facilities like hospitals and clinics.”

He noted that litigation, such as that from Solidarity and AfriForum, would “push back the planned incremental implementation of the (NHI) fund” which is one of AfriForum’s stated goals.

Ramaphosa has not yet responded to the litigation challenges.

THE HEALTH FUNDERS ASSOCIATION AND THE BOARD OF HEALTHCARE FUNDERS INDICATED THEY WOULD TAKE LEGAL ACTION