Ramaphosa can appeal against NHI ruling

Top court gives president go-ahead to bring his case

President Cyril Ramaphosa has been granted direct leave to appeal to the Constitutional Court a high court judgment regarding his decision to assent to the National Health Insurance Act (NHI).

In a legal challenge brought by the Board of Healthcare Funders (BHF) and the SA Private Practitioners Forum (SAPPF), the high court in Pretoria in May found that the president’s decision to assent to and sign the NHI Act was reviewable.

However, the Constitutional Court on Monday dismissed the judgment and granted the president direct access to appeal.

The NHI Act, which was signed into law by Ramaphosa last May, sets in motion the ANC’s plan for universal health coverage. It proposes sweeping reforms that include a prohibition on medical schemes covering benefits provided for by NHI and a sharply diminished role for provincial health departments. The act is not yet in force, as none of its sections have been proclaimed by the president.

The first piece of enabling legislation, the NHI Act, proposes sweeping reforms and has been challenged by trade union Solidarity, the BHF (representing medical schemes), the SAPPF (representing specialists), the Hospital Association of SA (representing private hospitals) and SA’s biggest doctor organisation, the SA Medical Association.

In court papers, Ramaphosa’s legal adviser, Geoffrey Mphaphuli, argued that the high court’s decision to order the president to furnish the record of his decision to the court within 10 calendar days of the judgment positionally breached separation of powers by allowing lower courts to review presidential decisions.

The high court’s decision could lead to further delays in the legislative process by

enabling pre-emptive challenges to laws, Mphaphuli argued. “The assent to and signature of a bill are obligations that lie exclusively with the president in terms of section 79(1) and 84(2) of the constitution,” he said.

“Any challenge that the president has failed by some alleged standard (which has not yet been determined by the court) to comply with these unique constitutional obligations necessarily implicates the court in pronouncing upon the appropriate exercise of the presidential obligation and the applicable standards of judicial scrutiny that would apply. The constitution requires that this is to be assessed by this court alone by virtue of its clear implications for the separation of powers.

“By seeking to disclose the ‘record’, the lower courts will necessarily be dragged into the terrain of ‘checking the homework’ of the president in the exercise of his powers as head of state, which the constitution conspicuously and deliberately leaves undefined and unqualified for sound constitutional reasons.”