Why AfriForum wants courts to force government to abandon NHI Act

PRESIDENT Cyril Ramaphosa along with Health Minister Dr. Aaron Motsoaledi and Finance Minister Enoch Godongwana have about 20 days to file their notices of intention to defend the National Health Insurance (NHI) against AfriForum’s court challenge. 

The lobby group has asked the Gauteng High Court, Pretoria to declare the NHI Act unconstitutional, arguing that the Act undermines the constitutional powers of provinces to budget, finance, plan and run healthcare services. 

Also cited as respondents are National Assembly Speaker Thoko Didiza and National Council of Provinces chairperson Refilwe Mtshweni-Tsipane.

In its court papers, AfriForum also asked for Parliament to be given 24 months to amend what it termed as NHI defects or repeal the Act in its entirety and be referred to the Constitutional Court for confirmation of the order of invalidity.

The centralisation of the provincial equitable share in terms of the act constitutes an intrusion by the national government into the legitimate tax revenues of provinces allocated to the performance of their constitutionally mandated functions in respect of healthcare and ambulance services, states the organisation.

“… These healthcare services are constitutionally and legitimately the domain of provincial governments inclusive of financing (raising and allocating funds), planning, organising and service delivery required for the execution of those services by provincial hospitals, clinics and transport services,” the organisation explained.

AfriForum added that the creation or designation of certain public hospitals as central hospitals in terms of the NHI Act constitutes further legislative encroachment by the national government upon healthcare services rendered by provincial governments.

“In the premise, and to the extent that the act adversely affects the constitutional functional areas of healthcare services and ambulance services rendered by provinces, the act is unconstitutional,” read the court papers.

AfriForum further indicated that the NHI Act by restricting the role of medical aid schemes to complementary cover and limiting avenues for patients to exercise choice in accessing care the statute risks diminishing existing entitlements for a significant proportion of the population.

“No proper systematic diagnostic assessment has been made to make a clear connection between the weaknesses of the existing health system and the policy underlying the act’s legislative framework to reform the public and private health sectors,” the organisation told the high court.

When signing the Bill into law in May 2024, Ramaphosa maintained that  NHI will make health care in the country as a whole more affordable.

“It proposes a comprehensive strategy that combines various financial resources, including both additional funding and reallocating funds already in the health system. This approach ensures contributions from a broader spectrum of society, emphasising the shared responsibility and mutual benefits envisioned by the NHI. The financial hurdles facing the NHI can be navigated with careful planning, strategic resource allocation and a steadfast commitment to achieving equity,” he said at the time.

Cape Times