The BHF believes the NHI Act is unconstitutional because it didn't have meaningful public participation
The Board of Healthcare Funders (BHF) is heading for the Constitutional Court to ask that it reviews the parliamentary process of passing the NHI Bill.
This is a further application as part of its ongoing legal challenge to the NHI.
According to BHF, its latest application was filed with the Constitutional Court to challenge the constitutionality of the parliamentary process that led to the adoption of the NHI Act in 2023.
“Our application is grounded in the belief that Parliament failed to fulfil its constitutional obligation to ensure meaningful public participation, as required by Sections 59 and 72 of the Constitution,” said the BHF.
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Universal health coverage
The BHF emphasises that it remains committed to the goal of universal health coverage (UHC) in South Africa. However, it says it believes the NHI Act in its current form will not achieve this goal.
“Instead, it risks causing a serious regression in the quality and accessibility of health services, particularly, for vulnerable communities. The NHI Act’s vague provisions, lack of fiscal planning and weak institutional design threaten to undermine rather than strengthen equitable healthcare access.”
ALSO READ: Board of Healthcare Funders ready to challenge NHI
The BHF says in its founding affidavit that the NHI Bill was adopted in circumstances where material constitutional and legal concerns were raised by civil society, healthcare professionals and numerous stakeholders. Despite these submissions, which contains some which were comprehensive and evidence-based, parliament proceeded to pass the bill without addressing the submissions.
Basis for BHF’s application against NHI Bill
The BHF’s application is based on four core legal and constitutional grounds:
- Public participation was inadequate: Parliament merely “ticked boxes” during its provincial hearings and failed to genuinely engage with public input. These hearings were often procedurally superficial, lacked proper facilitation and documentation and ultimately did not inform parliamentary deliberations.
- The NHI Bill’s content was unclear and premature: The NHI Bill lacked essential detail on coverage, cost and implementation. There was no clarity on what services would be included, how the system would be funded, or how it would be phased in. In effect, parliament legislated without understanding how the system it was creating would function.
- Excessive powers delegated to the minister of health: The NHI Act confers broad powers on the minister, including the ability to determine the basket of services, accrediting providers and overseeing pricing and governance, with limited oversight. This unconstitutional delegation bypasses parliament and centralises authority in a manner that undermines democratic accountability.
- Concerns over rationality and viability: The last formal cost estimate for the NHI presented to parliament dates back to 2010. The bill was passed without updated financial modelling and relies on future regulations yet to be written. This raises serious doubts about its practical viability and whether it meets the legal standard of rational lawmaking.
ALSO READ: NHI regulations ‘prematurely’ published with legislation not proclaimed yet
Parliament enacted law without understanding how NHI would work
The BHF says in its affidavit: “Parliament enacted a law without any reasonable understanding – by itself or anyone else – of how it would function in practice or achieve the improved healthcare access it claims to provide…”
“Given the gravity of the legislation and the long-term impact it will have on the country’s health system, it is deeply troubling that members of parliament chose to force the NHI Bill through despite unresolved constitutional and financial issues.
“This raises the question of whether political expediency was prioritised over the public interest and the health and wellbeing of South Africans – a fundamental duty of elected representatives,” the board says.
“This latest Constitutional Court application is integral to the BHF’s broader legal strategy. It complements our other ongoing legal challenge in the North Gauteng High Court, which seeks to review and set aside the president’s decision to assent to the NHI Bill.
“Under Section 79(1) of the Constitution, the president is required to refer a Bill back to the National Assembly if there are concerns about its constitutionality. The president received multiple submissions, including from the BHF, that highlighted these concerns. We believe that his failure to act on them amounts to a breach of this constitutional duty.”
ALSO READ: Court rules president must explain how he decided to sign NHI Bill into law
President’s action around NHI Bill subject to judicial review
The North Gauteng High Court ruled in May this year that the president’s action is subject to judicial review and ordered him to provide the full record of his decision-making process.
The BHF emphasises that these court actions are not about resisting healthcare reform but about protecting the rights of all South Africans to have a transparent, lawful and effective health system.
“Legislation with far-reaching consequences cannot be rushed through parliament without due process, scrutiny, or proper costing.”
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