Participatory Democracy: What Will Be on the Line When the Country’s Highest Court Turns to NHI in May?
By Sasha Stevenson
From 5–7 May, the Constitutional Court will hear two of the multiple challenges to the NHI Act. Sasha Stevenson, Executive Director of SECTION27, considers what will be on the line in these first potentially landmark cases that deal with the process that led to the Act.
The public discussion on National Health Insurance has gone from abstract; to alternatively excited or worried about implementation; to dizzying references to a range of court cases filed over the course of 2024 and 2025. It can be difficult to keep up with what NHI may mean for our health system and when the promised system reform may happen.
We may now be approaching a decisive moment, with the Constitutional Court set to hear two of the NHI challenges.
From 5–7 May 2026, the Constitutional Court will be hearing challenges brought by the Board of Healthcare Funders and the Premier of the Western Cape. These two challenges deal with public participation in the making of what is now the NHI Act.
In February 2026, parties challenging the constitutionality of specific sections of the NHI Act agreed with government to put their cases on hold, pending a decision of the Constitutional Court in the May 2026 public participation challenges. The parties bringing constitutional challenges include the South African Private Practitioners Forum, the Hospital Association of South Africa, the South African Medical Association, and the Health Funders Association, among others. They agreed to hold off because a decision of the Constitutional Court on public participation could make the constitutional challenges unnecessary.
So for now, all eyes are on the Constitutional Court, whose judges will decide whether government must go back to the drawing board and follow a different procedure, or whether it may go ahead (and face a slew of constitutional challenges).
The Western Cape’s case
The Western Cape government is challenging the NHI Act because it argues that consultation with the Western Cape government, over legislation that restructures health services provided by provinces, was lacking. They argue that the National Council of Provinces (NCOP) failed to respond to a request for an extension for the Western Cape to submit the outcome of its provincial consultation on the NHI Bill and its voting mandate, and then went ahead without the Western Cape documents.
The NCOP also did not, the Western Cape government alleges, consider or debate any proposed amendments to the NHI Bill arising from the public participation in other provinces. When the Western Cape government submission and public participation report came in, the NCOP merely confirmed its earlier decision to approve the Bill.
In essence, the Western Cape’s challenge is about the NCOP’s role of ensuring that provinces and their residents have a say in the making of new laws, and whether that role was properly played. It argues that the NCOP’s failure to play its constitutional role should result in the NHI Act being declared unconstitutional and invalid.
The Board of Healthcare Funders case
While the Western Cape challenge does not deal with public participation in the NHI law-making writ large, the Board of Healthcare Funders (BHF) case fills this gap.
The BHF argues that both the National Assembly and the NCOP failed to comply with their constitutional obligations to facilitate meaningful and effective public involvement in the NHI law-making process. The BHF contends that the public was not provided with sufficient information to allow for meaningful engagement (such as details about the costs and the benefits package of the NHI Fund); and that law makers were not open to persuasion in the participation process.
The BHF asks that the NHI Act is declared invalid and set aside.
Why should we care about public participation?
The Constitutional Court has held that “[i]t is apparent from the preamble of the Constitution that one of the basic objectives of our constitutional enterprise is the establishment of a democratic and open government in which the people shall participate to some degree in the law-making process.”
There was a huge amount of public participation in the law-making process for the NHI Act, with roadshows, written submissions and oral presentations. Government respondents in the BHF case point to the fact that 338 891 written submissions were made at various stages, and many oral presentations were heard by Parliament. Few could argue that, if you wanted to, you did not have a chance to have your say on the NHI Bill.
But is being able to say something enough?
In a constitutional democracy where citizens participate in law-making between elections as a way of directly influencing the law, if there is no chance of having that influence, merely being able to speak is insufficient.
There is, of course, no obligation on government to adopt proposed changes as a result of public participation. Parliament cannot be required to agree with all submissions, and the validity of a process does not turn on whether amendments were made to take into account submissions. But when few or no amendments are made, it inevitably raises eyebrows.
In the case of the NHI Bill, while there were limited changes to the Bill when it went through the National Assembly, no changes at all were made following the NCOP public participation process. Given the hundreds of thousands of submissions, many of which were substantive, the small number of amendments is surprising. Particularly given that some submissions that were consistently made are now being conceded by the Department of Health, in public or in private. These include submissions related to the position of asylum-seekers, transitional provisions, and the role of medical aids.
SECTION27 and the Treatment Action Campaign made submissions at Draft Bill stage, before the National Assembly, and before the NCOP. As health activists and health rights lawyers, our submissions were carefully considered and proposed amendments to bring the Bill in line with the Constitution and the needs of healthcare users. Our experience was of MPs engaging to a very limited extent with the substance of the submissions, focusing rather on whether we were ‘for’ or ‘against’ the NHI, or their party’s position on it. It was an experience that brought into question how seriously real public participation was being taken.
The Constitutional Court will now be able to consider whether the public participation processes on the NHI Act were in line with the constitutional call for participatory democracy; or whether they were an unconstitutional tick box exercise. Its decision will determine if the NHI Act will be further scrutinised for substantive constitutionality through litigation, or if it should be returned to the legislature for further consideration and participation.
Either way, what NHI may mean for our health system is a question that may yet take some time to answer. On the other hand, what participatory democracy requires of parliament (arguably an even more consequential question) may soon be answered by the Constitutional Court.
*Stevenson is a human rights lawyer and executive director of SECTION27. SECTION27 is representing the Treatment Action Campaign in an application to be admitted as amicus curiae in a court case relating to the NHI.
Note: Spotlight is published by SECTION27, but is editorially independent – an independence that the editors guard jealously. Spotlight aims to deepen public understanding of important health issues by publishing a variety of views on its opinion pages. The views expressed in this article are not necessarily shared by the Spotlight editors.
Republished from Spotlight under a Creative Commons licence.
Read the original article.
