The Constitutional Court’s hearing over National Health Insurance (NHI) concluded on 7 May. The Board of Healthcare Funders (BHF) and the Western Cape Provincial Government made a combined application challenging the NHI Act on public participation grounds.
The Court is now deliberating; on such complex constitutional matters, it can be weeks to months before a judgment is made. The implementation of NHI remains suspended, following February’s High Court order – President Cyril Ramaphosa and the Minister of Health have formally undertaken not to proclaim or implement any part of the act until the Constitutional Court’s ruling. Other legal challenges are now paused.
What were the arguments?
The hearings focused on one key question: whether Parliament’s process met the constitutional threshold for public participation (primarily under Sections 59 and 72 of the Constitution). Section 59 mandates proactive, reasonable, and meaningful public engagement for the country’s participatory democracy. Formalities alone do not satisfy it – rather, the test is contextual reasonableness aimed at genuine influence. Constitutional Court challenges for national legislation are the main means by which Section 59 is enforced.
The BHF argued that hundreds of thousands of written submissions were effectively ignored; critical information was not provided; and whether, without such information, the test for rational law-making was met.
The Western Cape (led by Premier Alan Winde) focused primarily on deficiencies in the NCOP and provincial stages of the process, arguing that these violated constitutional public-participation requirements and undermined provincial roles. For example, the NCOP process was compressed into only eight weeks, key inputs were ignored, and provincial roles were undermined.
Parliament contended that the process was far more than a “tick-box” exercise, presenting the NHI to the public as a radical, transformative process and that details would only emerge as the project proceeded. [Nevertheless, even a simple calculation would show an NHI budget of R200bn, requiring crippling taxation.] They also argued that accommodations were made, such as extending written comment deadlines. They also argued that changes were made to the Bill, and that engagement does not mean that the legislature agrees, but rather is informed.
Judges raised questions about the integrity and practicality of the public health system in the context of NHI, but the core legal issue remained procedural compliance as opposed to the policy merits.
Is there precedent?
This would not be the first time the Constitutional Court has set aside Acts. In 2006, in a case brought by Doctors for Life, the Choice on Termination of Pregnancy Amendment Act and Traditional Health Practitioners Act were invalidated as Parliament had failed to comply with its section 72(1)(a) constitutional obligation to facilitate public involvement before passing.
Further cases reinforced that inadequate information, rushed timelines, and a lack of consultation over major changes would result in a breach. Parliament, however, argues that Doctors for Life shows that the requirement for participatory democracy has been met.
All parties now await the Court’s decision, which could either uphold the Act, declare it partially or wholly invalid, or remit aspects back to Parliament for correction.
