Is the National Health Insurance (NHI) Bill Constitutional in South Africa: It’s constitutionality and unconstitutionality.

Abstract

The most imperative objective of the National Insurance (NHI) Bill is to provide universal access to quality health care for all South Africans as enshrined in terms of Section 27 of the Constitution of South Africa (1996). The right to health care is recognized and protected under the Constitution as a fundamental aspect of human dignity.

The Bill’s aims are noble and align with the global drive towards universal health coverage (UHC) – a key target under the Sustainable Development Goals. UHC requires health systems to provide all people with access to needed health services of sufficient quality, while also ensuring that the use of these services does not expose them to financial hardship.

3.Introduction

The topic is about achieving Universal Health Care (UHC) in South Africa which requires a fundamental transformation of the current two-tiered health system, in which the public sector serves majority of the population with limited resources while the private sector caters to a minority with more substantial funding. The National Health Insurance (NHI) Bill envisages addressing this inequity through the establishment of a single, publicly owned and administered National Health Insurance Fund (“Fund”), which will purchase health care services on behalf of the population from accredited and contracted public and private providers. However users will receive these services free of charge at the point of care when the constitutionality is achieved and when the unconstitutionality of the Bill is successfully challenged, for the Bill to be assented.

3.1 Arguments in support of the NHI Bill:

• Universal Healthcare Coverage:

The NHI bill aims to provide universal healthcare coverage to all South Africans, addressing the inequalities in the current healthcare system promoting the equality clause in section 9 of the Constitution.

• Addressing Inequities:

The bill seeks to reduce fragmentation and inequities in healthcare access, ensuring that everyone has access to quality healthcare services as entrenched by section 27 of the Constitution.

Status of Legal Challenges:

• Several legal challenges have been launched against the NHI Bill, with some arguing that certain sections are unconstitutional.
• The outcome of these challenges will significantly impact the future of the NHI in South Africa.

The Schindlers Attorneys, (2024). “Legal Opinion on the Constitutionality of the NHI Bill” states that National Health Insurance (NHI) Bill purports to address some of the issues by creating a single financing mechanism and strategic purchaser to more equitably distribute financial and service delivery resources across the health system. In assessing whether its provisions are a “reasonable” way to progressively realize the right of access to health care services, the factors and criteria developed by the Constitutional Court in its socio-economic rights jurisprudence will be highly relevant. These include the need for a comprehensive, coordinated and inclusive program, measures to cater for those most vulnerable or in desperate circumstances, short term relief for urgent needs alongside longer-term measures, transparent and participatory decision-making, and the effective and efficient use of available resources.

After expanding on each of these arguments, the opinion recommends solutions in the form of amendments to the Bill that would rectify the constitutional defects and enable a NHI system that is consistent with the Constitution, its values and allocation of powers, the rights of stakeholders, and South Africa’s international law commitments. It concludes that pursuing UHC in a manner that respects the Constitution, and the rule of law will result in a more stable, legitimate and effective reform process. The opinion begins by setting out the constitutional rights, principles of interpretation and international law relevant to analysing the NHI Bill. It then provides in-depth discussion of each of the five grounds of potential unconstitutionality, drawing on the constitutional provisions, court judgments and academic commentary. Thereafter, concrete proposals are made for reformulating problematic aspects of the Bill. Finally, the conclusion reiterates the importance of ensuring the NHI system is designed and implemented in a manner that complies with the Constitution.

 3.2 Relevant Constitutional Rights and Principles

Right of Access to Health Care Services the Constitution entrenches the socio-economic right of access to health care services. Section 27(1)(a) of the Constitution of the Republic of Africa (1996). provides that everyone has the right to have access to health care services, including reproductive health care. Section 27(2) obliges the state to take reasonable legislative and other measures, within its available resources, to achieve the progressive realization of this right.

The Constitutional Court has provided guidance on the interpretation of these provisions and the obligations they impose on the state. In Government of the Republic of South Africa and Others v Grootboom and Others 2001 (1) SA 46 (CC), the Court held that section 27(2) requires the state to devise and implement a comprehensive and coordinated program to progressively realize the right of access to health care. The program must be balanced and flexible, make appropriate provision for short, medium and long-term needs, and cannot exclude a significant segment of society. Measures taken must be reasonable both in their conception and implementation. Reasonableness includes considering the degree and extent of the denial of the right to health care of those most desperate and ensuring that concrete and targeted steps are taken to ameliorate their situation.

However, the Court cautioned that section 27 does not require the state to go beyond its available resources or to realize the right immediately. In Minister of Health v Treatment Action Campaign (No 2) 2002 (5) SA 721 (CC) (“TAC”), the Court held that courts are “ill-suited to adjudicate upon issues where court orders could have multiple social and economic consequences for the community.” It will restrain from dictating specific policy measures to the state. As long as the measures adopted are reasonable, a court will not find them to be in breach of section 27 even if more desirable measures could be devised. The state has a margin of discretion to decide on the best way to fulfil constitutional rights.

Nonetheless, a forceful argument can be made that the current legislative framework governing the health system fails to protect and promote the right of access to health care services in a reasonable manner.

Key shortcomings include:

• The absence of an earmarked, dedicated funding stream for public health services, with health budgets subject to trade-offs and competition with other priorities in the overall fiscal framework.
• The failure to regulate private financing of health care to ensure it promotes equitable and sustainable resourcing of the overall system, rather than operating in isolation.
• Inadequate measures to ensure sufficient human resources (doctors, nurses, specialists etc.) are available in the public sector and distributed between urban and rural areas.
• Weak provisions for holding private sector providers accountable for the quality and cost-effectiveness of their services.
• The lack of an integrated approach to health service delivery between the public and private sectors.

3.3 Main aims of the National Health Insurance Bill.

The NHI Bill purports to address some of the above-mentioned issues by creating a single financing mechanism and strategic purchaser to more equitably distribute financial and service delivery resources across the health system. In assessing whether its provisions are a “reasonable” way to progressively realize the right of access to health care services, the factors and criteria developed by the Constitutional Court in its socio-economic rights jurisprudence will be highly relevant. These include the need for a comprehensive, coordinated and inclusive program; measures to cater for those most vulnerable or in desperate circumstances; short term relief for urgent needs alongside longer-term measures; transparent and participatory decision-making; and the effective and efficient use of available resources.

The NHI Bill purports to address some of these the NHI Bill purports to address some of these issues by creating a single financing mechanism and strategic purchaser to more equitably distribute financial and service delivery resources across the health system. In assessing whether its provisions are a “reasonable” way to progressively realize the right of access to health care services, the factors and criteria developed by the Constitutional Court in its socio-economic rights jurisprudence will be highly relevant. These include the need for a comprehensive, coordinated and inclusive program; measures to cater for those most vulnerable or in desperate circumstances; short term relief for urgent needs alongside longer-term measures; transparent and participatory decision-making; and the effective and efficient use of available resources.

Creating a single financing mechanism and strategic purchaser to more equitably distribute financial and service delivery resources across the health system. In assessing whether its provisions are a “reasonable” way to progressively realize the right of access to health care services, the factors and criteria developed by the Constitutional Court in its socio-economic rights jurisprudence will be highly relevant. These include the need for a comprehensive, coordinated and inclusive program; measures to cater for those most vulnerable or in desperate circumstances; short term relief for urgent needs alongside longer-term measures; transparent and participatory decision-making; and the effective and efficient use of available resources.

4.The unconstitutionality of the National Health Insurance Bill.

The need for reforms to realize the right of access to health care services is clear, however the precise design and mechanics of the NHI system raise several complex issues of constitutional law. The Bill has major implications for the division of powers between different spheres of government, the governance of public entities and use of public funds, the rights of health care service providers and users, and the obligations of the state to ensure access to care. An NHI system that fails to comply with the Constitution and its rights and values is likely to be vulnerable to legal challenge.

4.1 Arguments on the constitutionality of the National health Bill includes:

The opinions analyse key provisions of the NHI Bill and argues that they may be unconstitutional on five main grounds.

4.1.1 Concentration of Power:

Critics argue that the bill centralizes too much power in the national sphere, particularly the Minister of Health, potentially undermining the constitutional roles of provincial governments in healthcare and weakening oversight and

accountability undermining the concurrent provincial functions and cooperative governance principles in the Constitution.

4.1.2 Restrictions on Private Medical Schemes:

The bill restricts private medical schemes from offering services covered by the NHI, which some argue infringes on the right to choose and freedom of association entrenched in section 18 of the constitution, the blanket prohibition on private medical schemes offering NHI service coverage unjustifiably restricts freedom of choice and association

4.1.3 Infringement on Healthcare Professionals:

Concerns exist that the bill unduly restricts the freedom of healthcare professionals, potentially affecting their ability to practice and impacting the quality of care.

4.1.4 Lack of Clarity and Vague Provisions:

Some argue that the bill is prohibitively vague, lacking clear guidelines and creating uncertainty, particularly regarding the implementation and funding of the NHI. The transparency and accountability provisions for the NHI Fund are inadequate, lacking robust Parliamentary oversight, public reporting and independent regulation.

4.1.5 Potential for Corruption and Mismanagement:

Concerns are raised about the potential for corruption and mismanagement within the NHI fund, especially given the lack of robust oversight and accountability mechanisms.

Moyo, Botha and Govindjee , ‘The Constitutionality of the National Health Insurance Bill ,The Treatment of Asylum Seekers’ state that at the same time, where it clear that state policy is inconsistent with its constitutional obligations in respect of the right to health care as it limit access to health care for asylum seekers and it is not in line with section 9 and 27 of the Constitution in South Africa, courts have the power to make orders directing the state to take certain steps. In TAC, the Court declared that the government’s failure to make available the anti-retroviral drug Nevirapine to all HIV positive mothers and their newborn babies in public health facilities was an unreasonable limitation of the right of access to health care. It ordered the state to remove the restrictions and roll out the drug to all clinics. The Court emphasized that the state had failed to provide any reasonable justification for restricting access to a “simple, cheap and potentially lifesaving medical intervention.”

The negative dimension of section 27 was highlighted in Soobramoney v Minister of Health (KwaZulu-Natal) 1998 (1) SA 765 (CC). The applicant was a diabetic man in the final stages of chronic renal failure. He sought to compel a state hospital to provide him with ongoing dialysis treatment, which he could not afford privately. The Court held that the right to emergency medical treatment did not entitle him to indefinite, state-funded dialysis. Given the hospital’s limited resources, it had adopted a reasonable policy to only provide dialysis to patients who were eligible for a kidney transplant. However, the Court affirmed that the state must manage its limited resources in order to address the health care needs of the whole population. It may not refuse emergency treatment arbitrarily or implement policies that leave patients without access to life-saving procedures available in the private sector but which they cannot afford.

The Constitutional Court has not yet considered a direct challenge to the two-tier health system or the vast disparities in financial and human resources between the public and private sectors. In Grootboom, TAC and other cases, the focus has been on specific policies or circumstances rather than the overall legislative and budgetary framework. However, some commentators argue there is scope to extend the principles in the socio-economic rights jurisprudence to assess the reasonableness of the “deep inequalities” and “rationing” in the health system as a whole.

Pieterse contends that an equitable health system requires “a more even distribution of wealth, income and access to resources.” He suggests that a policy which limits access to health care according to individual wealth, when it “could reasonably have been formulated to avoid such discriminatory results”, may be susceptible to constitutional challenge. In his view, where rationing decisions have an impact on individuals’ survival and quality of life, there must be “particularly compelling justifications” and “wide public participation.”

Similarly, Moyo criticizes the “reluctance of the courts to interrogate or critically engage with the state’s budgetary and policy choices”, particularly in the division of resources between the public and private sectors. He argues that the “glaring inequality in access to health care services between medical aid beneficiaries and those consigned to an overburdened public health system” is relevant to assessing the reasonableness of current health care policy. However, he acknowledges the difficulties courts face in adjudicating complex issues with significant budgetary implications.

Conclusion

In conclusion, the constitutionality of the NHI Bill is a complex and contested issue. While the bill’s goals of universal healthcare coverage are laudable, it concerns about its potential impact on existing healthcare systems and individual rights remain, leading to ongoing legal challenges and debates.

Bibliography

Case Law

• Government of the Republic of South Africa and Others v Grootboom and Others 2001 (1) SA 46 (CC)
• Minister of Health v Treatment Action Campaign (No 2) 2002 (5) SA 721 (CC)
• Soobramoney v Minister of Health (KwaZulu-Natal) 1998 (1) SA 765 (CC)

Acts

• The Constitution of the Republic of Africa 1996

Journal Articles

• The Schindlers Attorneys, ‘Legal Opinion on the Constitutionality of the NHI Bill’ (2024)

Online Journal Article

• Moyo PT; Botha J and Govindjee A, ‘The Constitutionality of the National Health Insurance Bill The Treatment of Asylum Seekers’ PER / PELJ 2022(25) > DOI    http://dx.doi.org/10.17159/1727-3781/2022/v25i0a12221 < accessed 23 July 2025