The Legal Challenges of Implementing the National Insurance (NHI) in South Africa

Introduction

Imagine having to pick between crippling medical debts and overcrowded public hospitals lacking beds. This affects 60 million citizens daily, 84% depend on overburdened public care, while just 16% enjoy premium private services.[1] The health care system in South Africa is currently unequal, because the public sector is poor, but having to take care of a large population, whereas the private sector is a richer scheme through medical aid schemes, but it serves a small group of people.[2] This article argues the NHI’s social justice goals conflict with constitutional limits, needing legal reforms to succeed.

According to the National Health Insurance Act[3]Signed  into law by the president of South Africa Mr Cyril Ramaphosa, in May 2024, the National Health Insurance is defined as the  special national Health Insurance Fund that buys and pays for all healthcare services as the only buyer, to give everyone fair, cheap, and good health services[4], as promised by section 27 of the Constitution[5]  which states that everyone has the right to access health care services including reproductive health care, sufficient food and water, and social security including appropriate social assistance if unable to support oneself and dependants, with the state required to take reasonable legislative and other measures within its available resources to realise these rights progressively, and no one may be refused emergency medical treatment.

While the policy aims align with constitutional values like dignity, equality, and healthcare access, carrying it out has led to major court battles. South African judges often point out clashes between big rights promises and real-life rollout issues.[6] For example, in Minister of Health v Treatment Action Act, the Constitutional Court ruled that government policy on HIV treatment was unreasonable for excluding vulnerable groups, affirming judicial oversight while deferring policy design to the executive. This case shows us how implementation gaps undermine constitutional healthcare rights. “Civil society organisations, including AfriForum, have mounted legal challenges against the NHI Act, primarily contending that it violates constitutional rights to property and choice of health provider.”[7] This article explores the legal challenges surrounding the NHI’s implementation. It checks if NHI breaks the section 27of constitution, property rights, administrative rules, or money plans. It asks if NHI fits South Africa’s laws and world duties, plus examples from other countries.

Constitutional validity under section 27

The biggest legal question is whether the NHI Act follows South Africa’s 1996 Constitution. Section 27(1)(a)[8] of South Africa’s Constitution guarantees everyone the right to access healthcare services, but the government must provide them step by step using reasonable laws within what it can afford. Analysts contend that the National Health Insurance’s centralized financing approach could undermine individual autonomy in healthcare choices and raise constitutional concerns, particularly in relation to Section 18[9] which state that every has the right to freedom of association and Section 25[10] which safeguards property rights while enabling state action for land reform and public interest. And prohibits arbitrary deprivation of property and outlines conditions for expropriation with compensation.”[11]

AfriForum argues that forcing everyone to join the National Health Insurance (NHI) fund could mean taking away private medical aid schemes without paying them fairly for what is lost.[12] For example in the case of First National Bank of SA Ltd v Commissioner, South African Revenue Service and Another[13], the Constitutional court held that any interference with property rights must be tested against Section 25 [14]of the Constitution. Also, the government argues that the NHI is a fair way to make sure everyone’s socio-economic rights are protected. It says that limiting private freedom is allowed under Section 36[15] of the Constitution, which permits rights to be restricted if this is reasonable and justifiable for the public good.[16]  This principle is illustrated in the case of S v Makwanyane and Another[17], Whereby the constitutional court emphasised that rights are not absolute and may be limited under section 36 [18]if the limitation is proportional and justified. This reasoning supports the government’s position that restricting private medical autonomy through the NHI can be legitimate if it serves broader socio-economic rights. Also, another example is the case of Government of the Republic of South Africa v Grootboom[19], whereby Irene Grootboom and Grootboom and others lived in dire conditions without proper housing. They argued that the state had failed to meet its constitutional duty to provide access to adequate housing. The Constitutional Court held that while the government cannot instantly provide housing for everyone, it must take reasonable measures to progressively realize the right to housing under Section 26[20] of the Constitution. This showed that courts balance limited resources with constitutional rights.

Property rights and Health care Choice

 “Approximately 16% of the South African population is covered by private medical schemes, with membership concentrated among wealthier households.”[21] When the NHI is fully in place, private medical schemes will only be allowed to cover services that the NHI does not pay for. This limitation raises concerns about whether it infringes on property rights protected by Section 25[22] of the Constitution, which guards against unfair loss of property.[23] Critics, including medical aid providers and civil society groups, argue that removing comprehensive private medical schemes amounts to taking away their business assets and members’ contractual rights without fair compensation.[24] They contend this could breach Section 25(2)(b) [25]of the Constitution, which requires that expropriation be accompanied by “just and equitable” compensation. The billions of rand collected each year in medical aid premiums could lose their value once the NHI is fully implemented, similarly to the case of Du Toit v Minister of Transport (2006),[26] whereby the government required landowners to give up parts of their property for road construction without proper compensation. The Constitutional Court examined whether this amounted to an indirect deprivation of property, showing that even when the state does not physically seize property, regulations that reduce its value or use can still raise constitutional concerns under Section 25.

Supporters argue that limiting private medical schemes is a lawful regulation, not the government taking property[27]. these limits to rules in banking or insurance, where businesses are restricted to protect the public[28]. Courts have upheld such restrictions in cases like Cool Ideas v Hubbard[29]. Whereby the Constitutional Court refused to enforce a building contract because the company was not properly registered under the law. The ruling showed that regulations can legitimately restrict private business activities when it serves the public interest.

Administrative Rules

“The National Health Insurance framework envisages a centralised fund administered by a governing board, tasked with strategic purchasing of services and reimbursement of providers.” [30]The success of this plan depends on whether the government can properly handle contracts, check that rules are being followed, and make sure everything is done fairly.[31] Some critics say that South Africa’s long history of poor management and corruption in public health institutions makes people doubt whether the NHI can be run properly.[32] Section 1(c) [33]of the Constitution establishes the principle of legality, which means that government power must always be used in a lawful, rational, and accountable way. If the NHI Fund does not act lawfully, rationally, or fairly, its decisions can be challenged in court through judicial review under the Promotion of Administrative Justice Act (PAJA) 3 of 2000.[34]

Money Plans

“Currently, funding for healthcare services provided by Government is drawn from taxes from the public. Evidently, with a significant increase in funding needs once the NHI is implemented, additional streams of revenue will be required.”[35] Opponents say that the NHI’s funding plan puts too much pressure on taxpayers and could go against fairness and equality in how taxes are supposed to work.[36] If the NHI Fund fails to allocate resources effectively, it could be challenged for  irrationality.[37]

Comparative Insights

Around the world, health systems like the UK’s National Health Service (NHS) and Canada’s Medicare give useful examples to compare with South Africa’s NHI.[38] Both the UK’s NHS and Canada’s Medicare faced legal and political pushback when they started, but over time they became accepted because of strong leadership and stable funding.[39] South Africa’s NHI is different because it wants to combine the public and private health systems into one fund, which makes the change more complicated.[40]

Conclusion

The National Health Insurance Act is a good plan to change South Africa’s healthcare system so that everyone can have fair and equal access to health services.[41] Putting the NHI into practice will not be easy because it faces many legal problems. Court cases may question whether it violates property rights and freedom of association, showing the clash between personal freedoms and the wider public good. And the NHI faces extra problems because of money and management issues. These raise doubts about whether the government can keep its promises without breaking constitutional rules. Therefore, the NHI’s success depends not only on legal validity but also on effective governance, transparent administration, and sustainable financing. Comparative experience suggests that universal healthcare is achievable, but only through careful design and broad stakeholder engagement. And lastly, for South Africa, the challenge lies in reconciling constitutional commitments with practical realities, ensuring that the pursuit of equity does not compromise legality.

Bibliography

Legislation

Constitution of the Republic of South Africa, 1996.

National Health Insurance Act, 2024.

Promotion of Administrative Justice Act 3 of 2000.

Case Laws

Cool Ideas 1186 CC v. Hubbard and Another, 2014 (4) SA 474 (CC) (S. Afr.).

Du Toit v. Minister of Transport, 2006 (1) SA 297 (CC) (S. Afr.).

 First National Bank of SA Ltd v. Commissioner, South African Revenue Service and Another, 2002 (4) SA 768 (CC) (S. Afr.).

 Government of the Republic of South Africa v. Grootboom, 2001 (1) SA 46 (CC) (S. Afr.).

 Minister of Health v. Treatment Action Campaign, 2002 (5) SA 721 (CC) (S. Afr.).

 S v. Makwanyane and Another, 1995 (3) SA 391 (CC) (S. Afr.).

Books

Iain Currie & Johan De Waal, The Bill of Rights Handbook (6th ed. Juta 2013).

A.J. van der Walt & G.J. Pienaar, Introduction to the Law of Property (5th ed. Juta 2012).

A.J. van der Walt, Constitutional Property Law (3d ed. Juta 2011).

Cora Hoexter, Administrative Law in South Africa (2d ed. Juta 2012).

Charles Ngwena & Christopher Cook, Transforming Health Systems (Juta 2015).

1. Marcus & M. Dawood, National Health Insurance Unpacked (2020).

Jornal Articles

O.B. Ataguba et al., Health Trends, Inequalities and Opportunities in South Africa’s Provinces, 76(5) S. Afr. Med. J. 471 (2022).

1. Labuschagne Slabbert & S. Mahomed, Justice in the Provision of Health Care Services: A Stifled Right in the Private Sector, 15(3) Health L.J. (2022).
2. Mkhwanazi, The Constitutional Implications of South Africa’s National Health Insurance Policy, 140(2) S. Afr. L.J. 233 (2023).
3. McIntyre & J.E. Ataguba, Health Economics, Policy and Law, 7(1) Cambridge J. 23 (2012).

S.R. Benatar, Health Care Reform and the Crisis of Corruption in South Africa, 106(5) S. Afr. Med. J. 449 (2016).

1. Dube & M.C. Mamadi, How Will the Suggested Funding Methods of the South African National Health Insurance Potentially Affect Individual Taxpayers?, Tax L. Rev. 142 (2024).
2. Solanki, V. Brijlal & R. Morar, The National Health Insurance Act, 115(5) S. Afr. L. Rev. 17 (2025).
3. Moir, Comparing Performance of Universal Health Care Countries, Health Policy Rev. 6 (2025).

C.M. Flood & G.P. Marchildon, Political Changes and Healthcare in Canada, Can. J. Health Policy 2 (2025).

1. Blecher, Health Financing and National Health Insurance in South Africa, S. Afr. Health Rev. 40 (2018).

Reports & Other Sources

Staff Writer, New Legal Challenge Launched Against Ramaphosa and the NHI, Legal Brief 1 (2026).

Glenda Gray & Yogan Pillay et al., South African Health Review 45 (2023).

Cliffe Dekker Hofmeyr, Funding Options and Challenges for the NHI (2024).

1. McIntyre & J.E. Ataguba, Access to Quality Health Care in South Africa, Health Econ. Rev. 28 (2012).

[1]O.B. Ataguba et al., Health Trends, Inequalities and Opportunities in South Africa’s Provinces, 76(5) S. Afr. Med. J. 471 (2022).

[2] Staff Writer, New Legal Challenge Launched Against Ramaphosa and the NHI, Legal Brief 1 (2026).

[3] National Health Insurance Act 20 of 2024 (RSA).

[4]T. Marcus & M. Dawood, National Health Insurance Unpacked (2020).

[5] Const. of the Republic of S. Afr., 1996, § 27.

[6] M. Labuschagne Slabbert & S. Mahomed, Justice in the Provision of Health Care Services—A Stifled Right in the Private Sector, 15(3) Health L.J. (2022).

[7] Glenda Gray & Yogan Pillay et al., South African Health Review 45 (2023).

[8] Const. of the Republic of S. Afr., 1996, § 27.

[9] Const. of the Republic of S. Afr., 1996, § 18.

[10] Const. of the Republic of S. Afr., 1996, § 25.

[11] T. Mkhwanazi, The Constitutional Implications of South Africa’s National Health Insurance Policy, 140(2) S. Afr. L.J. 233 (2023).

[12] A.J. van der Walt & G.J. Pienaar, Introduction to the Law of Property (5th ed. Juta 2012).

[13] First Nat’l Bank of SA Ltd v Comm’r, S. African Revenue Serv. & Another 2002 (4) SA 768 (CC).

[14] Const. of the Republic of S. Afr., 1996, § 25.

[15] Const. of the Republic of S. Afr., 1996, § 36.

[16]  Iain Currie & Johan De Waal, The Bill of Rights Handbook 165(6th ed. Juta 2013).

[17] S v Makwanyane 1995 (3) SA 391 (CC).

[18] Const. of the Republic of S. Afr., 1996, § 36.

[19] Gov’t of the Republic of S. Afr. v Grootboom 2001 (1) SA 46 (CC).

[20] Const. of the Republic of S. Afr., 1996, § 26.

[21] D. McIntyre & J.E. Ataguba, Health Economics, Policy and Law, 7(1) Cambridge J. 23 (2012).

[22] Const. of the Republic of S. Afr., 1996, § 25.

[23] D. McIntyre & J.E. Ataguba, Health Economics, Policy and Law, 7(1) Cambridge J. 23 (2012).

[24] A.J. van der Walt, Constitutional Property Law (3d ed. Juta 2011).

[25] Const. of the Republic of S. Afr., 1996, § 25.

[26] Du Toit v Minister of Transport 2006 (1) SA 297 (CC).

[27] G. Solanki, V. Brijlal & R. Morar, The National Health Insurance Act, 115(5) S. Afr. L. Rev. 17 (2025).

[28] Iain Currie & Johan De Waal, The Bill of Rights Handbook165 (6th ed. Juta 2013).

[29]  Cool Ideas 1186 CC v Hubbard 2014 (1) SA 474 (CC).

[30] Charles Ngwena & Christopher Cook, Transforming Health Systems (Juta 2015).

[31] Charles Ngwena & Christopher Cook, Transforming Health Systems (Juta 2015).

[32] S.R. Benatar, Health Care Reform and the Crisis of Corruption in South Africa, 106(5) S. Afr. Med. J. 449 (2016).

[33] Const. of the Republic of S. Afr., 1996, § 1.

[34] Promotion of Administrative Justice Act 3 of 2000 (RSA).

[35] Cliffe Dekker Hofmeyr, Funding Options and Challenges for the NHI (2024).

[36] M. Dube & M.C. Mamadi, How Will the Suggested Funding Methods of the South African National Health Insurance Potentially Affect Individual Taxpayers?, Tax L. Rev. 142 (2024).

[37] Cora Hoexter, Administrative Law in South Africa141 (2d ed. Juta 2012).

[38] M. Moir, Comparing Performance of Universal Health Care Countries, Health Policy Rev. 6 (2025).

[39] C.M. Flood & G.P. Marchildon, Political Changes and Healthcare in Canada, Can. J. Health Policy 2 (2025).

[40] M. Blecher, Health Financing and National Health Insurance in South Africa, S. Afr. Health Rev. 40 (2018).

[41] D. McIntyre & J.E. Ataguba, Access to Quality Health Care in South Africa, Health Econ. Rev. 28 (2012).