NHI Act faces Constitutional challenge

The National Health Insurance (NHI) Act is under intense legal scrutiny as Solidarity, the Board of Healthcare Funders, and several other groups challenge its constitutionality at the Constitutional Court.

The applicants argue that the NHI Act serves the interests of government rather than those of SouthA= African citizens, raising concerns over its impact on the quality and accessibility of healthcare.

The state is appealing a ruling by the Gauteng High Court, which previously struck down key sections of the Act — including the controversial certificate of need requirement — as irrational and unconstitutional.

Signed into law in 2024, the NHI Act aims to create a single, centrally-managed fund to pay for healthcare services and guarantee universal health coverage. However, critics say the law’s implementation poses risks to the healthcare system, including overregulation, mismanagement, and limited access to private medical services.

The court application comes amid revelations that Health Minister Aaron Motsoaledi has already spent nearly R10 million on legal fees to defend the NHI Fund and Act. In May, the minister confirmed that the Department of Health is currently facing seven legal challenges against the fund and its implementation.

Last year, the Pretoria High Court ruled that sections 36 to 40 of the Act – which would give the state power to dictate where healthcare professionals can operate – were unconstitutional.

Representing the applicants, advocate Margaretha Engelbrecht, told the court that the Act unfairly burdens the private and does little to address the shortage pf public hospitals and infrastructure. They told the court that the country’s shortage of hospitals is not the responsibility of the private sector.

Another legal representative, Bruce Edward Leech, told the court that his clients are deeply concerned about the availability pf resources, including beds and medical equipment. He warned that resource distribution in the urban areas does not equate to equitable access nationwide.

The NHI has long faced criticism, with concerns around its financial viability, the risk of higher taxes, and fears of corruption.

The certificate of need provision, a central point of contention, would require healthcare providers to obtain government approval before establishing or expanding facilities—effectively giving the state control over healthcare planning and limiting the autonomy of private practitioners.

Critics argue that this could stifle innovation, delay access, and ultimately reduce service quality.

In defense, the state—represented by Advocate Ngwako Hamilton Maenetje—argued that the certificate of need is a crucial regulatory tool for implementing the NHI and ensuring equitable distribution of healthcare services.

The state also contended that the opposition to the NHI stems from a broader resistance to reform in a historically unequal system.

The hearing follows a July 2024 ruling by the North Gauteng High Court, which declared parts of the Act to be arbitrary, irrational, and unconstitutional.

 

Minister Motsoaledi has consistently defended the NHI as a “moral imperative” to end healthcare inequality, pointing out that 84% of South Africans rely on an underfunded public system while only 16% benefit from private care.

Written by: Lebohang Ndashe