NHI under fire as legal team flags public participation flaws

Legal representatives challenging the National Health Insurance (NHI) Act have told the Constitutional Court that serious flaws in the public participation process could render the entire law unconstitutional.

Advocate Wim Trengove, representing the Board of Healthcare Funders and the Western Cape Government, argued that key parts of the legislative process were fundamentally compromised, to the extent that it was as if no meaningful public participation took place at all.

At the centre of the case is whether Parliament fulfilled its constitutional obligation to ensure meaningful public involvement when passing the NHI Act.

Trengove pointed to Gauteng as a critical example, saying that while public hearings were held, their outcomes were not properly communicated to the National Council of Provinces (NCOP), limiting the impact of public input on the legislative process.

He told the court there is no evidence that reports were submitted, that relevant officials attended the hearings, or that public feedback was ever formally presented to lawmakers.

The challenge has been brought by both the Western Cape Government and the Board of Healthcare Funders, who argue that the NHI was rushed through Parliament without adequate provincial involvement or proper consultation.

Proceedings have now shifted to whether the legislative process met constitutional standards, including the adequacy of public participation and whether concerns around funding, governance, and corruption safeguards were properly addressed.

Advocate Geoff Budlender, also representing the challengers, warned that failures at a provincial level could have far-reaching consequences.

He told the court that if provinces failed to meet constitutional requirements, the process cannot stand and may need to be redone, either in part or in full.

Budlender identified Gauteng and the Western Cape as among the provinces where these shortcomings are most evident.

He added that even the most limited remedy would require fresh public hearings in affected provinces, followed by renewed deliberations at the NCOP.

The Constitutional Court is also expected to probe whether there are sufficient safeguards against corruption within the NHI framework, and whether the state has a credible plan to build public trust in the system.

The outcome of the case could play a decisive role in shaping the future of universal healthcare in South Africa.

Written by: Lebohang Ndashe