On what grounds are the legal challenges against the contentious NHI Act being fought?

The National Health Insurance (NHI) Act has long been a controversial piece of legislation among organisations in the health sector and in the broader arena of public opinion.

Since it was signed into law by President Cyril Ramaphosa in May 2024 — shortly before the general election — there has been a spate of legal challenges to the Act seeking amendments to certain sections, and in some cases, an outright withdrawal of the law.

There are five legal challenges on the books, led by the South African Medical Association (Sama), the Board of Healthcare Funders (BHF), the Hospital Association of South Africa (Hasa), the South African Private Practitioners Forum (SAPPF) and the trade union Solidarity.

What outcomes are these challengers gunning for, and how does the fight over the Act stand to affect the broader agenda of healthcare reform?

Read more: Everything you ever wanted to know about the NHI but were afraid to ask

South African Medical Association

The South African Medical Association is the most recent legal challenger to the NHI Act, launching its case against the legislation on 2 April in the Gauteng Division of the High Court in Pretoria.

Sama is a non-statutory professional association for public and private sector medical practitioners, registered as a nonprofit company. According to its website, it has more than 11,900 members.

At a press conference announcing the legal challenge on 1 April, the association’s chairperson, Dr Mvuyisi Mzukwa, described the litigation as the “most comprehensive constitutional challenge to the National Health Insurance Act to date”.

It is contesting multiple provisions in the Act that it states will “severely prejudice both doctors and patients alike”, including the requirements that:

• Every South African will need to register as an NHI “user” receiving treatment, a process that raises concerns about access for unregistered individuals;


• Registration can only occur at an accredited primary healthcare provider, with patients required to seek care at their registered facility first, even if that facility is overloaded or incapable of providing appropriate treatment; and


• Complaints about poor service delivery will be handled by a single, centralised investigative unit within the NHI Fund’s National Office — a mechanism Sama believes will be “wholly inadequate” to respond to the large scale of grievances in a timely or effective manner.

Other concerns raised by Sama include:

• A lack of clarity in the Act about which services will be covered by NHI;


• The unclear system for the procurement of medical supplies under NHI, which raises “serious concerns about supply chain management and stock shortages”;


• The consequences the Act will have for healthcare professionals, who will be required to meet “impossible accreditation standards” and work well beyond their normal capacity for less income; and


• A lack of provisions in the Act to insure private sector doctors against medico-legal claims, despite these doctors operating within NHI protocols.

Read more: SA Medical Association to challenge ‘dangerously flawed’ NHI Act in high court

“Sama is not opposed to the goal of universal health coverage. We strongly believe in equitable, high-quality healthcare for all South Africans. However, the NHI Act risks collapsing our healthcare system rather than strengthening it,” said Mzukwa.

Sama is a member of the Universal Healthcare Access Coalition (UHAC), alongside the Progressive Health Forum and the SA Private Practitioners Forum. The collective has been pushing a joint proposal to reform the healthcare system as an alternative to NHI, stating that their plan offers “pragmatic, scalable and equitable solutions” to enhance healthcare access in South Africa.

Read more: Healthcare coalition proposes ‘pragmatic’ reforms for SA, says NHI ‘unworkable’

Dr Aslam Dasoo, a health activist and member of the UHAC steering committee, said the objectives of the NHI could take more than a decade to implement, while the reforms put forward by UHAC were suited to the current needs within the health system.

“Our view is that we completely back [Sama’s legal challenge]... All strength to their arm, they must go ahead,” he said.

“If you take the other [legal challenges], they go for specific areas of law… What Sama did, in addition, was to actually look at not just the constitutional problems with this thing, but the health policy problems and the financial implications.”

Board of Healthcare Funders

The Board of Healthcare Funders, a nonprofit company that represents more than 40 South African medical schemes, launched its legal challenge to the NHI Act on 27 May 2024 in the Gauteng Division of the High Court in Pretoria.

The BHF has requested that the court review and set aside Ramaphosa’s decision to sign the NHI Act into law, according to its notice of motion.

“While we support the objective of universal health coverage for all and are committed to working with government to progress towards this goal, we hold serious reservations about the NHI Act in its current form,” the BHF told Daily Maverick.

Among the concerns raised by BHF are:

• The “broad, vague terms” of the Act, which delegates “excessive decision-making power” to unelected officials without sufficient oversight from Parliament;


• The failure of the Act to provide a concrete and transparent funding mechanism;


• The limitation on individuals’ ability to choose their healthcare providers and schemes, which BHF describes as an “impairment of existing constitutional rights”;


• The government’s alleged failure to amend the Act in response to submissions from BHF and other stakeholders during the public consultation process;


• The Act’s potential to reduce access to healthcare by imposing rigid referral pathways that restrict patients’ choice, driving health professionals out of the system and “jeopardising the viability of the private sector”; and


• The centralisation of authority in the NHI Fund under the minister of health.

“President Ramaphosa signed the NHI Bill in May 2024, bringing it into force as an Act of Parliament. In doing so, he ignored all the well-reasoned arguments made by a range of stakeholders from business, civil society and health interest groups… As there were clear reservations about the constitutionality of the legislation, the President was obligated by law … to refer the Bill back to the National Assembly for reconsideration. He did not do this,” said the BHF.

The matter was heard in the high court on 4 and 5 March, with judgment currently reserved.

Hospital Association of South Africa

The Hospital Association of South Africa (Hasa) represents private hospital organisations, including Mediclinic, Life Healthcare and Netcare. In late February, it lodged papers in the Gauteng Division of the High Court in Pretoria, challenging the NHI Act.

Hasa has asked the court to declare the Act unconstitutional and unlawful and set it aside, according to a Business Day report. In particular, it is challenging section 33 of the legislation, which states that once the NHI has been fully implemented, medical schemes will be restricted to providing complementary cover for benefits not covered by the national fund. These restrictions on medical schemes are “irrational”, says Hasa.

The private hospital association focused on the financial implications of the NHI Act, stating that the legislation was incoherent, financially unviable and at odds with the Constitution.

“We remain firmly committed to participating constructively while the legal process unfolds. As an organisation, we have always preferred to resolve matters through dialogue, and we believe that effective healthcare solutions are urgently needed and achievable through a reasonable and collaborative approach,” said Melanie da Costa, chairperson of Hasa, in a press statement announcing the association’s legal challenge.

South African Private Practitioners Forum

The South African Private Practitioners Forum (SAPPF) launched its legal challenge against the NHI Act in the Gauteng Division of the High Court in Pretoria on 1 October 2024. It is asking that Ramaphosa’s decision to assent to and sign the Act be reviewed and set aside.

“SAPPF argues that President Cyril Ramaphosa failed to adequately scrutinise the constitutionality of the NHI Bill before signing it into law, thereby violating his constitutional duty,” the forum told Daily Maverick.

The organisation has also argued that the Act is “impermissibly vague, leaving both the public and healthcare providers uncertain about access, processes and rights.

“It is irrational and unworkable, lacking critical feasibility studies, budget forecasts, or socioeconomic impact assessments,” it said.

The SAPPF has contested the Act on constitutional grounds, stating that it violates the right to dignity; freedom of trade, occupation and profession; and access to healthcare, among others.

Solidarity trade union

Solidarity trade union represents more than 200,000 members, according to its website. It was the first organisation to launch a legal challenge against the NHI Act, lodging its papers in the Gauteng Division of the High Court in Pretoria in May 2024.

It has asked the court to declare the Act to be unconstitutional and invalid.

In its founding affidavit, Solidarity stated that the NHI, “though morally praiseworthy in its intentions”, didn’t pass constitutional muster.

“The statute, which does not provide for a clear funding model and which leaves the determination of health services to be purchased by the NHI Fund as monopsony buyer to a future endeavour, fails at the first constitutional hurdle. This, because the scheme that is created under the NHI Act is vague,” it said.

Solidarity criticised Section 33 of the Act concerning the restriction of medical schemes, stating there was “no guidance on any criteria” which must be satisfied before the minister of health can enact the restrictions.

“The NHI Act poses a threat to the existing access [to quality health services] of at least some — especially members of medical schemes. The statute’s proposed limitation of services provided by medical schemes is inconsistent with the state’s duty to respect socioeconomic rights,” said Solidarity.

The trade union raised concerns about the concentration of decision-making powers over the NHI to the minister of health and the board of the fund.

Department of Health stands firm

Health Minister Dr Aaron Motsoaledi has doubled down on his support for the NHI Act in recent months, dismissing many of the criticisms of the legislation as “elitist” and “discriminatory”.

In a Business Day report, Motsoaledi claimed that the “nub of Solidarity’s complaint is its discomfort with the fact that the majority of the population who now use the public healthcare system will be afforded access to private healthcare providers and facilities under the NHI Act, which are now the exclusive domain of those who are better off”.

Speaking before the second meeting of the G20 Health Working Group in March, he told assembled dignitaries that the NHI was designed to “provide financial protection for all, ensuring that access to quality healthcare is not dependent on one’s ability to pay.

“The NHI is a concrete demonstration of our commitment to leaving no one behind, fostering equity and strengthening our health resilience,” he said.

Read more: Motsoaledi calls for ‘renewed action’ towards universal health coverage at G20 Health Working Group

When Daily Maverick reached out to the national Department of Health about Sama’s legal challenge, spokesperson Foster Mohale said the department had noted the decision of Sama and other organisations to exercise their constitutional right to litigate against the NHI.

“The department will respond accordingly through legal channels for what we believe is part of a transformative agenda to address the legacy of the apartheid system, in providing quality and affordable healthcare for all citizens, regardless of their socioeconomic status,” said Mohale.

“Parliament conducted public hearings countrywide on the NHI Bill as part of a public consultation process where individuals and stakeholders were afforded an opportunity to air their views… Unfortunately, in this case the privileged minority could not decide for the disadvantaged majority who equally deserve a better life. The government has an obligation to remove any barriers to accessing quality and affordable healthcare for all.”

With no concrete outcomes to any of the legal challenges against the NHI at this stage, the future of the Act is uncertain. DM