- The Board of Healthcare Funders is challenging the validity of the NHI Act, citing inadequate public participation by Parliament.
- Parliament argues it followed constitutional requirements by holding extensive hearings and receiving numerous submissions.
- The Constitutional Court will hear the case from 5 to 7 May 2026, determining the legitimacy of the NHI Act and future public participation standards.
The Constitutional Court is preparing to hear an important case regarding the validity of the National Health Insurance (NHI) Act.
In this case, the Board of Healthcare Funders is challenging the law, claiming that Parliament did not ensure meaningful public participation throughout its legislative journey. In contrast, Parliament and the government maintain that they followed constitutional requirements by conducting extensive hearings and gathering public input.
From 5 to 7 May 2026, the apex court will evaluate whether Parliament acted in accordance with the Constitution when it passed the NHI Act. This case has been brought by Dr Joseph Katlego Mothudi, the Managing Director of the Board of Healthcare Funders NPC, with several respondents, including the Speaker of the National Assembly, the Chairperson of the National Council of Provinces, and various health political leaders, along with provincial executives.
A related application has also been filed by the Premier of the Western Cape Government, who is questioning the legislative process that led to the NHI Act’s adoption.
How the NHI Act was passed
The National Health Insurance Bill passed through Parliament, receiving approval from the National Assembly in June 2023 and the National Council of Provinces in December 2023, before finally being signed into law in May 2024. This legislation aims to establish a single national fund designed to provide healthcare services for all residents, advancing towards universal access to healthcare.
This challenge has been directed to the Constitutional Court under Section 167(4)(e) of the Constitution, which grants the court exclusive jurisdiction to decide on disputes concerning Parliament's fulfilment of its constitutional obligations.
Why the Board of Healthcare Funders says the process failed
The Board of Healthcare Funders argues that the validity of the NHI Act is compromised because Parliament failed to meet its constitutional duty for public participation as outlined in Sections 59 and 72.
In its written submissions, the NPC clarifies that its challenge does not oppose the idea of universal healthcare but instead focuses on how Parliament executed the process. It elaborates, “This case is not about whether the State bears a constitutional obligation to take reasonable measures to progressively realise access to healthcare services. The State does, and it must.”
The crux of the matter is whether Parliament fulfilled its responsibility to ensure meaningful participation. The Board asserts that critical information, such as funding details, covered services, and operational aspects, was not made available to the public during the legislative process. It argues, "Without answers to those questions, the public was left to comment on draft legislation whose most basic and structural features remained undefined."
Furthermore, the applicant contends that Parliament failed to adequately address the concerns raised by various stakeholders. Despite numerous submissions from the healthcare sector, it claims lawmakers did not seriously consider whether those concerns warranted adjustments to the Bill. It suggests, "The only reasonable inference is that, for a majority of lawmakers, the answers did not matter to the outcome."
The Board also criticises what it describes as a procedural approach to public participation, arguing that merely following formal steps such as hearings and written submissions is insufficient if the process lacks genuine engagement. It contends, "This case is about whether, by paying lip service to the formal mechanics of public participation, Parliament discharged its substantive obligations. It did not."
Why Parliament says the process was constitutionally sound
In its defence, Parliament and the Executive argue that the legislative process adhered to the constitutional standard of reasonableness. They emphasise that extensive public hearings were held across all provinces and a significant number of written submissions were received and taken into account.
They maintain that while the Constitution guarantees a reasonable opportunity for public participation, it does not ensure agreement with or adoption of all expressed views. They state, “The uncontested facts demonstrate that all interested parties were afforded a reasonable and meaningful opportunity to actively participate in and potentially influence the legislative process.”
The respondents further contend that the applicant’s case is misdirected, suggesting it effectively criticises the outcome of the legislation rather than the process itself.
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