A fresh legal battle over the National Health Insurance Act has put Parliament’s public participation process back under the spotlight, with the Constitutional Court hearing a second day of argument on whether South Africans were properly consulted before the law was passed. The case, brought by Western Cape Premier Alan Winde, comes as the contentious NHI reforms continue to face fierce resistance from provinces, the health sector and policy experts who say the process used to push the law through was deeply flawed.
At the centre of Wednesday’s hearing was not the merits of the NHI itself, but whether Parliament followed the Constitution when it held public hearings in Gauteng and the Western Cape. That question matters because the NHI Act, signed into law by President Cyril Ramaphosa in May 2024, represents one of the biggest shake-ups ever proposed for South Africa’s healthcare system. It aims to pool public and private resources into a single state-run fund, a change that has triggered intense political and legal pushback.
The court has now heard two linked challenges to the law. On Tuesday, judges listened to submissions from the Board of Healthcare Funders (BHF), which represents 65 medical aid schemes, administrators and managed care organisations serving 4.5 million beneficiaries. The BHF says Parliament failed to properly engage with major concerns around the cost of NHI and the funding model needed to make it work. Winde’s challenge is narrower, but no less important: it focuses on whether the consultation process in two key provinces met constitutional standards.
Advocate Geoff Budlender SC, appearing for Winde, argued that the problem was not just one of timing, but of substance. He told the court that the hearings were rushed and that meaningful public engagement was effectively impossible. In papers before the court, he said reports from Gauteng were never properly submitted to the National Council of Provinces (NCOP), while the Western Cape’s report was only tabled after decisive steps in the process had already been taken.
Budlender’s argument is that once the select committee failed to properly deal with those reports, the constitutional duty to facilitate public participation had already been breached. In simple terms, he said Parliament cannot rely on a process that excludes the very evidence it is meant to consider. “There is no other public participation process,” he told the court. “If the select committee fails to conduct public participation in the manner required by the Constitution, then the NCOP has failed to conduct the public participation in the manner required by the Constitution.”
NHI Act public participation challenge intensifies in Constitutional Court
He also pushed back against Parliament’s claim that its timetable was fixed and could not be altered. According to Budlender, that logic turns the Constitution on its head. The rights of the public, he said, must come before the deadlines set by legislators. The argument is likely to resonate with judges who have previously warned against treating consultation as a box-ticking exercise.
Budlender also placed emphasis on the role of the NCOP, which is meant to represent provincial interests in national law-making. He said the body is not a ceremonial add-on, but a vital democratic link between provinces and national government. That link, he argued, becomes especially important in legislation like the NHI Act, which directly affects how health services are planned and delivered across the country.
During questioning, Justice Rammaka Mathopo probed Budlender on whether Parliament’s papers suggested that hearings had in fact taken place in Gauteng. Mathopo asked whether the complaint meant “nothing much transpired”, and if so, whether there was proof to support that claim. Budlender replied that even if hearings did happen, there was no written or oral report before the select committee, which meant the process still could not be said to have complied with constitutional requirements.
The judge then asked a practical question that goes to the heart of the legal remedy: if Winde succeeds, how does the court “unscramble this egg”? Budlender acknowledged that the solution would likely require the public participation process to be done over, at least in Gauteng and the Western Cape. Only after that, he said, could the select committee properly consider the reports and any proposed amendments. He described that as the most limited or “minimalist” fix available.
Parliament, however, wants the case thrown out. Its lawyers say the Western Cape had not raised objections at the time and acted unreasonably in bringing the challenge now. Ngwako Maenetje SC, for Parliament, argued in papers that there can be “no doubt” that extraordinary steps were taken to involve the public before the Bill was adopted. Parliament also points to the fact that the Western Cape Provincial Legislature asked for an extension because it wanted more time to hold extra hearings, analyse the responses and finalise its negotiating position.
According to Parliament, the process was neither rushed nor superficial. It says it spent R14-million on public participation nationwide and insists there was “overwhelming support” for the Bill. Parliament also argues that no one disputes the importance of the NHI Act, precisely because it changes the way the State gives effect to section 27 of the Constitution, which guarantees access to healthcare. In its view, that significance justified a broad and lengthy consultation process.
For now, the court has reserved judgment in both matters, leaving the future of the National Health Insurance Act in the hands of the judges. The outcome could have major implications not only for the law itself, but also for how Parliament must consult the public when passing major national legislation. As we reported earlier, the legal fight over NHI is far from over, and this latest round in the Constitutional Court suggests the battle is likely to remain one of the most closely watched in South Africa’s political and health-policy landscape.