Parliament's public participation process over NHI Act to face scrutiny in ConCourt

CAPE TOWN - Parliament’s public participation processes are again set to come under scrutiny in the Constitutional Court, this time over the National Health Insurance (NHI) Act.

It’s one of three legal cases launched by the Board of Healthcare Funders (BHF) over the act, which aims to provide free healthcare at the point of service.

While challenges against the president in respect of this matter are still ongoing, the fund is now simultaneously taking aim at Parliament, saying its processes had merely been a tick-box exercise.

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The BHF contends that Parliament failed to conduct meaningful public participation because it did not take into account the public’s views on the matter, neither appear willing to do so.

In an affidavit filed by the fund’s managing director, Dr Joseph Mothudi, he contends that both the National Assembly and the National Council of Provinces (NCOP) merely went through the motions despite glaring flaws in the NHI Bill they were considering at the time.

The BHF says Parliament did not act rationally by passing the bill in December 2023, when it did not know what services would be covered under the act, neither did it know the costs involved.

By failing to conduct a costing exercise, the BHF says in effect, Parliament signed a blank cheque, when it is responsible for allocating money to the NHI Fund from which services are to be paid.

The fund further contends that Parliament outsourced its responsibilities and powers to the health minister and other bodies to make determinations that would guide the act and that until regulations are promulgated, the true substance of the act can’t be known.

"This again demonstrates that the public was denied a meaningful opportunity to participate in the law-making process. A member of the public cannot provide meaningful submissions without a sufficiently clear understanding of how the draft law will work in practice and the impact it will have on people,"says Mothudi.

The BHF says given these circumstances, the president’s decision to sign the act into law should be declared invalid and set aside.

In May, the BHF was successful in a high court application to have the president present his record of decision in this matter submitted to the court.

That ruling is currently being appealed.