HFA Opposes Minister’s Bid to Delay NHI Court Challenges

The Health Funders Association (HFA) has announced its opposition to the Minister of Health’s court application, which seeks to stay both the HFA’s and all other pending court challenges to the constitutionality of the National Health Insurance (NHI) Act, and to consolidate them into a single case pending the outcome of the assent challenges reviewing the President’s decision to sign the Act.

HFA warns that the Minister’s attempt to delay and consolidate these cases could stall justice for years, allowing the NHI to be implemented before the courts have ruled on its constitutionality. This risks causing irreversible harm to healthcare access, the economy, and the rights of all South Africans.

While the Minister has undertaken not to publish regulations under section 33 during the stay, the HFA’s view and argument is that this undertaking is effectively meaningless. Section 33 deals only with the restriction of medical schemes to complementary cover once the NHI is “fully implemented,” but the Act empowers the President to bring other provisions into force at any time. These provisions can be implemented incrementally, fundamentally altering the healthcare system, reallocating budgets, and causing immediate and irreversible harm to medical schemes, their members, and the public. The Minister’s undertaking does nothing to prevent the rollout of these damaging provisions, and thus the risk to healthcare access and quality remains both immediate and severe.

In its opposing affidavit, HFA argues the following:

• The delay undermines constitutional rights. Section 34 of the Constitution guarantees the right to have disputes decided in a fair public hearing without undue delay. A stay could deprive HFA and the other applicants challenging the constitutionality of the Act itself of their rights to have their applications adjudicated expeditiously, or at all. The HFA’s case, like the others, highlight the devastating effects that the NHI Act will have on South African citizens should it be allowed to be commenced and implemented.

• Immediate and Irreversible Harms of NHI Implementation
- Loss of Private Cover: Higher taxes and scrapping of tax credits will make medical schemes unaffordable for many, forcing millions onto the overstretched public system.
- Collapse of Medical Schemes: Rising costs will drive out younger, healthier members, risking a collapse that leaves only the wealthy with private options.
- Healthcare Worker Exodus: Uncertainty and financial strain will push professionals to leave, worsening staff shortages and care quality.
- Unaffordable Costs: More people will face crippling out-of-pocket expenses for treatments not covered by NHI.
- Reduced Access: Longer waits, rationed services, and less access to medicines will hit ordinary South Africans hardest.

These harms will affect ordinary South Africans and the working class most, not just a small minority. Immediate legal scrutiny is essential to prevent lasting damage to the country’s healthcare system.

• The Minister’s grounds for a stay are flawed. The legal challenges before the courts are not all the same. Some concern the President’s decision to sign the Act, while others - like HFA’s - directly challenge the constitutionality of the NHI Act itself. Delaying all cases for the sake of unrelated procedural issues is unjust and unnecessary. HFA is not involved in the other matters relating to assent challenges of the President’s decision to sign the Act, and those matters do not deal with HFA’s substantive legal challenges on the constitutionality of the NHI Act. Staying HFA’s application until these other matters are concluded will not prevent “parallel enquiries” as claimed by the Minister.

• Consolidation of the constitutional challenges is not the answer. HFA opposes the consolidation of the constitutional challenges to the NHI Act, arguing that each represents distinct applicants, interests, and legal arguments, often supported by different expert evidence. Merging them into one case risks slowing all cases to the pace of the slowest, potentially causing significant delays, legal confusion, and procedural disputes, particularly regarding evidence and interlocutory matters. HFA supports efficiency through case management and the possibility of coordinated or simultaneous hearings of cases that are ready, rather than through formal consolidation, which it contends would prejudice all parties involved.

• Government must defend the laws it makes. The prejudice the Minister cites is the cost and burden of litigation. The HFA argues that this is not a valid reason to delay or stay the constitutional challenges, as defending legislation - especially one with such far-reaching national consequences - is an inherent and expected responsibility of government. The HFA further contends that the existence of multiple legal challenges to the NHI Act is a reflection of widespread concern about its constitutionality and impact, and that it is in the public interest for these challenges to be adjudicated promptly and fairly. The government, having enacted such significant legislation, must be prepared to justify and defend it in court, rather than seeking to avoid or delay scrutiny on the grounds of inconvenience or cost.

HFA has presented compelling evidence, supported by independent economic modelling, demonstrating that the current design of the NHI Act will lead to higher personal income taxes, reduced healthcare access, and a decline in the quality of care. The adverse impact will disproportionately affect the working class, who already bear the majority of the tax burden.

The NHI Act raises serious constitutional, economic, and operational concerns that must be tested in court without delay. Pausing these cases while rolling out the NHI Act will lock in irreversible changes before the courts have had their say. South Africans deserve clarity now, not years from now, when the damage is already done.