Gauteng public participation at centre of NHI ConCourt challenge
The Constitutional Court is hearing arguments placing Gauteng’s public participation process at the centre of a major legal challenge to the National Health Insurance (NHI) Act.
The apex court is on its second day of hearing a high-stakes legal challenge to the NHI Act, with arguments focusing sharply on whether Parliament followed proper constitutional procedures in adopting the law.
The case, brought by the Western Cape government and the Board of Healthcare Funders, argues that Parliament failed to meet constitutional standards when passing the law in 2023.
Advocate Geoff Budlender told the court that failures in Gauteng effectively meant the public had no real influence on the legislation.
"It’s common cause that the NCOP was not given any report on the public hearings in Gauteng… and because the NCOP was not informed of what had happened in Gauteng, in effect it was as if there was no public participation at all in Gauteng."
He argued that the absence of reports or clear evidence that Select Committee members attended hearings meant the process broke down entirely.
"The filtering through to the NCOP can be achieved in one of two ways… by giving the NCOP reports on what happened at those hearings, or alternatively, members of the select committee can personally attend those hearings and then inform the other members."
Budlender told the court neither of these occurred in Gauteng.
"There’s no evidence at all to support that proposition… the minister doesn’t say on what factual basis he makes this assertion… he provides no evidence."
He added that even on the minister’s own version, there was uncertainty about attendance at public hearings.
"All 60 meetings, if not the majority, were attended… so he doesn’t know whether in fact all were attended… on his own evidence, he doesn’t know."
The court heard that no formal reports or minutes reflect any engagement with Gauteng submissions, further weakening the legitimacy of the process.
"What happened at the Gauteng public hearings was never communicated to the select committee… and we say if there had never been any hearings at all, that would have been fatal to the process."
Budlender argued that the effect was the same.
"Because there was no report at all… in effect it was as if there was no public participation at all in Gauteng… members of the public were therefore unable to influence what happened."
While Gauteng formed the core of the argument, the court also heard criticism of how the Western Cape’s submissions were handled.
Budlender said the select committee adopted the bill without receiving a report on public hearings in the province or its final negotiating mandate.
"The committee adopted the bill, having never had a report on the public hearings in the Western Cape, and having never had a final mandate of the Western Cape on the bill."
A later meeting to address this gap was described as inadequate.
"There was no discussion of the Western Cape proposals, none… the committee then adopted the bill exactly as before… the entire meeting took 35 minutes," he told the court.
Budlender argued that constitutional obligations were sacrificed to meet tight legislative deadlines.
"The timetable must be subordinated to the rights guaranteed in the Constitution… the rights don’t give way to the timetable, the timetable gives way to the rights."
The applicants are asking the court to declare the Act invalid and to send it back to Parliament for reconsideration.
The NHI Act, signed into law by President Cyril Ramaphosa, aims to provide universal access to healthcare through a single funding system.
However, its implementation has been delayed pending the outcome of this case, which could have significant implications for both healthcare reform and how laws are passed in South Africa.
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