Justices question procedural flaws argument in ConCourt NHI hearing
The Constitutional Court of South Africa has turned its focus to Gauteng’s public participation process as it continues hearing a challenge to the National Health Insurance (NHI) Act.
The case, brought by the Western Cape government and the Board of Healthcare Funders, centres on whether Parliament followed proper constitutional procedures when adopting the legislation in 2023.
Advocate Geoff Budlender, representing the Western Cape Premier, spent much of the day responding to probing questions from justices about whether the National Council of Provinces (NCOP) acted reasonably in facilitating public participation.
Justice Narandran Jody Kollapen questioned whether the court should assess the process as a whole or focus on specific failures.
"One looks at it in totality… the court must make an assessment as to whether the conduct of the NCOP was reasonable with regard to the totality of what occurred, including what happened at a provincial level and what ultimately came before the select committee. It’s important conceptually that we get the starting point right, because if we start from the wrong premise, we may well reach the wrong conclusion."
Budlender agreed that the broader picture matters but argued that certain failures are decisive.
"Reasonableness must be viewed in the broad and in the context of the entire legislative scheme… but that’s subject to a qualification, which is that there are some immutable elements of the process. If one or two key things which are essential and immutable are not done, that upsets the apple cart entirely and renders the process constitutionally defective."
He maintained that such “showstoppers” existed in this case, particularly in Gauteng.
"We submit that is the case in this matter, because in two provinces there was a fundamental failure of the process, and those failures go to the heart of whether the public participation requirement was meaningfully fulfilled or not."
A key issue raised by the bench was whether the absence of some public voices necessarily renders the process unconstitutional.
Kollapen noted that “there may be voices that will not be heard,” and questioned whether that alone determines reasonableness.
Budlender responded that the Constitution requires meaningful participation for those who do engage.
"Yes, there will always be some voices that are not heard, that is inevitable in any participatory process of this nature. But the rule laid down by this court is that those who take the trouble to make their voices heard must be heard, must be properly considered, and must be conveyed through the legislative process. You can’t say to members of the public who participated in good faith that, effectively, ‘bad luck for you, your inputs don’t matter.'"
Much of the debate centred on whether Gauteng’s public hearings were properly conveyed to the NCOP.
Kollapen pressed Budlender on whether the attendance of select committee members could compensate for the lack of formal reports.
"The minister says they did attend… are we entitled to assume at the very least that if those members attended those hearings, and if they were part of the select committee, that would have achieved what you describe as the linking mechanism between what happens at the provinces and what happens at the select committee?"
Budlender rejected this, saying there was no reliable evidence.
"There must be primary evidence placed before this court to substantiate that claim. This assertion that members attended is simply that—an assertion. It is not supported by any documentation, any reports, any minutes, or any confirmatory affidavits from those members themselves. There is therefore no real dispute of fact: on the one hand, we have no hearings reported, and on the other hand, we have no evidence that the alleged attendance actually took place."
He added that even if attendance were to occur, it would not cure the defect.
"Even if one were to accept, for argument’s sake, that some members did attend those hearings, it does not assist because there was no report to the select committee, neither written nor oral. The select committee, as a collective decision-making body, was therefore never properly apprised of what transpired in Gauteng, and that is the critical failure."
Justice Steven Mathopo questioned the credibility of the state’s evidence on Gauteng.
"If that does not meet the required standard, and if there is no satisfactory explanation placed before this court, that would mean that insofar as Gauteng is concerned, nothing much transpired in terms of a constitutionally compliant public participation process," Mathopo said.
Budlender agreed, saying the absence of verifiable evidence undermines the entire process.
"Yes, that is precisely our submission. If it did happen, there is no evidence to show that it happened, and even more importantly, there is no report to the select committee reflecting what occurred. That is the essence of the problem: the process cannot be said to be meaningful or constitutionally compliant if there is no demonstrable record of public input being considered at the national level."
The court also explored the implications of failures in both Gauteng and the Western Cape.
Mathopo asked: "Then what happens to the bill?… how are we going to unscramble this egg?"
Budlender suggested that, at a minimum, parts of the process would need to be redone.
"At the very least, the public participation process would need to be repeated in the affected provinces, and thereafter the select committee would have to properly consider the reports emanating from those processes, including any proposed amendments. Only then could the legislative process proceed in a constitutionally compliant manner."
However, he acknowledged that if the Board of Healthcare Funders' challenge succeeds, it could invalidate the entire legislative process.
'If the BHF succeeds in its argument, then the entire public participation process falls away, and the consequence would be that the whole legislative process must start afresh. That would mean going back to the beginning and ensuring that every constitutional requirement is properly met."
Justice Nonkosi Zoliswa Mhlantla raised questions about whether the final vote in the NCOP—where most provinces supported the bill—could stand despite procedural flaws.
Budlender argued that voting cannot legitimise a flawed process.
"You can’t take an unlawful process and then seek to legitimise it after the fact by saying that a majority supported it. The Constitution requires that the process itself must be lawful and reasonable from the outset. You cannot hijack an unlawful process and then say, ‘well, it’s lawful because five of us are in favour of it’."
The bench also interrogated the role of timelines, with Justice Steven Arnold Majiedt highlighting multiple extensions granted during the process.
Budlender conceded there was some flexibility but said it ultimately gave way to rigid deadlines.
"There was some initial flexibility, and extensions were granted at various stages. But at the end of the day, there was a fixed closing date—an apparent insistence that the bill had to be finalised by the end of the calendar year. That deadline appears to have driven the process in a way that compromised the quality and integrity of public participation, and crucially, that deadline has never been adequately explained."
The NHI Act, signed by President Cyril Ramaphosa, seeks to introduce universal healthcare in South Africa, but its implementation remains on hold pending the outcome of this high-stakes legal challenge.
The hearing continues, with the court expected to determine whether the alleged failures in Gauteng’s public participation process are significant enough to render the entire Act unconstitutional.
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