• 17/02/2026

NHI Act Challenged in Courts: Minister Held in Check

The NHI Act under scrutiny

The National Health Insurance (NHI) Act remains one of the most contentious pieces of legislation in post-democratic South Africa to the point that the Constitutional Court is now considering its future as a practical plan and whether government is hearing a public outcry on its advisabilty. President Cyril Ramaphosa signed the NHI Act into law in May 2024, aiming to create a single-payer universal healthcare system funded largely through public revenue and administered via a centralised National Health Insurance Fund. The stated objective is to ensure equitable access to healthcare services for all South Africans, addressing structural inequalities between the private and public sectors.

However, the Act’s passage was fraught with controversy—not least because of strong opposition from the private healthcare industry, organised labour, opposition parties such as the Democratic Alliance, and several provincial actors. A central element of the controversy is the allegation that Parliament’s legislative process, particularly in the National Council of Provinces (NCOP), failed to fulfil constitutional requirements for meaningful public participation, especially given the Act’s complexity and nationwide impact.

The Constitutional Challenge

In September 2025, the Western Cape Government (WCG) took the fight to the Constitutional Court, arguing that the NCOP did not adequately consider the extensive provincial public hearings on the NHI Bill. According to the province and its Health and Wellness MEC, Mireille Wenger, submissions from public hearings—including those opposing the Bill—were not properly debated or factored into legislative deliberations, rendering the NCOP’s approval constitutionally invalid. The WCG has asked the Constitutional Court to declare the NHI Act unconstitutional and invalid on this basis.https://www.westerncape.gov.za/health-wellness/article/western-cape-government-launches-challenge-nhi-act-defend-constitutional-rights-residents?utm_source=chatgpt.com

This legal argument echoes broader concerns that Parliament—empowered by Sections 59 and 72 of the Constitution to ensure meaningful public involvement in lawmaking—effectively reduced public participation to a procedural formality, particularly given the ANC majority at the time of passage. Critics argue that critical issues such as funding, service coverage, the future role of medical schemes and provincial health departments, and governance structures were inadequately addressed.

Multiple Legal Fronts

The Western Cape’s challenge is one of several legal actions mounting against the NHI Act. Associations representing the Board of Healthcare Funders (BHF) and the South African Private Practitioners Forum (SAPPF), as well as groups like Sakeliga and Solidarity, all of whom have launched separate applications arguing that the Act is irrational, unaffordable, and unconstitutional, particularly in its funding mechanisms and its potential to marginalise private healthcare provision.http://Health Funders Association legal challenge against NHI Act: https://www.enca.com/news-top-stories/health-funders-association-challenges-nhi-act-over-cost-and-constitutionality

NHI Act: Bold Decisions

The Gauteng High Court in Pretoria has already ruled that the President’s decision to assent to the NHI Act is “reviewable,” ordering Ramaphosa to provide the full record of decision to justify why he signed the Bill into law—a significant step that exposes the executive’s reasoning to judicial scrutiny. The President has appealed this ruling and is seeking direct access to the Constitutional Court to overturn it, arguing that presidential assent is an executive function that cannot be judicially reviewed in this manner.

It is interesting to note, therefore, that the President’s rebuttal is based on the challenge to his powers and not whether the NHI Act suits the task set out in its intentions.

The Minister of Health, Dr Aaron Motsoaledi, has also filed applications in the high court to stay all ongoing challenges against the NHI Act until the jurisdictional issues in the Constitutional Court are resolved. This has been opposed by several parties, including the Hospital Association of South Africa (HASA) and the Health Funders Association, which argue that delaying litigation only prolongs uncertainty and undermines legal accountability.

Status in the Courts

As of early February 2026, the Constitutional Court has deferred hearings on the appeal and is prioritising matters on whether public participation was constitutionally compliant, indicating that these issues may be heard first.

Legal analysts suggest that the court’s focus on public participation and procedural fairness—rather than substantive policy merits—reflects prioritisation of democratic process safeguards as possibly the major issue. At the same time, warnings that NHI’s rollout would be bogged down in litigation for years are proving accurate.

SONA and the NHI Act

Expectations were mixed about whether the NHI would feature prominently in policy announcements in SONA, but when asked by the media two days before the address to Parliament, the President replied that he did not wish to pre-empt ongoing constitutional litigation. This turned out to be the case.

Given that the NHI Act is already law but not yet implemented, Parliament is not currently engaged in further passage steps. However, should the Constitutional Court find that public participation was deficient, particularly in the case of written submissions and parliamentary hearings, the Act could be struck down or remitted to Parliament for re-consideration, forcing a new legislative cycle or an abandonment. Bearing in mind the current structure of the coalition GNU, the post of the Minister of Health is held by the ANC.

Conclusion

In summary, the NHI Act’s status is not now about parliamentary passage but a high-stakes constitutional battlefield centred around the argument as to whether Parliament met its constitutional obligations in reviewing public comment, whether the presidential assent by signature to the Bill is open to judicial review, and whether the envisioned universal healthcare system is affordable and workable.

The outcome of these legal proceedings—likely to unfold over a long period—will determine whether NHI survives as a legal framework, whether it is amended, and whether the political drive behind the principles of the NHI continues. Minister Motsoaledi, for as long as he occupies that post, would be well advised to concentrate on rebuilding South Africa’s health structure and medical services so that they reach all poorer citizens, rather than pursuing a state-run universal free health service purely to meet ideological objectives.

Patrick McLaughlin

editor