CONCOURT must safeguard meaningful public participation in NHI lawmaking
4 May 2026
Tomorrow, the Constitutional Court will hear the Board of Healthcare Funders' (BHF) application challenging the constitutionality of the parliamentary process that led to the adoption of the NHI Act in 2023. Our application argues that Parliament has failed to comply with its constitutional obligation to facilitate meaningful public participation before passing the NHI Bill, and therefore the Act should be declared invalid and set aside.
The case of BHF is not a challenge to the principle of universal health coverage. BHF supports the need to expand access to quality, affordable health care for all South Africans. The case is about whether Parliament discharged its constitutional duty to facilitate meaningful public participation before passing a law that fundamentally reshapes the country's health system.
BHF argues that the public participation process was materially inadequate because Parliament and the public were not provided with sufficient information to properly assess the implications of the Bill, including the proposed basket of services, funding model, operational design and implementation framework. Without this information, meaningful engagement and subsequent decision-making was impossible, and thus Parliament was not placed in a position to properly test whether the legislation would achieve its stated objectives.
This is not a matter of opposing health care reform. It is about ensuring that reform of this scale is based on a legitimate, transparent and credible process. South Africans deserve a health system that expands access, protects patients and is financially and operationally viable. Meaningful public participation is not a technical matter. This leads to better and constitutionally consistent laws.
At the heart of the BHF's application is a simple but serious failure: the public was not provided with sufficient information about the structure and funding of the proposed National Health Insurance Scheme to participate meaningfully in the debate about the Bill. Accordingly, the bill was adopted without a clear understanding of its financial implications or its potential impact on advancing access to health care. Under these circumstances, there remains considerable uncertainty over how the plan will work in practice and whether it will achieve its intended objective of achieving UHC in South Africa.
The NHI Act has far-reaching implications for patients, health care professionals, medical schemes, employers, taxpayers and the wider health system. Legislation of this magnitude must be developed through a process that is transparent, appropriately informed, and responsive to genuine concerns raised by the public and affected stakeholders. This should not be limited to whether the public supports the objectives of the legislation, but rather how the legislation should be drafted to meet the objectives of UHC.
The BHF case is based on a simple but important principle: public participation must be meaningful, not merely procedural. These concerns are reflected in the four main legal and constitutional bases underpinning our application:
- Insufficient public participation: While Parliament held hearings and received submissions, there is insufficient evidence that these inputs were meaningfully considered or influenced the final legislation in accordance with sections 59 and 72 of the Constitution.
- Lack of clarity and completeness in the Bill: The NHI Act does not adequately define key elements such as the scope of benefits, funding mechanisms and implementation framework, limiting meaningful engagement and raising concerns about legislative certainty.
- Excessive delegation of powers: The Act grants the Minister of Health broad powers to set important aspects of the scheme through future regulations, with limited parliamentary oversight. Key components of the NHI Act were not considered, but rather deferred to the Minister.
- Concerns regarding rationality and feasibility: The law was adopted in the absence of updated and reliable financial modeling, despite such information being provided in various presentations to the public, raising genuine questions about affordability, sustainability, and whether the Act meets the constitutional standard of rational lawmaking.
In our submission to the Constitutional Court, we argue that this process has effectively become a “tick-box exercise” by Members of Parliament rather than genuine engagement with public input. Where participation is reduced to something more than substance, it undermines both the law and the legitimacy of the democratic system it seeks to create.
BHF's court action is ultimately about protecting the integrity of health care reform and the rights of all South Africans to a transparent, legitimate and effective health system.
BHF is committed to developing a sustainable health care system that harnesses the strengths of both the public and private sectors to expand access to quality care for millions of South Africans.
Issued by Healthcare Funders Board, 4 May 2026