- The Constitutional Court of South Africa in early May this year became a battlefield For one of the most consequential controversies over health legislation since democracy.
- The issue before the court was not whether the National Health Insurance (NHI) Act – the government's proposed road to universal access to healthcare – was a good idea.
- Sadly, no matter what the court decides, it seems that controversy and possibly litigation will continue.
- But in some ways, whatever the court decides should be considered a victory: It will the result of a process of rational deliberationAnalyzing evidence, testing arguments against the facts, and weighing it all against a deep set of legal principles and precedents.
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Comment
The Constitutional Court of South Africa in early May this year became a battlefield For one of the most consequential controversies over health legislation since democracy.
The issue before the court was not whether the National Health Insurance (NHI) Act – the government's proposed road to universal access to healthcare – was a good idea. rather the judges were asked to decide Did Parliament follow the correct procedure When it passed the National Health Insurance Act.
the courtroom was packed. Health rights activists sat with private hospital owners and financiers, trade unionists and government officials. While the dispute outside the court was often bitter and quarrelsome, on the bench it was respectful.
After two days of arguments, the court reserved the verdict, possibly till early 2027. 11 judges, men and women with hundreds of years of shared experience in law and life, Decision will have to be given on two cases – one belonging to the National Assembly and the other to the National Council of Provinces – to decide whether the process of public input into the legislation was followed fairly.
Sadly, no matter what the court decides, it seems that controversy and possibly litigation will continue.
If the judge rules yes on both counts, then the act continuesBut more than 10 other court cases – currently stalled – are questioning the validity of certain sections of the Act, will kick in again. If not, an Act will have to be made Back to Parliament for deliberationsonce again.
But in some ways, whatever the court decides should be considered a victory: It will the result of a process of rational deliberationAnalyzing evidence, testing arguments against the facts, and weighing it all against a deep set of legal principles and precedents.
A process we can trust.
Constitution and right to health
This NHI is not the first time South African courts have been called upon to adjudicate literally life and death disputes about access to health services.
In fact, over the past three decades, our Constitution (the supreme law of South Africa) and the courts have played an important role in shaping health policy, protecting rights and holding the government accountable.
That history matters as we await the NHI decision.
Constitution of South Africa recognizes That health is important for dignity, equality and social justice.
A healthy democracy literally depends on the good physical and mental health of its population, as my colleagues and I pointed out in a 2007 book. Health and Democracy, a guide to human rights, health law and policy in post-apartheid South Africa.
The Constitution grants “everyone” the right of access to health services and imposes a duty on the state to use its resources, policies, and legislation to continuously improve access to care.
But rights on paper do not automatically become reality.
There is often controversy over health policy and health services. had access to health care under apartheid largely determined Based on race, white people are on top and black people are on the bottom.
When it came into force in 1996, the Constitution could not wave a magic wand to end all this. Although democracy has made huge strides, inequality in access to healthcare has worsened, with class now generally replacing race as the means of access.
As a result, activists, community organizations, and patients have repeatedly turned to the Constitution and, when necessary, the courts to pursue the right to health.
The case that changed everything
The most famous example remains treatment action campaigncase against Health Minister. In many ways this was a matter for both the TAC and the Constitutional Court.
At the time, the government refused to give the antiretroviral drug nevirapine to pregnant women with HIV, despite evidence that it could dramatically reduce transmission of HIV from mothers to their children.
constitutional court Government It is the duty of the government to provide medicines.
today it is The scale of resistance to HIV treatment was difficult to imagine at the time.
Yet the decision helped change the course of the epidemic in South Africa and laid the foundation for one of the world's largest HIV treatment programs.
It would not be an exaggeration to say that the decision was saved hundreds of thousands if not millionsOf life.
Such cases also showed South Africans something important: the Constitution could be used to improve people's lives in practical ways.
Former Constitutional Court judge Albie Sachs described the effect The verdict of July 2002 was:
“As soon as we judges came out, I heard loud cheers coming from the courtroom and found myself crying. It was not just the impact of the pandemic – it was the knowledge that I was part of an institution that was protecting the fundamental rights of all people in the country.”
more than hiv
The TAC case was not an isolated victory.
The courts have dealt with With controversies over protecting prisoners from diseases like TB dudley lee Case); giving women and girls the right to legal, safe abortion; Cancer treatment; It is the duty of the government to maintain transparency regarding recent purchases Terms and conditions for procurement of COVID-19 vaccines During the pandemic; and the right of the State to regulate the price and safety of markets in the public interest.
Court decisions on some important victories have never been reached.
For example, shortly after the TAC's victory in the Constitutional Court in 2002 started a complaint Against two multinational pharmaceutical companies, GlaxoSmithKline and Boehringer Ingelheim, arguing that the excessive pricing of their three patented antiretroviral drugs is an abuse of market dominance and a violation of the right to health.
After a Competition Commission investigation ruled in TAC's favour, the companies agreed to voluntary licensing, dramatically expanding access to affordable HIV drugs not only in South Africa but across Africa.
The Constitution was also at the center of a decade-long struggle for justice for the 144 victims Jeevan Esidimani tragedy in 2016.
Families of government mental health patients who died after being transferred from government-contracted private specialist psychiatric facilities to unsuitable non-governmental organizations depended on their constitutional rights to dignity, health care, and life.
His persistence led to arbitration proceedings and an award of constitutional damages; a criminal inquiry and finding criminal negligence Against the Gauteng MEC for Health; And, in April 2026, National Prosecuting Authorityannounced that they intended to press charges of involuntary manslaughter against as-yet-unnamed officers.
Recently, constitutional rights have been used Protecting migrants' access to health care In the face of increasing xenophobic attacks and efforts to bar people from clinics and hospitals.
Why does this matter for NHI?
The NHI case is different from many health cases that have come before it.
The Constitutional Court is not being asked how healthcare should be provided. Rather, it is being asked whether Parliament followed the Constitution while passing the law.
But the principle is the same.
That process is not quick. Nor does it always produce results that everyone likes.
Yet South Africa's experience over the past 30 years shows that courts have often strengthened health policy, improved accountability and opposed people's rights.
The decision of NHI will emerge from the same tradition.
a reason for confidence
South Africa faces huge challenges in healthcare. No matter what the Constitutional Court decides, the road to universal health coverage will not be easy.
But considering the matter now, there is reason to trust the institution.
Judges are not taking decisions based on political slogans or social media campaigns. They're working through evidence, legal principles and decades of precedent built through past health-rights disputes.
A shield for rationality in an age of faltering government and populism.
South Africa's path to universal health coverage, the underlying objective of the NHI, will ultimately be stronger and possibly more sustainable due to its passage through the country's Supreme Court.
The challenge then will be for humans to overcome the mistrust and conflicts that have led to court cases, take instructions and soul Find ways to work together in the best interests of the court, and the right to health.
Mark Heywood is a health, human rights and social justice activist. He was one of the founders of treatment action campaign In 1998 and co-founder of the Public Interest Law Center, Section 27. He remains active in advocating for the right of all to have access to healthcare.