The lay of the law on National Health Insurance

Court challenges to both the procedure by which the National Health Insurance (NHI) Act was passed into law and the substance of the Act could take as long as 10 to 15 years to resolve, a lawyer currently involved in two of the cases told a recent medical scheme conference.

However, the key to future litigation currently lies in a Constitutional Court judgement that is expected to determine the constitutionality of the legislative process which resulted in the NHI Act being passed, the recent Board of Healthcare Funders (BHF) conference held in Cape Town, heard.

The cases were heard in May and there is no indication of when the judgement/s will be handed down as the court will deliver them when it is ready, Neil Kirby, director and head of healthcare and life sciences at Werksmans Attorneys, told the conference.

Werksmans is acting for the BHF in its NHI challenges, two of which are before the Constitutional Court. The BHF’s members include a number of medical schemes whose existence is threatened by provisions in the NHI Act.

Cases challenging how the Act was passed

Cases challenging the process by which an Act was passed into law need to be heard by the Constitutional Court, while challenges to the Act itself and its clauses need to be heard by the High Court even if the challenge to the Act is based on constitutional grounds, Kirby explained.

The two cases challenging the way the Act was passed that the Constitutional Court is currently deliberating include:

• The BHF case

The BHF applied to the Constitutional Court to declare the Act unconstitutional on the basis that it was passed into law after a deficient public participation process, Kirby said.

The BHF spent 18 months analysing the lengthy public participation process and the issues raised, and how this process failed to result in any material change to what was finally passed as the law, Kirby said. It gave the court 2000 pages of its findings.

• The Western Cape Premier’s case

The BHF’s challenge in the Constitutional Court was heard at the same time as a challenge from the Western Cape government premier, Alan Winde. The premier’s application argues that National Council of Provinces (NCOP) voted on the NHI Act before engaging with Western Cape government’s report.

The application also argues that the NCOP did not consider the Gauteng Government’s report and rushed its hearings on the NHI bill and ignored the Western Cape Government’s requests for reasonable extensions.

What could happen next?

When the court delivers its judgements, it may:

• Agree with the BHF that public participation was deficient, strike down the NHI Act as unconstitutional and send it back to parliament, Kirby said.
  
  
• Disagree with the BHF’s arguments but agree with the premier’s argument that the NCOP process was deficient. In this case, the Act could be referred back to the NCOP, he said.
  
  
• Disagree with both the BHF and the premier, that the process the Act followed was unconstitutional, and then any pending cases that are being held in abeyance, while these two cases are heard, will resume in the Pretoria High Court.

The High Court cases

The cases before the High Court also challenge the NHI Act on the grounds that its provisions are a contravention of the Constitution.

In February 2026, the Minister of Health and the Department of Health and seven of the organisations challenging the NHI Act came to an agreement that the minister would not implement any provisions of the NHI Act and the parties would not continue their litigation until judgment is handed down in the Constitutional Court. This agreement was made an order of the court.

Depending on how the Constitutional Court rules on the cases challenging how the NHI Act become law, these cases could be abandoned or adapted, or continue. They include:

The BHF and SAPPF v the President
In a legal first, the BHF brought an application in the High Court in 2024 challenging President Cyril Ramophosa’s decision to sign the NHI Act into law and whether he applied his mind to the serious constitutional issues that had been raised with him.

The BHF asked for a record of the president’s considerations to see if he disagreed with the submissions made to him or ignored them, as, if he had any reservations, he should have referred the Bill back to Parliament.

The South African Private Practitioners Forum (SAPPF) launched a similar application as its case was joined with the BHF’s case.

The president’s legal team responded that the High Court could not review the president’s decision and the case should be heard by the Constitutional Court.

The High Court ruled in May 2025 that it did have the power to review the president’s actions and ordered him to produce the record of his decision.

Stay of proceedings

The president and Minister of Health then appealed the High Court decision to the Constitutional Court. Their legal team also applied for the consolidation of all the High Court matters and a stay of the proceedings until the Constitutional Court resolved the President’s appeal.

This was contested by Sakeliga and the Health Funders Association (HFA) who have their own challenges on the constitutionality of the Act before the High Court.

In February 2026 the consolidation application was put on hold when the parties agreed to await the outcome of the Constitutional Court cases brought by the BHF and the premier of the Western Cape on the procedure that led to the NHI Act.

The health minister agreed not to ask the President to proclaim any parts of the NHI Act to be in force until the Constitutional Court decides on the procedural matters. The litigating organisations agreed to stay their applications until the Constitutional Court judgement/s is/are delivered.

The other cases

The six other cases before the Pretoria High Court that may or may not proceed include:

• A Hospital Association of South Africa (HASA) application arguing that the Act is unconstitutional and invalid and should be set aside. Alternatively, it is arguing that certain sections of the Act are unconstitutional and should be declared invalid.
  
  
• A South African Medical Association (SAMA) application arguing that a number of clauses in the NHI Act are unconstitutional. The doctors’ organisation is challenging clauses of the Act that deal with the exclusions of foreigners from NHI, compulsory registration of users, changes to the organisation and funding of the public health system, benefits, contracts and accreditation of providers, pricing of health services and reimbursement of providers, powers and functions afforded to the Health Minister, medical schemes and private insurance, and compliance and amendments to other Acts.
  
  
• A Health Funders Association (HFA) application arguing that the NHI Act is irrational for failing to consider the costs and impact on existing healthcare providers and is incapable of providing the same level of services to current medical scheme members. The organisation that represents medical schemes also argues the NHI Act is an unreasonable and unjustifiable infringement of the rights of medical scheme beneficiaries to health care and contravenes the state’s obligation to progressively realise access to health care for all within available resources. Lastly, it argues that the sweeping and unchecked powers conferred on the Health Minister are unconstitutional.
  
  
• A Sakeliga application arguing that the NHI Act’s provisions are not rationally connected to the purpose of the Act, and it is therefore irrational and unconstitutional. This organisation that represents businesses also argues that the Act is unconstitutional as it fails to provide reasonable economic and governance measures within the government’s means to progressively provide access to health care. Finally, it argues that the Act is inconsistent with a number of sections of the Constitution.
  
  
• A Solidarity Trade Union application arguing that there is no funding model for NHI and the Act’s vagueness is unconstitutional. The union also argues there is no connection between the NHI scheme proposed and what it aims to achieve as it is not feasible or sustainable. The extensive powers given to the minister and the Act’s failure to promote efficient, economic and effective use of government resources are unconstitutional. In addition, Solidarity argues provisions of the act infringe the right to human dignity, life, freedom and security and freedom of trade, occupation and profession as well as labour and property rights.
  
  
• An AfriForum application arguing that the NHI Act contravenes the constitution by centralizing health care in contravention of provincial powers, restricts patient and provider freedoms, is irrational and not feasible, does not comply with international obligations, and is vague.

Fixing healthcare

Kirby said the legal challenges are often dismissed as being about protecting the profits of private healthcare providers rather than being about constitutional rights.

The legal challenges had to happen because as laudable as the principles of universal healthcare are, they cannot take precedence over the Constitution and the government cannot dismantle the private health sector because it can’t assure those who rely on private healthcare that they will have access to the same level of care through an NHI fund, he said.

Many speakers at the BHF conference called for the medical scheme and private healthcare industry to do what it could to address South Africa’s healthcare problems rather than wait for the legal challenges to be resolved. Read more: Call to stop healthcare funding’s 'race to the bottom'