Court will hear NHI complaints, ‘but could take a little while’

“A general concern that stretches across the entire proceedings so far, particularly in the private sector,” public and private health sector legal expert, Dr Debbie Pearmain, told  IHRM Webinar delegates on Friday, “is that many private healthcare stakeholders feel that their voices have gone unheard. I’ve heard many stakeholders say that the Parliamentary Portfolio Committee on Health, in fact, adopted a very dismissive attitude towards their representations on the Bill.”

Reminding her audience that the Bill still has to go through the National Council of Provinces (NCOP), she indicated that it was still unclear what procedures the NCOP would adopt if it would honour participating democracy: “But they are obliged to allow stakeholders in the provinces to have their say as well.”

Many stakeholders clearly don’t support the NHI Bill in its current form, most saying that it lacks clarity and have questioned its constitutionality. A number of legal challenges, Pearmain acknowledged, were therefore likely, “but these could take a little while” as they could only be instituted “after the President has assented”.

In the first instance, as already mentioned, the Bill still has to go through the NCOP – but should the council propose amendments, it would have to go back to the National Assembly for approval.

“The President can also refer the Bill back to Parliament if he doubts its constitutionality, or refer it to the Constitutional Court to determine its constitutionality,” Pearmain explained, making the point that only the Constitutional Court has the jurisdiction to determine whether Parliament has fulfilled a constitutional obligation.

Referring particularly to the 2006 case of Doctors for Life International vs The Speaker of the National Assembly, she was able to confirm that complaints relating to the failure by Parliament to facilitate public involvement in its legislative process after Parliament has passed the Bill, would be heard by a court to consider the validity of the resulting bill: “Therefore, once the legislative process is complete, the public and interested groups may challenge the resulting statute.”

If the court finds that Parliament has not fulfilled its obligation in this regard, Pearmain noted, it will be obliged “under 172(1)(a) to declare that the conduct of Parliament is inconsistent with the Constitution and therefore invalid”.

Concluding the point, Pearmain said that many regulations were still needed to “flesh out the Bill” and these in turn would increase the likelihood of legal challenges.

In terms of the National Health Insurance Act itself, this, she said, could only come into operation after the NHI “Money Bill” from Treasury has been finalised: “And this also has to go through parliament….”