Minister of Health Joe Phaahla says that a recent High Court ruling declaring parts of the National Health Act unconstitutional won’t stop the government’s plans to roll out the National Health Insurance (NHI) scheme.

In June 2022, the High Court found that sections 36 to 40 of the NHA were unconstitutional. The sections refer to the Act’s provisions for issuing health establishments with a “certificate of need”.

According to the controversial laws, doctors and health practitioners cannot start a practice or provide health services without a certificate. Health professionals have long argued that the provision violates fundamental rights, as it gives the state power to stop them from working.

Meanwhile, the government argues that the certification scheme is necessary to ensure that vulnerable communities get access to health services by making work in such areas a condition of obtaining a certificate.

After the health department and other government officials listed as respondents in the case failed to participate in proceedings, the High Court ruled in favour of the applicants. The department is now appealing the ruling and wants to take the matter to the Constitutional Court.

In a written parliamentary Q&A this past week, Phaahla said that the department will not wait for a legal outcome and will continue laying the groundwork for the health scheme.

“The ruling made by the High Court…confines itself to declaring provisions of the National Health Act in Sections 36 to 40 not compliant with Section 172(1) of the Constitution. The ruling has not made any reference or ruling on other Sections outside of Sections 36 to 40 of the National Health Act.

“Neither has the High Court of South Africa, Gauteng Division made any ruling on the 2017 NHI Policy or activities related to the preparatory work towards the establishment of NHI,” he said.

The minister said that the establishment of the NHI is informed by the 2017 White Paper on National Health Insurance 2003, which was approved by Cabinet in June 2017.

“The White Paper on NHI recommended a phased approach towards the establishment of NHI. The first two phases of NHI implementation entail health system strengthening initiatives in readiness for the full establishment of NHI at the end of the third phase.”

Phase two entails the finalisation of the legislative process for the establishment of the NHI Fund through the enactment of the National Health Insurance Act.

He said that the NHI Bill is currently being deliberated in Parliament, and the department has no authority over the legislative processes in Parliament.

The government’s pursuit of the NHI continues despite criticism from the private health sector, medical aids, and warnings from Treasury and the department of health itself.

Private healthcare groups believe that the scheme is unsustainable and unmanageable, given the scale of what the government wants to achieve against the backdrop of how it has already failed in the public healthcare space.

There are also concerns over an exodus of healthcare professionals who refuse to be subject to the scheme’s harsh conditions, as evidenced by the court ruling the department is appealing.

Medical aids have been fighting for their continued existence, given that the NHI scheme envisions a healthcare system with the state entirely in control and little to no room for private healthcare funding.

Treasury’s warnings come from a financing standpoint – there is simply no money to feed into the scheme without raising taxes.

Finally, the Department of Health has raised red flags over the scheme’s administration, conceding that it is vulnerable to maladministration and mismanagement.

Read: Stop trying to make the NHI happen – fix what we’ve got: expert