IN SHORT: South Africa’s Constitutional Court began hearing the first legal challenge to the National Health Insurance Act on May 5, with proceedings running through May 7. The case is brought by the Board of Healthcare Funders, representing 65 medical schemes covering 4.5 million beneficiaries, and the Western Cape government. Their argument is not that universal healthcare is wrong but that Parliament failed its constitutional duty to conduct meaningful public participation before passing the law. Constitutional Court justices themselves raised sharp concerns about corruption and financial mismanagement risks in the public health system.
South Africa’s National Health Insurance Act is facing its most consequential legal test in a three-day Constitutional Court hearing that could invalidate the legislation on procedural grounds before a single clinic or hospital has been reorganised under the new system, with the court’s own justices probing whether a government with a R2 billion hospital corruption problem should be trusted to run a single national health fund.
The hearing opened on May 5 at Constitutional Hill in Braamfontein, Johannesburg. President Ramaphosa had agreed in February to delay the proclamation of any sections of the NHI Act until the court delivers its judgments, effectively placing the legislation on ice.
- The case is brought by the Board of Healthcare Funders, a nonprofit body representing 65 medical aid schemes and their 4.5 million beneficiaries, jointly with the Western Cape provincial government. The BHF explicitly stated it is not challenging the principle of universal healthcare. Its case is narrower and procedural: Parliament received over 350,000 written submissions during the legislative process, and the BHF alleges that MPs did not properly engage with those submissions, concentrating instead on the Department of Health’s own position rather than genuinely processing the concerns of the public and stakeholders.
- Advocate Bruce Leech SC, representing the BHF, told the court: “The right to speak and to be listened to is part of the right to be a citizen. This is a case about constitutional rights and dignity and the right to be heard.” He argued that the public participation process had not been “meaningful” in the constitutionally required sense and that Parliament had demonstrated no intention of genuinely listening to submissions that challenged the Department’s line.
- The government’s response, delivered by Advocate Kameshni Pillay representing Health Minister Aaron Motsoaledi, urged the court to consider the broader objective of universal health coverage rather than focusing on procedural technicalities. Pillay argued that the NHI’s costs are “decades away” from full implementation and that the public was adequately informed of the general transformational nature of the legislation. Motsoaledi separately dismissed funding concerns as “baseless and overblown,” noting that South Africa already spends approximately 8.5% of GDP on healthcare, above WHO recommendations, but that more than half of that spending benefits just 14% of the population with medical aid.
- The court’s most striking intervention came from Justice Steven Majiedt, who challenged the government on the risk of deploying a single national fund through a system with a documented corruption and mismanagement record. “When you consider this Bill against inefficiencies you read about, not just in the media but in court papers, and also about the corruption where at one hospital R2 billion is spillage…” Majiedt’s unfinished sentence captured the concern that has driven the private sector’s opposition to the NHI: not that universal healthcare is wrong, but that the same state institutions whose track record in managing public hospitals is deeply troubled would be placed in charge of the entire country’s healthcare budget.
- The NHI Act, signed by Ramaphosa in May 2024, aims to establish a single state-managed fund that pools all healthcare funding and purchases services from both public and private providers. It was introduced in 2019, passed Parliament after years of debate, and has been challenged by multiple organisations including the Health Funders Association, the Medical Association, the Private Practitioners Forum and the Hospital Association, in addition to the BHF and Western Cape government whose case is currently before the court.
- COSATU and affiliated unions staged a picket outside Constitutional Hill in support of the NHI, with spokesperson Zanele Sabela describing it as “the only path to achieving equitable universal health coverage, putting an end to the two unequal systems currently in place, which are remnants of apartheid.”
No judgment was expected during the three-day hearing. The court will deliberate and deliver its ruling at a later date, which legal analysts say could take between three and twelve months given the constitutional complexity of the issues.
The Bigger Picture: The NHI ConCourt hearing is about far more than procedural compliance. The justices’ questions about corruption and mismanagement go to the heart of the most difficult problem in South African public policy: the state’s demonstrated inability to manage large public institutions without catastrophic leakage. South Africa’s public hospitals suffer from pharmaceutical theft, equipment failure, nurse shortages and financial mismanagement that have produced some of the worst patient outcomes in a middle-income country. Motsoaledi is right that the distribution of healthcare spending is grotesquely unequal. The BHF is right that Parliament did not genuinely listen. Both things are true. The NHI’s fate will ultimately turn not on whether universal health coverage is desirable, it is, but on whether the institution being created to deliver it can be trusted with the money. The ConCourt hearing has made that question impossible to avoid.
Source: Daily Maverick / EWN / The Citizen, May 5, 2026
