Written by Franny Rabkin (Originally published in the Sunday Times on 17 August 2025)
The health ministry has applied to consolidate five separate cases challenging the NHI Act and to put them on hold — pending litigation in the ConCourt.
The health ministry has proposed a “pragmatic solution” to the myriad court cases challenging the National Health Insurance (NHI) Act, but doctors’ and medical aid organisations this week called it an attempt to stall their litigation.
There are five separate legal challenges to the NHI Act pending in the High Court. There is also litigation pending at the Constitutional Court. There are also “interlocutory” applications — applications made during the bigger cases. “Taken together, there are 17 different substantive applications in respect of the NHI Bill and/or NHI Act that include eight in the Constitutional Court [and] nine in the high court,” said principal state law adviser Geofrey Mphaphuli, on behalf of the president, in court papers this week.
Mphaphuli said the NHI Act, signed into law by President Cyril Ramaphosa on May 15 last year, was “an ambitious and critical attempt to address the structural inequities in South Africa’s health-care system”.
The health minister’s court papers added that the act had been passed after two decades of policy development, consultation and research and was “informed by international best practice”.
But even before it was passed, the act was fiercely resisted by organisations in the health-care sector, who argued it was unconstitutional in numerous respects. It would not achieve its stated aims and would instead take South Africa backwards in delivering better health care for all, they said.
In what they describe as a “bona fide pragmatic solution”, health minister Aaron Motsoaledi and his deputy director-general responsible for the NHI, Nicholas Crisp, have applied to the Pretoria high court to consolidate all the high court litigation into a single case and put it on hold — “stay” it — until the litigation before the Constitutional Court has been decided.
In the meantime, the minister had undertaken not to promulgate those regulations that would say the NHI has been fully implemented, said Crisp.
Crisp said the high court cases were applications of “unprecedented volume, factual density and constitutional complexity”. To defend them all separately, and all at the same time, would involve “extensive financial, time and human resources”. Yet it may “ultimately prove entirely unnecessary” — because the ConCourt may short-circuit everything.
This is because one of the questions the ConCourt has been asked to decide is whether the president acted rationally when he signed the act into law. The Board of Healthcare Funders of Southern Africa and the South African Private Practitioners Forum (SAPPF) argue that Ramaphosa ought to have sent the bill back to parliament. If the ConCourt agrees with this view, the NHI Act would become a bill again and all the challenges to its constitutionality would be “moot”, or academic, said Crisp
Organisations opposing the NHI Act said in court papers this week they would only agree to a stay if the government gave an undertaking to put the implementation of the act on hold entirely. The undertaking given by the minister was not good enough. It related only to the last step in the implementation of the act, they said. By that time, earlier phases of implementation would have happened, incurring huge costs and breaching constitutional rights.
“There can be no ‘stays’ while the executive pushes on with implementation,” said the Hospital Association of South Africa (Hasa), which represents about 75% of private hospital beds in the country.
The SAPPF said the stay was premised on “speculative, indefinite and remote events”. Moot high court cases were just one possible outcome of the ConCourt proceedings; there were several others. For example, the ConCourt could find it did not have exclusive jurisdiction and direct the whole debate back to the high court.
Meanwhile, the high court litigation would have stalled and there was “just no telling how long Hasa is expected to wait”, said its CEO, Dumisani Bomela. Hasa was not a party to the ConCourt litigation, had no control over it and had a right to have its case adjudicated, he said. Yet, if there was a stay, it could be years before it got underway.
In the meantime, the stay would “in effect, clear the path for implementation [of the NHI Act],” said the SAPPF’s Simon Strachan. He said constitutional harm was “already occurring”.
The NHI Act was already having a “profound and detrimental impact on constitutional rights — particularly the rights of health-care professionals and those seeking to enter the profession”.
One of these was that the NHI Act did not provide for specialist services, he said. Specialists were currently “in limbo” about “how — or even if — they will be a part of NHI because the NHI Act adopts a hospital-centric view … with no accommodation for or recognition of specialists in either the private or public sector”.
The country already faced a “brain drain” of doctors, and a survey of its members indicated that the NHI Act was a “major push factor” towards emigration, he said. This “exodus” and decline in future practitioners poses an immediate and long-term threat to the quality and availability of health care in South Africa,” said Strachan.
Part of Hasa’s case is that the NHI Act is not financially feasible. “The government has enacted and will commence implementing legislation without knowing how much it will cost,” said Bomela. The harm, “certainly on a financial level, is thus immediate. The minister’s undertaking does not address these harms”.
Solidarity said money had already been spent to implement the NHI. The stay would “allow the state to spend vast amounts of money on the creation of yet more bureaucratic structures when public health-care facilities are in a dire state,” said Solidarity’s Anton van der Bijl. “All this while challenges to the constitutionality of the statute remain in limbo. This is simply reckless,” he said.
Strachan said: “If the minister and the president were so certain of the lawfulness of their conduct and the constitutionality of the NHI Act, then they would encourage the expeditious resolution of the challenges, confident that they would be vindicated by the courts.”
Crisp said a stay would prevent parallel litigation in the high court and the ConCourt and the “risk [of] divergent judgments … being handed down simultaneously on the question of the constitutionality of the same act”. But Strachan said there was no risk of divergent judgments because the questions before the High Court and the ConCourt were entirely different. The ConCourt litigation concerned the president’s conduct — its lawfulness and its rationality. The high court litigation concerned the NHI Act and its provisions. They were“fundamentally different legal enquiries”.
