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Mail & Guardian
19-05-2025
- Politics
- Mail & Guardian
Ramaphosa says decision to sign NHI Bill was politically sensitive
President Cyril Ramaphosa President Cyril Ramaphosa has argued in papers filed to the Pretoria high court that its ruling compelling him to submit his record of decision on assenting to the He is appealing the court's order to hand over the record to the supreme court of appeal (SCA) but indicated that he would also appeal directly to the constitutional court by 27 May. Should the apex court grant him direct access, the president said he would not persist in his application to the SCA. Ramaphosa argued that the high court made grave errors in law when, in a ruling handed down on 6 May in favour of the Board of Healthcare Funders (BHF), it held that his decision was reviewable and ordered him to hand over the record within 10 calendar days. He advanced 10 grounds of review, including that the court lacked jurisdiction in the matter and erred in finding that his decision to sign the NHI Bill into law was reviewable. Because BHF alleged a failure by the president to fulfil his constitutional duty, Ramaphosa submitted, only the apex court could hear the matter because it alone has the power to determine whether that is so in terms of section 167(4)(e) of the Constitution. His counsel had argued before the high court that the obligation imposed on the president in section 79 of the Constitution to assent to legislation was assigned only to himself, or an acting president in the case of his absence. Therefore any breach of this obligation triggered the exclusive jurisdiction of the constitutional court. They further argued that when deciding whether to assent to a law, the president was exercising a subjective discretion bestowed on him by section 79 of the Constitution. It was up to him to decide how he went about reaching his decision and an attempt to review this decision in court had significant implications for the separation of powers. Allowing a high court review would also mean that any person who was unhappy with his decision to sign a Bill into law and had enough money to launch litigation could embark on a courtroom 'fishing expedition' to find a flaw in his reasoning. In this instance, the president's lawyers argued, the BHF could not point to any reviewable lapse in the process he had followed, yet was trying to halt a legislative process designed to meet the healthcare needs of the whole country. The BHF, which represents most private medical schemes in South Africa, had argued that Ramaphosa flouted his constitutional duty by failing to scrutinise the constitutionality of the NHI Bill. It said he acted irrationally when he The court found no merit in the president's argument on the separation of powers, and said the step of assenting to a Bill was but part of a lawmaking process that was a reviewable exercise in public power. 'The issue is whether the president has properly applied his mind as required by section 79 of the Constitution when he assented to and signed the NHI Bill after receiving all the objections to the constitutionality of the Bill from the stakeholders including his own legal advisers,' the court said. 'This cannot be said to be intruding into the domain of the principal legislative and executive organs of state which would bring the matter into the remit of the exclusive jurisdiction of the constitutional court.' It held that a legislative process implies a shared obligation on the National Assembly, the National Council of Provinces and that hence, the case fell within the jurisdiction of the high court. As to whether Ramaphosa's decision was reviewable, the court said he exercised the power to sign Bills as a central part to a legislative process. And since all public power must be exercised within the bounds of legality, and this particular one within the constraints of section 79(1) of the Constitution, it was subject to legal review. Ramaphosa challenged this in the application for leave to appeal filed last week. 'The court reasoned that the president's obligations are not agent-specific and do not engage the exclusive jurisdiction of the constitutional court,' he submitted. 'Respectfully, the court ought to have found the opposite.' The court was inconsistent, because on the one hand it said the case revolved around his duty, in terms of section 79, to scrutinise the constitutionality of the Bill, yet on the other that the 'conduct which is challenged by the applicants in this case does not fall in the category of the president's failures in fulfilling his constitutional obligations'. Both could not be true at the same time. Nor could the court rightly find that assenting to a law was not 'agent-specific' when only the president had the power to do so. Furthermore, Ramaphosa submitted, the separation of powers was implicated because the function he performed in signing a Bill into law was not a legislative one. 'If it were, that would constitute a demonstrable incursion into the terrain of the legislature and breach the separation of powers.' Ramaphosa argued that assenting to legislation was a politically sensitive matter, where it was left to the president to determine which considerations he had to bear in mind when fulfilling a particular obligation. It meant 'sensitive' not in a party political sense but in the context of separation of powers in that a court had to exercise 'extreme caution in determining whether it is capable of second-guessing or assessing' his decision. The high court had ignored a warning from the apex court, through case law, that in such matters, 'which are by their very nature politically sensitive matters', only it had jurisdiction. The president signed the Bill into law a fortnight before last year's general elections. Critics of the decision have said it was a populist move at a moment when it was clear to the ANC that it risked losing its majority. The legislation has remained one of the main
Eyewitness News
17-05-2025
- Health
- Eyewitness News
Ramaphosa eyes direct appeal to ConCourt over NHI Act challenge
CAPE TOWN - President Cyril Ramaphosa is seeking to appeal directly to the Constitutional Court after a high court found that his decision to sign the National Health Insurance (NHI) Act into law could be reviewed. Ramaphosa on Friday filed notice to appeal the Pretoria High Court's earlier decision that also gave him ten days to provide the record of his decision to sign into law the highly contentious NHI Act in 2024. Ramaphosa's decision was challenged by the Board of Healthcare Funders (BHF), which contends that the legislation is "vague, unaffordable, and ultimately unworkable". ALSO READ: - BHF confident it will be able to prove the NHI Act is unconstitutional - NHI Act: BHF expecting Ramaphosa to ignore Friday's deadline to comply with court order - Board of Healthcare Funders set to file two more legal challenges to NHI Act In court papers, Ramaphosa pointed to inconsistencies in the court's decision and how the president could exercise his powers. Ramaphosa also said that the role played by the president in assenting to and signing a bill was not that of legislating. "If it were, that would constitute a demonstrable incursion into the terrain of the legislature and breach the separation of powers," argued Ramaphosa. Ramaphosa listed several grounds for leave to appeal, including how the court erred in failing to take into account the discretion enjoyed by the president. Ramaphosa said by permitting this kind of review, the court had potentially allowed a "pre-enactment challenge to a bill, which is a severe threat to the legislative authority of Parliament," which he said the Constitution had already warned against. He said that previous court decisions had found that the president and the president alone assented and signed bills into law.
Eyewitness News
15-05-2025
- Health
- Eyewitness News
NHI Act: BHF expecting Ramaphosa to ignore Friday's deadline to comply with court order
CAPE TOWN - The Board of Healthcare Funders (BHF) says it expects the president will ignore Friday's deadline to comply with a court order to provide the record of decision that led to him signing the National Health Insurance bill into law. Instead, it expects he and the health minister will file for leave to appeal last week's judgment of the North Gauteng High Court that it has the jurisdiction to review his decision-making. On Thursday, the BHF, which represents private medical aid schemes, announced it will be launching two more court cases against the constitutionality of the National Health Insurance (NHI) Act and the public participation process that preceded it. Last week, the high court found that Ramaphosa's decision to assent to and sign the NHI Act into law is reviewable. READ: Board of Healthcare Funders set to file two more legal challenges to NHI Act It gave him 10 calendar days to furnish the court with the record of his decision. The BHF expects this record could bolster its subsequent cases challenging the public participation process that led to the passing of the bill, and even after, when the sector petitioned the president to consider their concerns and objections. But on the final day of its annual conference in Cape Town on Wednesday, BHF lawyer Helen Michael was doubtful the judgment would be adhered to. "If we are all being frank, I would probably say that's unlikely. The problem the president does face if he fails to file the record is that he opens himself up to a contempt of court application." The South African Private Practitioners Forum and the South African Medical Association have also launched their bids against what they believe is the unconstitutionality of the NHI Act.
Eyewitness News
14-05-2025
- Health
- Eyewitness News
BHF confident it will be able to prove the NHI Act is unconstitutional
CAPE TOWN - The Board of Healthcare Funders (BHF), which represents private medical aid schemes, appears confident that it will be able to prove that the National Health Insurance Act is unconstitutional. Although it does not expect the president to comply with last week's high court ruling to provide the record of his decision to sign the bill into law, it said that this judgment was a critical first step in bolstering its next legal steps against the act. At the closing session of its annual conference in Cape Town on Wednesday, the BHF's legal team announced its plans to add two more NHI cases to the growing list, based on constitutionality and public participation. The BHF is one of at least three healthcare bodies that have launched legal cases against the National Health Insurance Act. BHF lawyer, Neil Kirby, said by denying citizens the choice of how and where they sourced medical services would not meet constitutional muster. "There's no way the current structuring of the NHI Act, both in terms of what it proposes in relation to the functioning of the fund, the fund itself, and the role the private sector plays within that context, will ever match what is required in terms of the Constitution." The preparatory work for introducing the bill was more than a decade in the making, before spending five years in the parliamentary pipeline. But the SA Private Practitioners' Forum lawyer, Glenn Penfold, said the act remained vague on too many aspects of health services and delivery. "We effectively have an act of Parliament, that I think not even the drafters know what that act will actually look like in practice." The SA Medical Association, meanwhile, has cited reduced access to primary healthcare and the stripping away of provincial healthcare powers among its concerns.
Eyewitness News
14-05-2025
- Health
- Eyewitness News
Board of Healthcare Funders set to file two more legal challenges to NHI Act
CAPE TOWN - The Board of Healthcare Funders (BHF) announced on Wednesday that it's mounting two more legal challenges against the National Health Insurance Act. It follows last week's successful judgment in the Gauteng High Court that the president provide it with his record of decision that led to him signing the bill into law a year ago. Speaking at its annual conference in Cape Town, lawyers representing the board said the new cases would target the public participation process leading up to the bill being passed by parliament, and the constitutional right to health care. Buoyed by last week's court ruling that found the high court did have jurisdiction to review the president's decision to sign the NHI Act into law despite public reservations and submissions to him, the BHF said it's preparing to make its next legal moves. BHF lawyer Helen Michael said the first of the cases, which would be filed imminently, directly with the Constitutional Court, would argue that public input was not properly considered. ALSO READ: BHF, SAPPF given green light to challenge NHI Act "The case being that the public hearings that were held by government and which were intended to facilitate some kind of comment on the NHI Bill, were in fact and meaningless and flawed." The BHF, which represents scores of medical aid schemes, says both its new applications will be backed up by expert reports. "The BHF's [other] challenge to the NHI Act is on the basis that various provisions of the act are in fact unconstitutional." The president has been given until Friday to submit his record of decision to the high court, which the BHF hopes will bolster its new court challenges.
