DA questions constitutionality of the NHI Bill

The DA wants an urgent answer on whether the National Health Insurance (NHI) Bill passes constitutional muster.

DA leader Mmusi Maimane, flanked by spokesperson on health Siviwe Gwarube, announced on Tuesday he had written to National Assembly Speaker Thandi Modise to urgently request that she instructs the parliamentary legal services to obtain a legal opinion on the bill before it appeared before the portfolio committee on health.

He has also asked the DA’s legal team for an opinion on whether the bill is constitutional.

The party is questioning the bill’s constitutionality as it seemingly takes away provinces’ constitutionally enshrined right to handle health services.

“It appears the NHI Bill proposes a system that provinces will not be able to opt out of. ‘Health services’, as defined, will be bought and determined at national level, with the minister of health effectively becoming the single authority over the health sector in the country,” Maimane said.

“On face value, it appears the bill actively seeks to curtail this constitutionally granted shared power between the national and provincial spheres of government, and we believe that the bill and the system that it proposes is overly intrusive on the constitutionally enshrined rights of provincial legislatures to also legislate on matters relating to health care.”

Schedule 4, Part A of the Constitution sets out the functional areas of concurrent national and provincial legislative competence – the government functions where decision-making is split between national and provincial governments. Health is one of these concurrent functions.

Maimane said Parliament should probe this possible constitutional breach by obtaining a legal opinion.

“We shouldn’t be spending money on something that doesn’t pass constitutional muster,” he added.

“If it ends up in the Constitutional Court, as MPs we need to prove we’ve exhausted all measures,” Gwarube said.

“I’m willing to go to whichever court in the land to fight this matter,” Maimane said.

He emphasised the DA supported universal health care, as Gwarube did on many recent occasions, but that it was strongly opposed to the NHI.

Gwarube said the party had studied the NHI Bill extensively and found several problems with it, adding the DA had done a comprehensive analysis of the bill and highlighted the aspects of it that were catastrophic, not just for the health system but for the economy at large.

“Should this bill be passed in its current form, all South Africans will be the main causalities of this system. There are deep inequalities in the system. Eighty-four percent of South Africans are dependent on an ailing health system, while only 16% of our people can afford private medical care,” she said.

“The broader inequalities of insiders and outsiders in this country play themselves out painfully within the health system. In line with global trends, South Africa must move toward universal health care – however not in the form of the NHI.

“The greatest tragedy of this bill is that it will not in any way achieve universal health care for South Africa. Instead, it is bound to destroy the health system as we know it by fragmenting it, eroding provincial powers, centralising and nationalising health care, and establishing a multibillion-rand SOE that will be in the hands of the politically connected few,” Gwarube said.

The DA opposes the following aspects of the draft bill: The establishment of the National Health Insurance Fund as a public entity or state-owned enterprise; The nationalisation of health care and clear erosion of provincial powers; Fragmentation of the health system; The additional tax burden that will be imposed on South Africans; The complete removal of choice for South Africans.

The DA has an alternative plan for universal health care, which it calls Sizani. It will allocate a universal subsidy for every eligible person in South Africa, irrespective of whether or not they are covered by the public or private health systems. It will not require a tax increase.

Maimane called on all South Africans to take part in the public participation process for the bill.

Also on Tuesday, the FF Plus said in a statement the NHI was already hurting the economy.

Its spokesperson on health, Philip van Staden, referenced a drop in medical aid scheme Discovery’s share price.

“With the current unemployment figure of 29%, there is a concern that the NHI can inhibit the work of the 80 registered medical schemes in the country, which will make the unemployment figure even higher as medical aids will have to cut funds and staff,” Van Staden said.

“Furthermore, many specialised medical staff will also leave the country, which will have a further negative effect on the economy.”

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