NHI Bill is constitutional, state law advisers tell parliament

The National Health Insurance (NHI) Bill is constitutional, state law advisers told the portfolio committee on health on Thursday.

Acting chief state law adviser Ayesha Johaar said the bill had been certified as “constitutionally aligned” last month.

Johaar added Section 27 of the Constitution obliged the state to take reasonable measures to give effect to the right to healthcare, adding South Africa was party to international agreements with which the republic must comply.

She said the goal of the NHI was to further comply with section 27 and international agreements.

Johaar added the bill’s provisions connected rationally with constitutional obligations.

After Health Minister Zweli Mkhize introduced the bill to parliament last month, the DA questioned its constitutionality.

DA leader Mmusi Maimane wrote to National Assembly Speaker Thandi Modise to urgently request that she instruct parliamentary legal services to obtain a legal opinion on the bill before it appeared before the portfolio committee on health.

Maimane also asked the DA’s legal team for an opinion on whether it was constitutional.

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

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.

Johaar told the committee the bill does indeed apply to schedule 4, as it dealt with health services.

She said national legislation would prevail over provincial legislation. The legislative instrument to determine national policy is the National Health Act and every health MEC must implement the national health policy.

Provinces may enact provincial laws in compliance with the act. The NHI Bill does not affect that.

“We are satisfied that the bill does not infringe on any of the universal rights in the Bill of Rights,” Johaar said.

She added she was satisfied that parliament would not violate the rule of law in processing the bill.

Mkhize told the committee several records of certification, which showed the bill is within constitutional principles, have been issued.

“As the bill stands at the moment, we believe it is ready to be tabled,” he said.

Committee chairperson Sibongiseni Dhlomo said he was confident “things have been done properly”.

In his presentation, the deputy director-general for the NHI, Anban Pillay, described the role of provinces envisaged by the NHI, saying the health department would delegate functions to provinces as management agents for the provision of healthcare services, and in those cases, the NHI Fund would contract sections within the province such as provincial tertiary, regional and emergency medical services.

Provinces will also have the following functions: Manage the ambulance services; Assist the district health management office in controlling the quality of all health services and facilities; Delegate provincial and regional hospitals and provide specialised hospital services; Participate in interprovincial and intersectoral co-ordination and collaboration; Provide technical and logistical support to district health councils; Co-ordinate health and medical services during provincial disasters; Provide and co-ordinate emergency medical services and forensic pathology, forensic clinical medicines and related services, including the provision of medico-legal mortuaries and medico-legal services; Provide and maintain equipment, vehicles and healthcare facilities; Consult with communities regarding health matters; Promote health and healthy lifestyles; Provide environmental pollution control services; Ensure health systems research.

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