Quote of the week

Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.

L'Heureux-Dube and McLachlin JJ
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
16 May 2024

Why the ConCourt is not the appropriate body to resolve policy disagreements about the NHI Act

The Constitution does not and should not prevent the democratically elected government from passing laws merely because an economically powerful minority opposes it.

It is inevitable that the constitutionality of aspects of the National Health Insurance Act will be challenged in court and that the Constitutional Court will have to consider these challenges. We do not yet know on exactly what grounds the constitutionality of the Act will be challenged, and it is thus currently not possible to say definitively whether any of the legal challenges will succeed.

I am, however, prepared to put my head on a block and say that the Constitutional Court will decline any invitation by opponents of the Act to torpedo the implementation of the entire Act, not least because it is not the role of the court to make decisions on whether a specific policy choice of the government is good or bad, or whether there were better ways for the government to achieve its legitimate policy objectives.

And let there be no mistake, the objectives of the NHI policy cannot be faulted.

The Act provides for the establishment of a National Health Insurance Fund which will pay for a list of prescribed medical services (which will be expanded over time) that will be provided to registered users of the fund by registered healthcare professionals in the public and the private sectors. Healthcare professionals will not be free to set their own rates for these prescribed services as they will be reimbursed in accordance with rates annually set by the fund. It may take 10 to 15 years to fully implement the National Health Insurance system.

Private medical schemes will continue to exist, but will not be permitted to cover medical services already covered by the fund. However, if a significant number of people give up their medical aid it is likely to lead to a dramatic increase in the cost of private medical aid. It is not yet clear how all this will be funded, but it would require the imposition of additional taxes. The argument is that such additional taxes may only have a limited impact on those of us who are currently members of private medical aid schemes as we would no longer have to pay for expensive medical aid.

This new policy aims to eradicate existing inequality in the provision of healthcare services so that everyone more or less has access to the same high-quality healthcare services, provided at a reasonable rate at state expense.

In constitutional terms, the aim of the NHI is to give effect to the state’s duty in section 27 of the Constitution to take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of the right of access to healthcare.

Valid concerns

If the system works as intended, it will create a much fairer system and will go a long way to realise the constitutional right of access to healthcare for all. While there are valid concerns about the ability of a weak and corrupt government to fund and implement the scheme, I would argue that the Constitutional Court is not the appropriate body to address such concerns.

The NHI seeks to implement the specific policy choices of the elected government. If the governing party loses its majority in Parliament in the upcoming election and opponents of the NHI win a majority of seats, they would be able to repeal the Act.

In a hung Parliament, opposition parties could also use their participation in a coalition government as a bargaining chip to demand changes to the Act. But if the majority of voters cast their ballots for parties that support the current Act, it is not appropriate for the court to thwart the will of the people by torpedoing the Act merely because it believes it is a bad policy or because there are concerns about the impact of the NHI on people who currently belong to medical aid schemes.

Of course, the court does have the power to invalidate the Act on procedural grounds and to invalidate specific provisions of the Act if these unjustifiably limit one or more of the rights in the Bill of Rights. However, its role is a limited one in cases where it is called upon to review legislation that implements the policy choices of the elected government.

As the Constitutional Court warned in National Treasury and Others v Opposition to Urban Tolling Alliance and Others, courts are not always well suited to make decisions about the collection and ordering of public resources as this “inevitably calls for policy-laden and polycentric decision making”. This is so because:

Determining how public resources are to be drawn upon and re-ordered lies in the heartland of Executive Government function and domain. What is more, absent any proof of unlawfulness or fraud or corruption, the power and the prerogative to formulate and implement policy on how to finance public projects reside in the exclusive domain of the National Executive subject to budgetary appropriations by Parliament.

That said, let me now turn to a tentative assessment of some of the arguments being made in support of claims that the Act or parts of the Act are unconstitutional and invalid.

Lack of public participation

Business Leadership SA CEO Busisiwe Mavuso suggested that the Act could be challenged because the minister or Parliament had failed adequately to take into account the results of public consultation, and suggested that the Promotion of Administrative Justice Act (Paja) required “proper consideration of the input received”. This is misleading, first, because Paja does not apply to the exercise of the executive or legislative function, and second, because the duty of Parliament to afford the public a reasonable opportunity to participate effectively in the lawmaking process, does not require Parliament to adopt any of the arguments made before it.

What is required in cases where important legislation is under consideration is for Parliament to provide a reasonable opportunity for the public to have their say and for it to give due consideration to the views of the public. The Constitutional Court is not going to invalidate the Act because the portfolio committee rejected the overwhelming majority of submissions made to it — as long as there is evidence that it considered the important arguments presented to it, it would have met the requirement to facilitate public participation in the process.

The right to freely choose one’s trade or profession

It has been suggested that provisions in the Act that prohibit medical schemes from covering medical services already covered by the fund might infringe on the section 25 property rights of medical schemes as well as their section 22 right to choose their trade, occupation or profession freely. It is not clear to me what the legal basis for these arguments might be, but I assume it is based on the assumption that these provisions might — in the long term — put some or most medical schemes out of business.

If this is so, a major problem with this argument would be that the court would be asked to invalidate legislative provisions based on sweeping claims about their possible effect in the distant future, which is never a winning argument. Moreover, similar arguments advanced in Minister of Health and Another v New Clicks South Africa (Pty) Ltd and Others failed to find favour with the Constitutional Court. There the argument was that specific regulations on the pricing of medicine would render many pharmacies not economically viable, which would have the effect of discouraging people from choosing to pursue or remain in the pharmacy profession in conflict with section 22 of the Constitution.

In separate judgments, justices Dikgang Moseneke and Albie Sachs pointed out that there was not sufficient evidence to show that the regulations threatened the continued existence of pharmacies. Justice Sachs added, “The mere fact that a government measure could result in service providers losing their competitive edge so as to face being driven out of business, would not in itself be enough to make a measure legally inappropriate”. He warned against attempts to use constitutional arguments to protect the status quo, as this might serve “to block transformation and freeze challengeable aspects of our public life”.

Access to healthcare of current medical aid members

Concern about the NHI is largely driven by fears that it will reduce the easy access and quality of health services available to current members of medical aid schemes. Understandably, many middle-class people are anxious that the reform will leave them worse off, not least because the implementation of the NHI may well reduce the easy access and quality of health services available to those of us who can afford medical aid.

In essence, the fight here is a political fight about the policy choices of the elected government. The government is perceived to have made a policy choice that will disadvantage the middle- and upper-class minority while conceivably benefiting the working class and poor majority. This is, of course, to be expected in a constitutional democracy.

Although this has been the norm rather than the exception over the past 25 years, it is rather absurd to expect the ANC government not to adopt popular policies that would benefit its core constituency just because this would be unpopular with the middle- and upper-class voters, who are in any event less likely to vote for the ANC.

So, while in theory a constitutional argument could be made that the NHI would infringe on the section 27 right of access to healthcare of those who already enjoy easy access to high-quality healthcare, if it reduced the easiness of access or the quality of the healthcare, it would be surprising if our courts found that any such limitation was not justifiable in terms of the section 36 limitation clause. This is so particularly given the important purpose being served by the NHI and uncertainty about the exact impact of the new policy.

Exclusion of categories of non-citizens from some benefits

There is one provision of the Act that raises valid concerns about the discriminatory impact of the scheme. This is section 4(2), which states that asylum seekers or illegal foreigners are only entitled to emergency medical services and services for notifiable conditions of public health concern. This is a discriminatory provision that, at least as far as asylum seekers is concerned, would be difficult to justify.

Lest I be misunderstood, I am not suggesting that the issues discussed above are the only possible issues that may feature in litigation challenging aspects of the NHI Act. Nor am I suggesting that there is no possibility of the court invalidating specific provisions of the Act. There is also a fair chance that serious problems will arise during the implementation of the policy and that the court may then be more willing to consider precisely targeted constitutional challenges dealing with these problems.

But I do worry that the inevitable flurry of legal challenges will obscure the fact that the unhappiness about the introduction of the NHI is rooted in a fundamental political disagreement about the wisdom of a specific policy choice made by the democratic government, a choice that seems to favour the working class and poor majority and not the upper- and middle-class minority.

The Constitution does not and should not prevent the democratically elected government from passing laws merely because an economically powerful minority oppose it. (It would, of course, be an entirely different matter if the law unjustifiably limited the rights of anyone or otherwise breached the Constitution.)

The NHI may turn out to be a damp squib because the government may not be able to fund it. It may also turn out to be a disaster, not only for the privileged but also for those already suffering because of limited access to healthcare. A Constitutional Court is not well placed to protect us all from such a disaster, just as it is would not be well placed to protect us from the disastrous effects of a radical free market policy implemented by another government.

Welcome to democracy.

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