NATIONAL HEALTH INSURANCE ACT PUT ON HOLD PENDING CONSTITUTIONAL COURT DECISION

Nortons represented the Hospital Association of South Africa (HASA) in obtaining a significant order by consent, effectively placing the National Health Insurance Act (NHI Act) on hold until the Constitutional Court hands down judgment in two “public participation challenges”, instituted by the Premier of the Western Cape and Board of Healthcare Funders. 

The Court approved a comprehensive order in terms of which the President and the Minister of Health have formally undertaken not to implement the NHI Act. The order follows an application brought by the Minister in which he sought to stay seven separate constitutional challenges to the NHI Act in the High Court (the constitutional challenges), one of which was brought by HASA. HASA opposed the Minister’s application on various grounds, including that the President and the Minister had made clear that they would continue to implement the NHI Act while the stay was in place. 

In terms of the court order (made by agreement), the following undertakings by the President and the Minister were recorded as orders of court:

1. the Minister has undertaken not to request the President to proclaim any sections of the NHI Act prior to the Constitutional Court handing down judgment in the public participation challenges;

2. the President has undertaken not to proclaim any provisions of the NHI Act until the Constitutional Court has handed down its judgments in the public participation challenges; 

3. the Minister has undertaken not to implement the NHI Act or exercise any powers under that Act until the Constitutional Court has handed down judgments in the public participation challenges; and

4. the Minister has undertaken with immediate effect not to bring any further application to pause HASA’s application (or any of the other constitutional challenges) without leave of the Court on exceptional circumstances shown. 

Given these undertakings, by agreement, the court order provides that the constitutional challenges will be stayed, but only until the Constitutional Court determines the public participation challenges. However, the undertakings ensure that the NHI Act cannot be brought into operation while the Constitutional Court considers and finally determines the public participation challenges.

A successful outcome for HASA

This order provides certainty to the private healthcare sector and ensures that no implementation steps can be taken under the NHI Act while the Act's constitutional validity remains under consideration by the country’s apex court.

Nortons Incorporated is proud to represent HASA in complex litigation of national importance and to have secured undertakings at the highest level of government.