BUSA and B4SA are preparing to submit a formal petition to President Ramaphosa, requesting that he refer the NHI Bill back to the National Assembly for amendment.

The Business groups believe that the Bill, in its current format, is not only unworkable, unimplementable, and unaffordable, but also unconstitutional, both on substantive and procedural grounds.

This follows the adoption of the Bill by the National Council of Provinces without any amendments on 6 December 2023.

The South African Constitution, under Section 79, provides that once a Bill is adopted, the President must either assent to and sign the Bill or, if the President has reservations about the constitutionality of the Bill, refer it back to the National Assembly for reconsideration.

Martin Kingston, B4SA Steering Committee Chair, says their concerns, recommendations, research, data and inputs, as well as those made by a wide range of experts and affected stakeholders, have been summarily ignored by the Parliamentary Portfolio Committee on Health and the NCOP.

“The consequence of passing this Bill, unamended, is devastating. It will materially delay access to universal health coverage, lead to disinvestment in the healthcare sector, further damage our already fragile economy, and create significant risks for the country in terms of the quality, management and governance of healthcare.”

In terms of the substantive constitutional flaws in the NHI Bill BUSA/B4SA says Section 33 gives the Health Minister unfettered power to determine the restricted role for medical schemes.

They argue this is damaging to the private health sector as a whole and will negatively impact people’s ability to seek care in the private sector, aswell as overloading the public sector.

The business groups also say the processes for accessing healthcare, and making appeals when the NHI refuses access to treatment, are inadequate to the point where they are more likely to frustrate or even deny the right of access to health services.

In addition, Sections 48 and 49 of the Bill refer to introducing new taxes and making tax changes, which should be decided and proposed by National Treasury in a Money Bill, in accordance with the Constitution. The Bill also breaches the separation of powers by granting the Minister judicial discretion.

Cas Coovadia, CEO of BUSA, says:

“We need to be clear. We have not rejected the Bill in its entirety, and have consistently supported its policy direction towards universal health coverage. Our inputs have been intended to remedy the constitutional, funding and practical deficiencies in the Bill. We believe the Portfolio Committee on Health and the NCOP have conducted themselves unconstitutionally in pushing through the Bill without due consideration of these concerns. It also used a simplistic yes or no opinion poll on the desirability of universal health coverage, which was never in question, as the determinant of support for the NHI Bill. For these reasons, it is our strong belief that the President must refer it back to the National Assembly for amendment.

“The private sector’s participation in the NHI is critical to its success, not only in terms of funding, but also in the expansion and delivery of quality healthcare services. As a country, we have consistently seen that when the public and private sectors work together, pooling our substantial resources, expertise, skills and technical know-how, we are able to achieve far more than when we work in isolation of each other. We worked together to address a global pandemic, we are working together now to tackle our country’s infrastructure, energy, transport and crime challenges, and we must work together to ensure that the healthcare system we land with is practical, affordable and implementable.”