AfriForum serves summons in constitutional challenge to NHI Act

AfriForum has instituted action proceedings in the High Court challenging the constitutionality of the National Health Insurance (NHI) Act.

In a statement issued on 18 February, the organisation confirmed it has served a summons on President Cyril Ramaphosa and Minister of Health Dr Aaron Motsoaledi. The Minister of Finance, the Speaker of the National Assembly, and the Chairperson of the National Council of Provinces are also cited as respondents in the matter.

It stated that although other institutions have instituted proceedings against the Act, it has elected to proceed by way of action proceedings, which allow for the leading of oral and expert evidence where factual disputes arise.

AfriForum’s legal representative, Wian Spies, said the organisation’s case is based on the contention that certain provisions of the NHI Act are inconsistent with the Constitution and should be declared invalid and referred to Parliament.

Louis Boshoff, AfriForum’s spokesperson on health, said the organisation considers the NHI model to be fiscally unworkable and raised concerns about the potential cost implications for taxpayers and the structure of healthcare funding.

A central component of the challenge concerns the constitutional allocation of powers between national and provincial government.

The summons argues that health services fall within concurrent national and provincial legislative competence, while ambulance services fall within exclusive provincial competence. It contends that the centralisation of funding and purchasing functions in the NHI Fund – including the redirection of provincial health funding through national structures – undermines provinces’ constitutional authority to finance, plan and run health services.

The designation of certain public hospitals as “central hospitals” under the Act is also cited as legislative encroachment on provincial competence.

The particulars of claim address section 33 of the Act, which provides that once NHI is fully implemented, medical schemes may offer only complementary cover for services not reimbursable by the Fund

AfriForum argues this framework narrows the range of healthcare cover available and limits patients’ freedom of choice. The summons refers to provisions requiring users to register with the Fund, obtain services from accredited providers and follow prescribed referral pathways. It further points to the use of treatment protocols and formularies in determining which services and medicines will be funded.

The organisation contends these features may affect existing access arrangements under private medical schemes.

The summons also raises concerns about the clinical independence of healthcare practitioners. It argues that accreditation and reimbursement conditions may require adherence to Fund-determined treatment protocols, referral pathways and pricing frameworks, with potential consequences for non-compliance.

In addition, the establishment of a Health Products Procurement Unit within the Fund is cited as centralising the procurement and distribution of medicines and health-related products.

AfriForum argues these mechanisms consolidate significant decision-making authority within the Fund and, in certain respects, the Minister of Health.

The summons references South Africa’s obligations under international human rights instruments, including the International Covenant on Economic, Social and Cultural Rights and the African Charter on Human and Peoples’ Rights.

It further alleges the Act fails the constitutional rationality standard. Among the grounds advanced are that no adequate institutional or financial feasibility assessments were conducted, and the funding model and governance structure lack a sufficient evidentiary basis.

Apart from AfriForum, eight entities have initiated legal challenges to the NHI Act since it was signed into law in May 2024. These are the Board of Healthcare Funders, Hospital Association of South Africa, Health Funders Association, Sakeliga, Solidarity, South African Medical Association, South African Private Practitioners Forum, and the Western Cape Government.