The High Court in Pretoria has ordered President Cyril Ramaphosa to provide the record of his decision-making process related to his assent to and signing of the National Health Insurance Bill in May last year.
The judgment, delivered on Tuesday, is the result of applications last year brought by the Board of Healthcare Funders (BHF) and the South African Private Practitioners Forum (SAPPF) to review and set aside the president’s decision to sign the Bill.
The BHF says it represents about 40 medical schemes and medical scheme administrators that serve some 4.5 million beneficiaries. The SAPPF represents the interests of private healthcare specialists across South Africa.
Their applications were brought against the President, the Minister of Health, the Minister of Finance, and National Treasury. The latter two respondents did participate in the proceedings.
The High Court decided to hear the BHF’s and the SAPPF’s applications together because the President and the Minister of Health raised similar counter arguments in both cases.
The President and the minister submitted that the High Court lacked jurisdiction to adjudicate the proceedings, and the decision could not be reviewed. Even if the decision could be reviewed, that no record in terms of Rule 53 of the Uniform Rules of Court needed to be produced. And if the decision were reviewable and a record had to be produced, the President was not obliged to do so.
Judge Leonard Twala’s judgment addressed three main questions of law.
1. Jurisdiction of the High Court
The President and the Minister of Health argued that the case involved an allegation of the President’s failure to fulfil a constitutional duty (under sections 79 and 84). Therefore, the matter engaged the Constitutional Court’s exclusive jurisdiction.
Section 167(4)(e) of the Constitution grants the Constitutional Court exclusive authority in specific cases, such as when the President or Parliament is alleged to have failed to fulfil a constitutional obligation unique to them.
The High Court reasoned that jurisdiction hinges on the nature of the claims in the pleadings, not the merits of the case. It clarified that the Constitutional Court’s exclusive jurisdiction applies only to agent-specific obligations – duties imposed solely on the President or Parliament.
In this case, the President’s role in assenting to and signing the NHI Bill was part of the broader legislative process, which involves Parliament, rather than a standalone duty exclusive to the President. Thus, the matter did not trigger the Constitutional Court’s exclusive jurisdiction.
The court further said the case did not involve politically sensitive issues or separation-of-powers disputes that would necessitate the Constitutional Court’s intervention. Instead, it required a legal evaluation of whether the President properly applied his mind under section 79 when assenting to the Bill, despite objections from stakeholders.
“This cannot be said to be intruding into the domain of the principal legislative and executive organs of state, which would bring the matter into the remit of the exclusive jurisdiction of the Constitutional Court,” Judge Twala said.
Thus, the High Court concluded it had jurisdiction to hear the case, because it involved a standard legal review rather than a constitutional matter reserved for the Constitutional Court.
2. Reviewability of the President’s decision
The respondents claimed the President’s decision was not reviewable, because it was an exercise of original constitutional power under section 79, not administrative action, and was excluded from review processes such as those under the Promotion of Administrative Justice Act (PAJA).
The court rejected this position, asserting that all exercises of public power, including the President’s, must adhere to the Constitution and the principle of legality.
“The President’s power to assent to and sign a Bill into law is public power, which is part of the President’s constitutional duties and responsibilities which he exercises in the public interest. The power to assent to and sign a Bill into law is a key aspect of the legislative process, as the President is a role-player in the legislative process. Since all public power is bound to the principle of legality and the specific constraints imposed by section 79(1) clearly demonstrate that this power is subject to constitutional controls, it is therefore capable of judicial review,” Judge Twala said.
The court further elaborated that the President’s discretion under section 79 – either to refer a Bill back to Parliament or to assent to it – must be exercised lawfully, rationally, and in good faith, particularly given the widespread objections to the NHI Bill’s constitutionality.
By framing the President’s action as a reviewable exercise of public power, the court affirmed that no official, not even the President, is above the law or exempt from accountability when constitutional duties are at stake.
3. Obligation to produce the decision-making record
The respondents argued that Rule 53 does not apply to the President’s constitutional functions, because it is designed for inferior courts, tribunals, or administrative bodies, not the Head of State. Even if the Rule were applicable, they contended no record was required because of the political nature of the decision.
The court disagreed, holding that Rule 53 applies to all exercises of public power, including the President’s decision to assent to the NHI Bill.
“It is well established that the primary purpose of Rule 53 of the Uniform Rules of Court is to facilitate and regulate the applications for review. The rule requires the production of the record of the impugned decision, since it is of cardinal importance, as it provides the necessary insights into the decision-making process, which is essential to determine the lawfulness and rationality of the decision,” Judge Twala said.
The court also said the record serves a broader constitutional purpose, enabling both the applicants and the court to assess the decision’s legality.
Even if Rule 53 were deemed inapplicable, the court asserted its inherent authority under section 173 of the Constitution to order the production of the record in the interests of justice.
Judge Twala ordered Ramaphosa to furnish the record of the decision within 10 calendar days of the court order. The President and the Minister of Health were ordered to pay the costs of the applications.
4. BHF and SAPPF comment on the judgment
The BHF welcomed the ruling, describing it as an important milestone in its legal challenge to the NHI Act.
“This is a victory for the rule of law, and a step towards exposing the unconstitutional aspects of the [NHI] Act,” the BHF said in a statement on Tuesday. “It reaffirms the constitutional principle that all public power is subject to the rule of law and that no office bearer, including the president, is above judicial scrutiny.”
The BHF said it believed the full record of the President’s decision-making process would demonstrate that he ignored compelling legal and policy objections against the NHI Act submitted by multiple stakeholders from civil society, business, and the healthcare sector.
SAPPF’s chief executive, Dr Simon Strachan, said it was noteworthy that the judgment drew attention to the extensive range of parties that over the years had questioned the constitutionality of the NHI Bill, including National Treasury, Parliament’s legal advisers, the Western Cape provincial government, and various industry associations that had not only made submissions to Parliament but also petitioned the President directly.
