In August, the Minister of Health applied to pause and consolidate all constitutional challenges to the National Health Insurance (NHI) Act, arguing that the growing number of cases before different courts risked duplication, wasted resources, and potentially conflicting judgments.
Last week, business organisation Sakeliga filed a counterapplication, calling the minister’s proposal an “abuse of process” and accusing the government of trying to shield the NHI Act from judicial scrutiny while continuing with its implementation.
Minister of Health Dr Aaron Motsoaledi approached the High Court in Pretoria with an application to consolidate all pending cases challenging the NHI Act and to stay (or temporarily halt) proceedings until certain appeals before the Constitutional Court are resolved.
According to court papers and departmental statements, the ministry believes that hearing separate cases in multiple forums will consume time and money unnecessarily. Department spokesperson Foster Mohale said at the time that “it would be a waste of the court’s time and taxpayers’ money to deal with the same matter in different courts”.
Dr Nicholas Crisp, the deputy director-general responsible for NHI, argued that consolidation would promote judicial economy, noting that at least 17 separate applications have been filed against the NHI Act by various stakeholders.
He also indicated that the Department of Health would not finalise key NHI regulations until after the legal process is concluded – a signal, he said, of the government’s commitment to act within the bounds of ongoing litigation.
Motsoaledi’s filing, however, drew objections from several litigants, who argued that any suspension of proceedings should also apply to the implementation of NHI itself. They contended that allowing the government to proceed with implementation while litigation is paused would undermine the purpose of judicial review.
On 22 October, Sakeliga announced it has filed a counterapplication opposing the minister’s request. The organisation launched its constitutional challenge to the NHI Act in August.
Sakeliga’s latest filing argues that the minister’s stay-and-consolidate application is not a matter of efficiency but a delay tactic. The group says the effect of the proposed stay would be to shield the NHI Act from judicial review while “ongoing harm” is inflicted on the economy, taxpayers, and the healthcare system.
In a statement, Sakeliga said: “It is not the constitutional challenges to the NHI that should be halted, but the implementation of the NHI itself.”
The organisation’s conditional counterapplication asks the court to do one of two things:
- Reject the minister’s application entirely, allowing each constitutional challenge to proceed in its current forum; or
- If the court grants the minister’s request for a stay, interdict government from taking any further steps to implement the NHI until the litigation has been resolved.
Sakeliga characterises the government’s approach as an “abuse of process”, arguing it effectively grants the executive branch an advantage – freezing opposition while continuing to advance implementation plans.
Sakeliga’s main case
Sakeliga’s principal constitutional challenge, filed in the High Court in Pretoria on 27 August, seeks to have the NHI Act declared unconstitutional and set aside in its entirety.
The organisation argues that the Act violates constitutional principles by creating a state monopoly over healthcare funding and eliminating private medical insurance for services covered by the NHI. Its court papers cite section 27 of the Constitution, which guarantees the right to access healthcare “within available resources”, contending that the NHI model far exceeds the state’s fiscal capacity.
An independent financial analysis submitted by Sakeliga projects that funding the NHI could require a 30% increase in income tax rates, equivalent to roughly R500 billion in additional annual revenue. The group warns that such an increase would be economically “unthinkable” and would significantly undermine investment and employment.
In its statement, Sakeliga says it is “mounting a comprehensive defence against the nationalisation of healthcare,” joining what it calls a “mountain of legal opposition” to the NHI that now includes medical associations, funders, and several provincial governments.
Other challenges to the Act
By October, at least eight parties had lodged court challenges to the NHI Act. These include:
- Trade union Solidarity, which is challenging the rationality of the Act in the High Court.
- The Hospital Association of South Africa, representing private hospitals, which argues that the NHI is “fundamentally unreasonable and unaffordable”.
- The Board of Healthcare Funders, representing medical schemes, which has taken the President to court over his decision to sign the Act, while also bringing a separate Constitutional Court case against Parliament’s public-participation process.
- The Western Cape Provincial Government, which filed its Constitutional Court application in September, alleging that the National Council of Provinces failed to conduct meaningful public consultation before passing the Bill.
- Other professional bodies such as the South African Medical Association and the South African Private Practitioners Forum, both pursuing parallel challenges.
Each of these cases raises different aspects of constitutional, administrative, or procedural law. The consolidation proposed by the Minister of Health would, in theory, allow the High Court or Constitutional Court to hear them together. But critics warn that doing so could delay resolution for months or years, depending on the procedural route chosen.
The Department of Health maintains that its application to consolidate and stay proceedings is aimed at protecting the public interest. Officials say it would be “irrational and costly” for multiple courts to handle similar constitutional issues separately.
Crisp has also pointed out that some litigants have already approached the Constitutional Court directly, which may ultimately render High Court hearings redundant. He described the NHI litigation as “unprecedented in its volume and constitutional complexity” and said the department’s intention is to allow the highest court to give clarity on the Act’s legality before resources are spent on overlapping cases.
