‘Parliament had no intention of listening to the public’, ConCourt told in NHI legal battle
· Citizen
The Constitutional Court (ConCourt) on Tuesday, 5 May 2026, began hearing the first in a series of legal challenges against the National Health Insurance (NHI) scheme.
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The NHI Act is intended to establish a single, state-managed fund to provide universal healthcare access.
However, the legislation has remained highly controversial, triggering a wave of legal challenges from different organisations.
The initial case, brought by the Western Cape provincial government together with the Board of Healthcare Funders (BHF), centres on whether the public consultation process that preceded the Act’s passage was constitutionally adequate.
NHI Act under scrutiny
The NHI Bill was initially introduced in 2019 and only completed its parliamentary process several years later.
It was adopted by the National Assembly in June 2023, followed by approval by the National Council of Provinces (NCOP) in December 2023.
President Cyril Ramaphosa signed the legislation into law in May 2024, though its rollout has been delayed by ongoing litigation.
Now, the applicants are asking the ConCourt to declare the Act invalid and to have it returned to Parliament for reconsideration.
A key argument raised by the BHF is that the public was not given sufficient information during the consultation phase, particularly regarding the projected costs of the NHI and the specific benefits it would deliver.
They argue that this undermined the ability of citizens to meaningfully engage with the legislation.
Separately, Western Cape Premier Alan Winde contends that Parliament failed to properly take the province’s submissions into account when considering the Bill.
‘Tick-box’ public participation process
At the start of the three-day hearing, Advocate Bruce Leech, representing the BHF, told the ConCourt that Parliament had failed to facilitate genuine public participation and instead conducted what he described as a “tick-box” exercise.
Leech contended that Parliament did not adhere to its own public participation guidelines, which were established in 2013.
“It is clear when you compare the framework to the facts of the case that parliament has fallen short. The idea that there was dialogue, collaboration or interaction is palpably and demonstrably false.
“It did not occur in this case. So, the standards that Parliament set itself in the framework had not been met,” the lawyer argued.
Public participation can take various forms, including public hearings, petitions and written comments.
Citizens may email their submissions to committee secretaries or designated addresses linked to a Bill, share their views via community radio stations, or request to make oral submissions during virtual or in-person hearings.
Watch the proceedings below:
Leech emphasised that the BHF’s case is not an attack on universal health coverage itself.
“It’s not a question of [whether this court is going] to give its stamp of approval or conversely to shut down universal healthcare. That is not the issue. The issue is, and solely is, meaningful public participation.”
He argued that Parliament approached the process with a narrow focus, treating public input as a measure of support or opposition rather than engaging with the nitty-gritties of submissions.
“Parliament treated the public participation process as being something akin to a plebiscite, and that’s not what it is,” Leech remarked.
Qualitative exercise
The BHF stressed that a key issue is whether public participation led to a better law.
“That is the way in which Parliament should have approached it – not to say we are simply going through the motions, but to ask whether what we are being fed by the public is something we can use to make this legislation better.
“Our submission is that Parliament had no intention of listening to the public,” Leech told the judges.
The lawyer pointed out that although Parliament received a large number of submissions and considered the costs involved in public participation, the process was not simply a matter of treating it as a “quantitative exercise”.
“It’s a [qualitative] exercise.”
Concerns over cost and feasibility
According to Leech, many public submissions raised fundamental concerns about the financial viability and implementation of the NHI.
“Those common-sense issues were raised over and over again. First: how much is this going to cost? In other words, can we afford it?
“Secondly, what am I going to get in return? And thirdly: how will this work? – especially because [the government’s] track record suggests a lack of trustworthiness.”
He further pointed to Parliament’s meeting records, suggesting that MPs did not properly address the concerns raised by the public, and instead concentrated on the Department of Health’s stance regarding those submissions.
“The department says they are not involved; that there is a separation of powers. But Parliament plainly relies on the department to do some of its work for it and one of them must be right or wrong.
“If there is a misunderstanding or misapprehension between the two as to what their roles are, then there is a failure of understanding of the meaningful public participation process, and that in and of itself warrants the setting aside of the Act,” Leech added.