The dishonesty of the NHI defenders - Politicsweb

John Endres

The South African Communist Party (SACP) says that using the Constitutional Court to challenge the National Health Insurance (NHI) Act is “the ultimate definition of a political oxymoron.”

The African National Congress (ANC), in a statement issued by its national spokesperson, Mahlengi Bhengu, says that any individual, organisation or political party that “obstructs, manipulates, or distorts constitutional processes of policymaking and lawmaking commits a constitutional and legal transgression.”

These are extraordinary positions from a Congress alliance that appears to rank its own policy preferences above the constitutional order.

A word for the Constitutional Court

Section 38 of the Constitution gives every person the right to approach a court if they believe a right in the Bill of Rights has been infringed or threatened. Section 34 gives everyone the right of access to the courts.

The Constitutional Court exists to determine whether legislation passed by Parliament is consistent with the Constitution. That is its purpose, and its only reason for existing. Going to that court to challenge a law’s constitutionality is a core mechanism of constitutional democracy.

The SACP’s claim that such a challenge constitutes an “oxymoron” only makes sense if one holds the view that parliamentary majorities should be immune from constitutional review. That is parliamentary supremacy, a doctrine South Africa’s Constitution explicitly rejected. Our Constitution places limits on what Parliament may enact. Those limits are enforceable in court, and the Constitutional Court is the institution charged with enforcing them.

Mahlengi Bhengu, speaking for the ANC, does not use the word “oxymoron”, but her statement is no less troubling. By suggesting that those who challenge the NHI through legal mechanisms are “obstructing” and “manipulating” constitutional processes, she is conflating legitimate legal opposition with sabotage. She leaves no room for a challenge that is both sincere and constitutionally proper. The right of public participation, which the Constitution also enshrines, would appear to fall into the same category: if the ANC has decided, resistance becomes treasonous.

The SACP adds another layer of procedural dishonesty. Its statement describes the arguments of the NHI challengers as “unfounded allegations” and “false statements”. The SACP made this assessment on the day the Constitutional Court hearing began, before a single submission had been tested. The court’s function is to determine whether the allegations are founded. A party that convicts its opponents before the trial has started forfeits its right to invoke the rule of law in the same breath.

The access confusion

The statements from both parties rest on a confusion that is either careless or deliberate. South Africa already has universal access to healthcare. Its public hospitals and clinics serve everyone, including non-citizens, without charge. The pressing question is why the state-run system so often fails to deliver adequate care, and what to do about it.

The ANC’s statement is careful about constitutional language, at first. Bhengu correctly describes Section 27 as enshrining “the right of access to healthcare”. But later in the same statement, she drops the “access to” and writes of “the right to healthcare” instead.

These phrases sound similar, but they describe different things. The constitutional entitlement is to access healthcare services, not to any particular delivery model. Section 27 does not prescribe a single-payer fund, or require the elimination of private healthcare, or mandate that the state become the sole purchaser of medical services. The ANC needs the Constitution to mean all of these things, so it converts “access to healthcare” into a right to public provision, hoping nobody will notice.

South Africa’s healthcare crisis is a quality crisis in the public sector. The problem is corruption and the deployment of politically connected individuals to run facilities they lack the competence to manage. When Hangwani Maumela drove around in blue Lamborghinis bought with money allegedly defrauded from Tembisa Hospital, he illustrated the real problem: politically connected individuals gorging themselves on money meant to be helping the sick and dying. It is obscene.

The Life Esidimeni disaster offered the same illustration on a far larger scale. In 2016, the Gauteng health department, under MEC Qedani Mahlangu, terminated the contract with Life Esidimeni, a residential care facility for mental health patients – some of society’s most vulnerable people – and transferred those patients to NGOs that were unequipped to receive them. More than 140 patients died. A subsequent arbitration process found gross negligence, but no one has faced criminal prosecution. The officials responsible returned to their lives as if nothing had happened.

Such disasters cannot be prevented without accountability: consequences for failure, criminal sanction for misconduct, and the appointment of officials on merit. The NHI Act addresses none of these. A larger fund managed by the same institutions merely multiplies the risk.

Silence on cost and capacity

Neither the ANC nor the SACP statement contains a word about what the NHI will cost. There is no cost figure that would help their case, so they remain silent on this question.

Independent estimates of the annual cost range from R200 billion to above R500 billion. The SACP offers one apparent source of funding: redirect the approximately R38 billion the government currently spends on tax subsidies for private medical aid. But this is an amateurish suggestion. R38 billion is, at best, around one fifth of the lower-bound estimate.

Beyond that, eliminating those subsidies would push a substantial number of people out of private cover and into the public system, increasing demand on NHI resources rather than reducing it. The SACP presents this as a funding solution when in reality it is no such thing.

The capacity problem is at least as serious, and also absent from both statements. The NHI would create the largest single-payer health fund in South African history, administered by the same state that produced the PPE procurement scandal and years of material irregularities across provincial health departments, as the Auditor-General has found year after year. The ANC and SACP offer no explanation of how a government that cannot keep a hospital stocked with medicine will administer a fund larger than the entire current health budget.

The false choice

The SACP warns that if the NHI is defeated, South Africa faces “Americanisation”: a health system in which a hospital visit means lifelong debt. This is a false choice, constructed by leaving out most of the world’s evidence.

The 2024 World Index of Healthcare Innovation, which rates 32 high-income countries across quality, patient choice, scientific capacity and financial sustainability, found that four of the world’s top five healthcare systems achieve universal coverage through private insurance, not through a state-run single-payer fund.

Switzerland ranks first. Its system requires every resident to hold private health insurance; there is no free state healthcare service at all. The government subsidises low-income residents to buy cover, and private insurers compete on price and service. Switzerland consistently produces short waiting times, high-quality outcomes, and near-universal coverage. It contains no NHI-style central fund.

Germany, the Netherlands, and Ireland round out the top four, each achieving universal coverage through regulated systems of private and quasi-public insurance that coexist with strong private healthcare sectors.

Singapore offers a different lesson, one perhaps more relevant to a country at South Africa’s stage of development. Bloomberg ranked Singapore’s healthcare system the most efficient in the world. The Economist Intelligence Unit placed it second globally for health outcomes. It achieves this through a three-part structure: compulsory personal savings accounts for routine care, mandatory insurance for large hospital bills, and a government safety net for those who cannot meet their remaining costs. Public and private hospitals operate alongside each other. Singapore spends approximately 4.5% of GDP on healthcare. South Africa spends roughly twice that share, for far worse results.

The SACP might respond that these are wealthy countries, and South Africa’s poverty makes their models inapplicable. Thailand counters that objection. Thailand introduced universal health coverage in 2001, when its GDP per capita stood at approximately $1,900, less than a third of South Africa’s today.

It achieved full population coverage through a tiered system that preserved private hospitals and private insurance alongside public provision, and it spends about 5% of GDP on healthcare to produce outcomes that have steadily improved over two decades.

A country at $1,900 per head found a way to expand coverage without destroying its private sector. South Africa, at more than three times that income, is told it has no choice but to abolish private healthcare as the price of doing the same thing.

The SACP’s contention that the only alternative to the NHI is US-style healthcare would not survive five minutes of honest engagement with the comparative evidence. It goes unargued in the statement for the obvious reason.

Defending what matters

South Africa already has universal healthcare, which could be of a much higher standard if it were underpinned by a public health system with adequate funding, competent management, and freedom from the corruption that has degraded it.

The trouble with the NHI Act is that it proposes to solve the problems of an underperforming public system by destroying a world-class private system that serves roughly nine million South Africans and concentrating vast resources in institutions the state has shown no capacity to run.

The ANC and SACP offer no costing, no capacity plan, and no account of how a larger and more centralised fund would heal the governance failures that have broken the existing system. In place of those answers, they misrepresent what the Constitution says, accuse of bad faith anyone who dares to question their preferred law, and conjure the spectre of an  “American” healthcare catastrophe.

These are the arguments of parties that have run out of arguments. South Africans who go to the Constitutional Court to test a law’s constitutionality are doing what the Constitution expressly empowers them to do. The court will decide whether they are right or wrong. The ANC and the SACP might try to accept that with the grace of parties that trust both their law and their Constitution, rather than threatening those who dare to test either.

Dr John Endres is CEO of the SA Institute of Race Relations

https://www.politicsweb.co.za/news/the-dishonesty-of-the-nhi-defenders

This article was first published on the Daily Friend.