Why the NHI won’t die in court: Lessons from South Africa and abroad

The claim that "the NHI will be stuck in court - and might just die there" betrays a misunderstanding of both South Africa's constitutional order and how transformative social policy gains a foothold. The authors must remember that litigation is not a tombstone; it's a stress test that strengthens design, clarifies ambiguities, and ultimately helps deliver on the promise of universal health coverage.

Courts are a crucible for reform, not a graveyard

Since President Ramaphosa assented to the National Health Insurance Act on 15 May 2024, multiple litigants have filed cases, including private-sector health financiers, doctors’ groups and other professional associations, as well as some political parties. The docket is crowded; Spotlight's editorial count puts the number at "at least nine" matters by late 2025, with some likely to be consolidated. None had been finalised at that stage. The existence of multiple legal challenges, as referenced in the Bhekisisa article, does not constitute evidence that the NHI is legally deficient or institutionally abandoned. On the contrary, it reflects the scale and significance of the transformation, which necessarily invites scrutiny where entrenched interests and long-standing inequities are being reconfigured.

Section 27's mandate is not optional; it is the constitutional stipulation

South Africa's Bill of Rights guarantees everyone the right of access to healthcare services and obliges the state to take reasonable measures, within available resources, to progressively realise this right. Our courts have repeatedly affirmed the justiciability of socio-economic rights (Soobramoney, TAC, Grootboom), using reasonableness review to guide policy rather than to write it from the bench. The Bhekisisa commentary omits that no court has found the NHI Act to be unconstitutional, nor has any court interdicted its preparatory implementation. Constitutional adjudication assesses reasonableness and progressive realisation, not political preference or speculative fiscal absolutism. The NHI's objective is to consolidate financing and purchase services equitably - it is squarely aimed at fulfilling Section 27 of the Constitution, and advisory and purchasing structures were expressly created to operationalise this mandate. 

Affordability and funding debates are legitimate - and solvable.

Critics claim that the NHI lacks a definitive cost and depends on unlikely tax amendments. While their timing concerns are partially valid, their impact assessment are incorrect. The National Treasury has already proposed a phased, preparatory strategy - initially providing grants for systems such as patient information and strategic purchasing - and has formed a technical work group to explore tax policy options. They stress that setting up the Fund will take at least 2–3 years. The NHI Act outlines potential revenue sources: the current tax base, reallocation of medical scheme tax credits, possible payroll taxes, and surcharges on personal income tax. Opponents of NHI believe that most of the funds are new. They are not. The current budget covers the health system's infrastructure, personnel, equipment, and medical devices. The NHI Act proposes options for closing the shortfall. The budget process will determine the exact combination. The government has also considered gradually removing credits that would "double fund" services once covered by the NHI, as part of rationalising financing rather than an abrupt change. The President has emphasised that the NHI Fund's funding will be responsible, avoiding irrational decisions that could harm the economy.

Do challenging affordability arguments influence court decisions? Yes, but courts generally assess whether the government's plan is reasonable given its resources, rather than expecting it to be perfect from the outset. News24's legal adviser, who explained the situation effectively, highlighted this: litigants rely on claims of rationality and reasonableness, which emphasise clear objectives, practical strategies, and balanced trade-offs -  all of which the National Treasury and Department of Health are already refining through iterative adjustments. The Bhekisisa article’s framing of funding uncertainty fails to acknowledge that NHI does not require the creation of an entirely new health budget. Existing public health expenditure remains in place, while the NHI Fund incrementally reforms purchasing and pooling arrangements over time, subject to parliamentary appropriation and fiscal oversight.

Governance concerns invite clarification, not repeal

Alarmist claims that governance questions automatically lead to institutional collapse misread South Africa’s constitutional remedial tradition, which favours correction and refinement over the wholesale invalidation of transformative legislation. Some cases question ministerial powers, scheme limitations, complaint processes, and procurement rules, often citing centralisation and lack of detail. The powers given to the Minister of Health under the NHI are no different from those given to any other minister in any South African Department or programme. South Africa's courts regularly provide tailored remedies - such as invalidating specific clauses (like the "certificate of need" under the National Health Act, which was upheld by the High Court, and on appeal by the Constitutional Court), mandating process improvements, or suspending invalidity to give Parliament time to address issues. Similar approaches are expected here: the court may call for targeted corrections rather than a complete policy reversal.

Inclusivity for migrants must align with the Constitution and public health

Limiting asylum seekers and undocumented migrants to emergency care and notifiable conditions has been criticised as regressive and possibly unconstitutional. Courts have already upheld access for pregnant women, lactating women, and young children, whether they are documented, overturning restrictive provincial policies. The Bhekisisa article’s treatment of this issue does not sufficiently recognise that constitutional interpretation, not policy abandonment, is the established mechanism for resolving such tensions within NHI implementation. Recently, the High Court blocked xenophobic barricades preventing foreigners from accessing healthcare, emphasising that Section 27 applies universally. If parts of the NHI Act or its regulations conflict with these principles, the solution is to guide interpretation rather than abandon the broader NHI project.

Reform that matters almost always faces the courts -  and survives.

International experience offers valuable lessons. Canada has protected its universal healthcare system from constitutional challenges seeking to introduce private alternatives. Courts carefully considered equality, access, and the broader impact on the system before reaffirming universalism through important rulings. Thailand's experience in reaching nearly universal coverage is often cited, highlighting the importance of combining technical planning with political support. Despite financial limitations and operational challenges, Thailand’s policy persisted through continuous adjustments rather than giving up. South Africa’s path is no different. Litigation, debate and iterative refinement are part of the maturation of universal health coverage systems - not indicators of their demise. South Africa plans to introduce NHI gradually and revise it as evidence emerges. The key takeaway is clear: litigation and debates are part of the process towards achieving universal coverage - they are not the final ultimate destination.

The Bottom Line

South Africa's health inequality is a tangible issue that imposes high human and economic costs, not merely a topic for debate. The NHI is our tool for intentionally and step by step addressing this inequality under constitutional oversight. Contrary to suggestions that the NHI may “die in court,” the more plausible outcome - supported by constitutional precedent, fiscal planning and international experience - is that judicial engagement will strengthen, not terminate, South Africa’s most important health reform. The courts are unlikely to eliminate the NHI; instead, they will influence its development. 

Dr Olive Shisana, Honorary Professor, UCT, writing in her personal capacity.

Dr Adiel Chikobvu, public servant.