On 5 and 6 May 2026, the Constitutional Court heard two separate legal challenges to the National Health Insurance (NHI) Act, both focused on alleged defects in the public participation process leading up to Parliament’s adoption of the Act. Should either challenge succeed, the Court may declare the Act invalid and unconstitutional, requiring Parliament to re-run the public participation processes in the National Assembly and/or the National Council of Provinces (NCOP) before reintroducing the legislation.
Board of Healthcare Funders’ challenge
The first challenge, brought by the Board of Healthcare Funders (BHF), argued that Parliament failed to properly engage with the public’s concerns and to interrogate Government regarding the financial viability and funding model of the Act.
In particular, BHF contended that the financial modelling underpinning the Act was outdated and insufficient, depriving the public of the ability to meaningfully assess whether the proposed scheme is affordable or sustainable. This, it argued, reduced the process to a ‘tick-box’ exercise, where submissions raising substantive concerns about feasibility, economic impact, and constitutional implications were not meaningfully considered.
Parliament maintained that detailed cost projections would have been speculative given the phased, long-term implementation of the Act. Questions from the bench were primarily concerned with whether funding and costs are material to the Act and whether, as a result, that information was necessary for the public to meaningfully engage in the public participation process.
Premier of the Western Cape’s challenge
The second challenge was brought by the Premier of the Western Cape, who challenged the public participation process before the NCOP. The Premier alleged failures in Gauteng and the Western Cape, citing a lack of evidence that NCOP members attended the Gauteng public consultations, that there was no report on the consultations in the Western Cape, and that there was no indication that the NCOP’s Select Committee considered the comprehensive concerns raised by the Western Cape delegation. The Justices grappled with how to determine whether public consultations in fact occurred in those two provinces and to what extent dissenting views from the Western Cape were actually considered. To the extent that the Premier’s challenge raises factual disputes, the Constitutional Court – which as a rule does not determine factual issues – may be wary of deciding the dispute as a court of first instance.
Potential outcomes
If the Premier is successful, only the NCOP-related public participation process would have to start afresh. If the BHF’s challenge is successful, the entire public participation process will have to restart, this time with Parliament addressing the adequacy of the information placed before the public. In either scenario, the implementation of the Act will be delayed, reopening space for stakeholder engagement which is of particular importance given the potential implications for the NHI’s funding model, benefit design, regulatory certainty, and the future role of private healthcare cover in South Africa’s health system.
If both challenges fail, the existing public participation process will effectively be endorsed as meeting the constitutional standard, potentially setting a relatively low bar for participatory democracy in complex legislative processes. In that event, the President may move to bring the Act into operation (in whole or in part), and the currently suspended High Court challenges to the substance of the Act are likely to proceed.
The Constitutional Court has reserved judgment.
