The future of South Africa’s National Health Insurance (NHI) Act could be ruled invalid in two Constitutional Court challenges by the Board of Healthcare Funders (BHF) and the Premier of the Western Cape.
The challenges argue that Parliament failed to properly involve the public before adopting the NHI legislation.
This is the feedback from Bowmans director, David Geral, and associate Zandile Gando, who noted that the cases are a major hurdle for the NHI Act to overcome.
The experts explained that the Constitutional Court recently heard two separate legal challenges to the NHI Act, both centred on alleged flaws in the public participation process followed by Parliament.
The court heard arguments on 5 and 6 May 2026, with both cases focusing on whether South Africans were given a meaningful opportunity to engage with the legislation before it was passed.
According to Bowmans, if either challenge succeeds, the Court may declare the Act invalid and unconstitutional, which would force Parliament to restart parts of the legislative process before the law can be reintroduced.
One of the challenges was brought by the Board of Healthcare Funders (BHF), which argued that Parliament failed to properly consider concerns raised by the public.
These concerns continue to be a major sticking point, and include the affordability and sustainability of the NHI system in South Africa.
The BHF argued that the financial modelling behind the Act was “outdated and insufficient”, preventing the public from meaningfully evaluating whether the proposed healthcare scheme could realistically work.
According to the challenge, this reduced the consultation process to a “tick-box” exercise where major concerns about economic impact, feasibility, and constitutional issues were not genuinely considered.
Bowmans noted that Parliament defended its approach by arguing that detailed cost projections would have been speculative because the NHI is intended to be implemented gradually over a long period.
However, judges appeared particularly interested in whether funding details were essential for meaningful public participation.
“Questions from the bench focused on 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,” the experts said.
The final rulings will have a significant impact
The second challenge was brought by the Premier of the Western Cape, targeting the public participation process conducted through the National Council of Provinces (NCOP).
The Premier argued that procedural failures occurred in both Gauteng and the Western Cape during the consultation process.
According to Bowmans, concerns included a lack of evidence that NCOP members attended the Gauteng public consultations, and the absence of a report on consultations held in the Western Cape.
Additionally, the Premier argued that there was no indication that the NCOP Select Committee properly considered objections raised by the Western Cape delegation.
Bowmans said the Constitutional Court struggled to ascertain if public consultations really happened and whether differing opinions were properly taken into account.
Bowmans noted that this could present a complication because the Constitutional Court generally does not act as a court of first instance in disputes involving factual disagreements.
The outcome of the two cases could have very different consequences for the future of the NHI Act.
If the Western Cape Premier’s challenge succeeds, only the NCOP-related participation process would need to be repeated.
However, if the BHF challenge succeeds, the entire public participation process for the Act may need to start from scratch.
Bowmans said this would require Parliament to revisit the adequacy of the information provided to the public during consultations.
In either case, implementation of the NHI would face further delays, reopening opportunities for stakeholder engagement at a time when concerns remain.
The law firm also warned that if both challenges fail, the current participation process would effectively be endorsed as constitutionally sufficient.
“This could set a relatively low bar for participatory democracy in complex legislative processes”, Bowmans said.
Should the Constitutional Court dismiss both challenges, President Cyril Ramaphosa may proceed with bringing the Act into operation, either fully or partially.
The NHI Act has already taken a major blow from the Constitutional Court. On 18 May, the court ruled on the Certificate of Need.
In South Africa, a Certificate of Need (CoN) is a proposed regulatory licensing system for healthcare providers and establishments, including public and private hospitals, clinics, and individual doctors’ practices.
Its primary aim is to mandate where healthcare facilities can be located or expanded to ensure a more equitable distribution of medical resources across the country.
According to this ruling, parts of the National Health Act that provide for the so-called Certificate of Need have been declared unconstitutional.
This Certificate of Need was one of the most important mechanisms by which the government wanted to exercise greater control over the health industry.
Trade Union Solidarity explained that this would have increasingly given the state the power to determine which healthcare practitioners may practice where and which services may be provided.
“For healthcare practitioners, this ruling is a victory for freedom and professional independence, but also a win for every South African’s right to better healthcare,” it said.
