The legal team of Health Minister Aaron Motsoaledi has firmly rejected allegations that the National Health Insurance (NHI) Act was passed without meaningful public participation.
On Tuesday, 5 May 2026, the Constitutional Court (ConCourt) heard arguments in a legal challenge to the NHI scheme.
At the heart of the dispute is whether Parliament fulfilled its constitutional duty to ensure meaningful public participation during the law-making process.
The legal action was brought by the Board of Healthcare Funders (BHF) and the Western Cape government.
Motsoaledi focuses on NHI objective
Advocate Kameshni Pillay, representing Motsoaledi and the director general of the Department of Health, urged the ConCourt to consider the broader objective of the NHI, which is to provide universal access to healthcare services.
She argued that South Africa’s current dual system – split between public and private healthcare – is structurally unequal and unsustainable.
“The result is that a minority of the population benefits from a well-resourced private sector, while the majority depend on an under-resourced public system,” Pillay said.
Pillay also pushed back against claims that the public participation process was rushed or inadequately handled, stressing that engagement took place over several years.
“This wasn’t a rushed process; it wasn’t an emergency process. It was a four-and-a-half-year process, starting before Covid and culminating in 2023.”
Parliament details extensive public participation process
Advocate Ngwako Hamilton Maenetje, representing parliament, told the court that both the National Assembly and the National Council of Provinces (NCOP) undertook extensive public participation processes.
He argued that more than 350 000 written submissions alone were received during the legislative process.
“All of the comments were considered and informed the legislation that parliament ultimately adopted,” Maenetje said.
“There’s no ignoring submissions,” he added.
Maenetje further explained that public hearings were conducted in all nine provinces and were made accessible through live broadcasts.
He said parliament also made targeted efforts to engage key stakeholders, including the BHF.
According to him, even the BHF’s own court papers acknowledged the scale of consultation.
“The challenge is really not whether members of the public were heard, because they evidently were, and it is not about whether the views of the public influenced the legislative process.
“Indeed, the overwhelming sentiment throughout the public participation process was support for the NHI Bill.”
Watch the proceedings below:
Maenetje argued that the dispute is less about procedural fairness and more about disagreement with the final legislation itself.
“In assessing whether parliament fulfilled its obligation, the court considers the cumulative consequence of the entire National Assembly or NCOP process – not nitpicking different stages – to determine whether, in all the circumstances, a reasonable opportunity was afforded to members of the public and all interested parties to know about the issues in respect of the NHI Bill and to have an adequate say in a manner capable of influencing the decision to be taken.”
NHI costs
The court also heard an argument on whether the public was given sufficient detail regarding the costs of implementing the NHI scheme.
Maenetje said parliament had required that feasibility and financial impact assessments be conducted as part of the legislative process.
“In this case, from the information provided, the public understood that this was a radical intervention which would have cost implications and that there would have to be additional funding.
“The issue is whether you had a number, and that is what they say: sufficient information was not granted.”
He claimed that the World Health Organization (WHO) has acknowledged the difficulty of producing precise cost estimates for a reform of this scale.
As a result, Maenetje said, financial planning for the NHI was approached in phases aligned with implementation.
“You can cost those steps year-by-year until you arrive at the position to implement NHI fully, and you know that that date is far in advance, decades away.”
