Health Minister Zweli Mkhize says he is not concerned about the DA’s threat to take the draft NHI Bill to the Constitutional Court as it has been subjected to scrutiny by various constitutional experts and that the state law adviser has issued certification to confirm the constitutionality of the bill.  

“I have certification dated October and January 2018 and another dated March 2019. The opinion the DA seeks has already been sought. Parliament is at liberty to seek their own legal advice if needed,” Mkhize says in a statement.

DA leader Mmusi Maimane announced yesterday that the party is requesting Parliament to seek a comprehensive legal opinion on the Bill’s constitutionality. Warning that South Africans will be the main casualties of the NHI system if the Bill is passed in its current form, Maimane said the party was not satisfied that it will pass constitutional muster, particularly in terms of Schedule 4 of the Constitution that sets out the functional areas of concurrent national and provincial legislative competence.

“It appears that the NHI Bill proposes a system that provinces will not be able to opt out of. “Health services”, as defined, will be bought and determined at national level, with the Minister of Health effectively becoming the single authority over the health sector in the country. On face value, it appears that the Bill actively seeks to curtail the constitutionally granted shared power between national and provincial spheres of government, and we believe that the Bill, and the system that it proposes, is overly intrusive on the constitutionally enshrined rights of provincial legislatures to also legislate on matters relating to healthcare,” Maimane said. He added that if this possible constitutional breach is not investigated by Parliament, the Bill may spend years in the courts, sapping public funds while South Africans remain trapped without quality healthcare.

Other areas of the draft Bill the DA is opposed to include the establishment of the NHI Fund as a public entity or state-owned enterprise, the additional tax burden it will impose on South Africans and the removal of choice for patients to seek their own healthcare. The party says the fact that the Minister will have sole discretionary powers over the fund and can appoint the board that will oversee the fund, leave little room for adequate checks and balances.

“The Bill makes provision for investigative powers in cases of corruption and maladministration within the National NHI Fund Office, and not through any independent body. This fund will serve as just another SOE vulnerable to grand corruption at the expense of the nation’s entire health system,” Maimane observed.

 “The greatest tragedy of this Bill is that it will not in any way achieve universal healthcare for South Africa. Instead, it is bound to destroy the health system as we know it by fragmenting it, eroding provincial powers, centralising and nationalising healthcare, and establishing a multi-billion rand SOE that will be in the hands of the politically connected few,” Maimane concluded.

DA’s claims “unfounded”

In his statement, the Minister reiterated government’s position that NHI will benefit all and ensure equitable access to health services, by promoting the pooling of resources. He rejected Maimane’s claims as unfounded “and an effort to preserve the inequitable access to health services which by promoting the preservation of the privileges for a minority”.

“The Bill will not take away the concurrent powers of the provinces which are protected by the constitution. Provinces will continue to have concurrent powers in the management of health services under NHI. These powers and roles will be subject of discussions between national and provincial government in line with the health reforms. After all, the current powers of provinces were developed through consultations between national and provincial leaders that led to the promulgation of the National Health Act. The same process will be followed. Changing legislation is not unconstitutional. Changing circumstances will always ensure that the laws evolve to suit the needs of the country at each stage. Section 146 of the constitution guides us where there is no proper alignment between national and provincial legislation,” Mkhize said.

Referring to the costs of the proposed system that government wants to implement fully by 2026, Mkhize said future costs will be made public when they become available but gave the assurance that NHI will be implemented in a responsible manner that the country will afford.

“The NHI as a schedule 3 state entity has less powers, more limited than the other entities such as Eskom. Strong oversight will ensure good governance and transparency will ensure continuous public scrutiny over its financial activities as such an entity receives funds from the discus and is not permitted to take risks and participate in speculative and unsecured borrowing and lending,” Mkhize explained.

He rejected Maimane’s claims that the NHI will lead to nationalisation of healthcare, the removal of citizen’s choice of healthcare providers for citizens and adding to South African’s tax burden “as wild and unfounded that should be rejected with contempt”.

The Minister says patients will still be able to register their preferred healthcare provider under the NHI and that private practices, pharmacies and hospitals will NOT be nationalised.

“Those who wish to serve as providers for the NHI will apply for accreditation and the NHI will reserve the right to procure services from private providers as well as the public sector facilities. In the current phase, discussions are advanced to enlist private family practitioners to support the NHI. Their positive response is overwhelming,” Mkhize noted.

 NHI will ensure one health system for one country with national and provincial departments cooperating in a coordinated manner. What DA is trying to achieve is to behave as though one province can be administered as an independent state. We invite the DA to make inputs in the current national process as they are represented in government. I assure them that the consultative process is a genuine effort to shape the best system for our country,” Mkhize concluded.

NHI Bill batters healthcare companies

 Meanwhile JSE-listed companies in the healthcare sector continue to take a battering following the tabling of the draft NHI Bill in Parliament last week. In the past week, JSE-listed healthcare companies are reported to have lost around R14 billion in value with Discovery Health taking the biggest hit, losing around R9 billion since the release of the details of the Bill last Thursday. The Bill makes no provision for medical scheme administrators as the NHI will be administered by a central fund and relegates medical schemes to providing only cover for treatments not included in the NHI’s basket of services. According to Business Day, Medscheme operator AfroCentric Health and Momentum also took a hammering losing R104 million and R327 million respectively, while other healthcare companies such as Aspen, Netcare, Mediclinic and Dischem also traded lower.