Board of Healthcare Funders of Southern Africa NPC v President of the Republic of South Africa and Another (2024/058172 ; 24/111209) [2025] ZAGPPHC 429 (6 May 2025)

Case Note

The case is styled as proceedings between the BOARD OF HEALTHCARE FUNDERS OF SOUTHERN AFRICA NPC and the PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA, with additional applications involving the SOUTH AFRICAN PRIVATE PRACTITIONERS FORUM. It is recorded in the GAUTENG DIVISION, PRETORIA of the High Court of South Africa, under CASE NO: 2024/058172, with an order date of 06 May 2025. This judgment is reportable and of interest to other judges, reflecting its potential significance in broader constitutional and administrative law contexts.

Reportability

This matter is reportable because it involves significant constitutional and administrative law issues that have far‐reaching implications for the reviewability of executive decisions. The court’s decision that the President’s act of assenting to and signing the National Health Insurance Bill is reviewable under the Constitution sets an important precedent. Its findings underscore that even high-level public executive decisions are subject to judicial oversight, reinforcing the accountability of decision makers in a democratic state.

Cases Cited

The judgment references earlier authorities including case number 1B11-2019, which supports the legal principles applied in determining the reviewability of executive decisions. Although the full citation details are not provided within the text, the reference underscores that precedents dealing with constitutional review and public power calibration have been considered in reaching the judgment.

Legislation Cited

Key legislative references in this judgment include provisions of the Constitution of the Republic of South Africa, particularly sections 79 and 84, which relate to the President’s powers and the lawmaking process. Additionally, the National Health Act (Act No. 61 of 2003) is cited in relation to the statutory framework governing healthcare financing and public health policy in South Africa.

Rules of Court Cited

The judgment incorporates reference to several rules of the Uniform Rules of Court. In particular, rule 6(5) is crucial as it frames the procedural arguments concerning the President’s obligation to produce the record. Rule 53 of the Uniform Rules of Court is also cited in connection with the production of the record relating to the impugned decision, ensuring transparency and adherence to fair procedural standards.

HEADNOTE

Summary

The judgment involves the review of the President’s decision to assent to and sign the National Health Insurance Bill, an act taken on 15 May 2024. Both the Board of Healthcare Funders of Southern Africa NPC and the South African Private Practitioners Forum challenged the decision, arguing that the matter ought to be subject to judicial review. The court examined the constitutional provisions and statutory instruments relevant to the lawmaking process and ultimately declared that the impugned decision is reviewable.

A detailed examination of the history of the National Health Insurance policy was undertaken. The court considered the evolution of public debate—from the 2011 Green Paper to the subsequent White Papers and the draft Bill—demonstrating that significant concerns regarding funding, constitutional validity, and procedural fairness had long been raised.

In addressing these issues, the court integrated its analysis of administrative law principles with the specific matters of statutory interpretation under the Constitution. The decision emphasizes that executive actions, even those involving high-level policy decisions like the National Health Insurance Bill, are subject to the rule of law and must adhere to proper procedural and substantive requirements.

Key Issues

The legal issues addressed in this judgment include whether the Gauteng High Court has jurisdiction to review the President’s decision to assent to and sign the National Health Insurance Bill and whether such decisions, despite being political, fall within the ambit of judicial oversight. The court also considered the necessity of producing a complete and accurate record of the impugned decision as mandated by the applicable rules of court.

Further, the judgment required clarification on whether the decision was a non-reviewable exercise of public power or one that directly impacted constitutional rights and administrative accountability. The interplay of separation of powers and the principles of transparency in the decision-making process also played a central role in the deliberations.

The court was also tasked with determining if a procedural misstep had occurred by not producing the impugned record, thereby potentially compromising the fairness of judicial review. These issues are of profound significance as they reinforce the principle that the actions of high-ranking public officials remain subject to judicial scrutiny.

Held

The court held that the Gauteng High Court does indeed have jurisdiction to review the matter and that the President’s decision to assent to and sign the National Health Insurance Bill is reviewable. It was determined that the decision, while informed by political considerations, does not possess the immunity typically associated with decisions that are entirely non-justiciable.

The judgment further ordered that the first respondent, the President, is obliged to furnish the record of the decision within ten calendar days. This remedial measure ensures that the process remains transparent and in accordance with procedural mandates.

In addition, the costs related to the application under rule 6(5)(d)(iii) were apportioned between the first and second respondents, with the requirement that one pay the other such that one may be absolved of further expenditure. This cost allocation reinforces the pragmatic aspects of judicial review in administrative law.

THE FACTS

On 15 May 2024, in the execution of constitutional obligations, the President assented to and signed the National Health Insurance Bill into law, following prolonged public consultations and extensive debates that had been ongoing for several years. The decision was formally announced with a proclamation published in the Government Gazette on 16 May 2024. This act was preceded by historical events including the publication of both a Green Paper in 2011 and White Papers in 2015 and 2017, which highlighted critical concerns regarding the Bill’s constitutionality, funding, and overall feasibility.

The Board of Healthcare Funders and the South African Private Practitioners Forum subsequently initiated proceedings seeking judicial review and to set aside the decision. Their applications were rooted in concerns that key issues related to funding, cost projections, and procedural adequacy had not been fully addressed, creating uncertainty about the viability and legitimacy of the National Health Insurance framework.

The impugned decision was challenged on the grounds that it was a procedural misstep, lacking the reviewable characteristics required for transparency and accountability under the Constitution. These facts collectively form the basis for the court’s detailed analysis of both jurisdictional and substantive matters within the context of administrative law.

THE ISSUES

The principal legal issue for the court was to determine whether it had the jurisdiction to review the President’s decision to assent to and sign the National Health Insurance Bill. This involved an examination of constitutional provisions and statutory duties to confirm that such high-level executive acts could indeed be subject to judicial oversight.

Another significant issue addressed was the question of whether the process of assenting to the Bill was entirely insulated from judicial review as a mere political exercise or whether it carried characteristics of an administrative decision that must comply with principles of transparency and fairness. This necessitated a close look at the interplay of constitutional provisions, legislative mandates, and the relevant procedural rules cited by the parties.

The court also had to resolve the contention concerning the production of the record of the impugned decision, a matter argued by the respondents to be superfluous. In tackling these issues, the court meticulously balanced respect for executive discretion with the imperatives of accountability within a constitutional democracy.

ANALYSIS

In its analysis, the court carefully considered the scope of judicial review as it applies to the exercise of executive power, particularly when such power impacts public policy. The court noted that the President’s decision, though a product of political deliberation, nevertheless must adhere to the constitutional mandate that any decision affecting the rights or interests of the public should be open to review. The application of rule 6(5) of the Uniform Rules of Court was central to this analysis, reaffirming that procedural safeguards must be observed.

The court’s reasoning integrated the historical context of the National Health Insurance policy debate, wherein multiple consultations and public submissions had clearly exposed the inherent uncertainties and potential incongruities in the decision-making process. This expanded analysis highlighted that judicial intervention was necessary not to undermine executive authority, but to ensure that proper procedures were followed and that public accountability was maintained.

Furthermore, the court underscored the necessity of producing a complete record for judicial inspection, drawing on established principles of administrative justice. The analysis confirmed that the absence of such a record would compromise the integrity of the review process and the ability of the courts to fully evaluate the legality of the President’s actions. In so doing, the court reconciled the demands of procedural fairness with the autonomy of the executive branch in effectuating statutory law.

REMEDY

The remedy provided by the court requires the President to furnish the complete record of the assenting and signing decision within ten calendar days. This measure is designed to ensure transparency and to facilitate a comprehensive judicial review of the decision-making process. The court’s order is a practical application of its supervisory role over executive decisions, reinforcing the system of checks and balances.

Additionally, the court ordered that the costs associated with the rule 6(5)(d)(iii) application be shared jointly and severally between the first and second respondents. This cost allocation serves both as a punitive measure for the procedural lapses and a means to cover the expenses incurred by the applicants, including those for legal counsel retained at scale C.

The remedy, therefore, not only addresses the immediate need for transparency but also provides a financial deterrent against procedural deficiencies that undermine the accountability of high-ranking public officials. It affirms that decisions affecting public welfare must be subject to thorough and fair judicial scrutiny, thereby preserving the integrity of the constitutional process.

LEGAL PRINCIPLES

This judgment reaffirms the principle that executive decisions, even those involving significant policy measures such as the National Health Insurance Bill, are subject to judicial review. The court established that the President’s actions, while informed by political considerations, cannot be exempted from the requirement to operate within the legal framework set out by the Constitution and guided by procedural fairness.

Another key legal principle highlighted is the necessity of transparency in administrative decision-making. The requirement to produce the record of the impugned decision is a practical manifestation of open governance and accountability, ensuring that decisions impacting public policy are conducted in a manner that is accessible to judicial scrutiny. This also reinforces the broader doctrine that no branch of government is entirely insulated from checks and balances.

A further principle involves the appropriate allocation of costs in cases where judicial review reveals procedural shortcomings. By ordering the first and second respondents to bear the costs, the court emphasized the need for accountability not only in the substance of the decision but also in the manner in which public policy is administered. These legal principles together serve to fortify the doctrinal link between transparency, judicial supervision, and the rule of law in South Africa.