REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 2024/058172
(I) REPORTABLE : YES
(2) OF INTEREST TO OTHER JUDGES: YES
(3) REVIS£)
06 May2025
Date
In the matter between:
BOARD OF HEALTHCARE FUNDERS OF
SOUTHERN AFRICA NPC
and
PRESIDENT OF THE REPUBLIC OF
SOUTH AFRICA APPLICANT
FIRST RESPONDENT
MINISTER OF HEALTH
In the matter between:
SOUTH AFRICAN PRIVATE PRACTITIONERS
FORUM
and
PRESIDENT OF THE REPUBLIC OF
SOUTH AFRICA
MINISTER OF HEALTH
MINISTER OF FINANCE
NATIONAL TREASURY
SUMMARY 2
SECOND RESPONDENT
CASE NO: 24/111209
APPLICANT
FIRST RESPONDENT
SECOND RESPONDENT
THIRD RESPONDENT
FOURTH RESPONDENT
Constitution --Section 167(4)(e) -Jurisdiction -Matter does not fall within the exclusive
jurisdiction of the Constitutional Court -High court has jurisdiction to adjudicate matter.
Constitution -Section 79 -Section 84 --President 's power to assent to and sign the
National Health Insurance Bill -Public power -Procedural step in lawmaking process -
Not policy-laden or political act or engages separation of powers -Reviewable -Rule 53
of the Uniform Rules of Court applicable.
Rule 6(5) of the Uniform Rules of Court -Point of law raised -Court has jurisdiction to
adjudicate matter -President's decision is reviewable -President obliged to furnish a
r<:>aor.d.
ORDER
1. The Gauteng High Court has jurisdiction to entertain the matter;
2. The President's decision to assent to and sign the National Health Insurance Act is
reviewable;
3
3. The first respondent is ordered to furnish the record of the impugned decision within
ten ( 10) calendar days of this court order; and
4. The first and second respondents are ordered to pay the costs related to the rule
6(5)(d)(iii) application, jointly and severally, the one paying the other to be
absolved, including the costs for the employment of three counseJ on scale C.
JUDGMENT
TWALAJ
Introduction
[l] On 27 May 2024, the Board of Healthcare Funders NPC ("BHF') instituted
proceedings to review and set aside the decision of the President to assent to and
sign the National Health Insurance Bill 1 ("NHI BILL") under case number
058172/2024. On 1 October 2024, the South African Private Practitioners Form
("SAPP F'), under case number 24/ 1 11209, also instituted proceedings to review and
set aside the decision of the President to assent to and sign the NHI Bill and to
declare the National Health Insurance Act2 ("NHI ACT') invalid and direct the
President to reconsider the NHI Bill. The impugned decision of the President to
assent to and sign the NHI Bill into law was taken on 15 May 2024.
(2] In response to both the applications of BHF and SAPPF, the President and the
Minister of Health filed a notice in terms of rule 6(5) of the Uniform Rules of Court
and respectively raised similar points of law; that this Court lacks jurisdiction to
adjudicate these proceedings; that the decision sought to be reviewed is incapable of
review; that if it is capable of review, that no record in terms of rule 53 of the
Uniform Rules of Court needs to be produced and if it is reviewable and a record
needs to be produced . the President has no obligation to do so.
1B11-2019.
2 20 of 2023.
4
[3] It is noteworthy that the third and fourth respondent s did not participate in these
proceedings . Since the President and the Minister of Health have raised the question
of law against both cases of the BHF and SAPPF, it was directed by the Deputy
Judge President of this division that both cases be heard together -hence this
judgment will cover both cases. Furthermore, in this judgment, I propose to refer to
BHF and SAPPF as the applicants and to the first respondent as the President and
the second respondent as the Minister. Where necessary, I will refer to the applicants
by their acronyms as indicated above and to the President and the Minister as the
respondents.
Description of the Parties
[ 4] The one applicant is the Board of Healthcare Funders of Southern Africa NPC
("BHF'), previousl y called the Representative Association of Medical Schemes
("RAMS'') under the Medical Schemes Act. 3 BHF is a non-profit company registered
and incorporated as such in South Africa with its principal place of business at
Lower Ground Floor South Tower, 160 Jan Smuts Avenue, Rosebank ,
Johannesburg.
[5] The other applicant is the South African Private Practitioners Forum ("SAPPF '), a
voluntary association of private practitioners who work in the private health care
sector in South Africa, with its head offices at Unit 16, Northcliff Office Park, 203
Beyers Naude Drive, Northcliff, Johannesburg.
[6] The first respondent is the President of the Republic of South Africa ("the
President"), the Head of the Executive of Government whose office is at the Union
Buildings , Government Avenue, Pretoria. I will also use the pronoun "he" when
referring to the President since the sitting President is a mate.
3 Act No. 72 of 1967.
5
[7] The second respondent is the Minister of Health ("the Minister"), the Cabinet and
Executive member in charge of the National Department of Health whose office is
at Dr AB Xuma Building, 1112 Voortrekker Road, Pretoria.
[8] The third respondent is the Minister of Finance, the Cabinet and Executive member
in charge of the department of National Treasury, with offices at 40 Church Street,
Old Reserve Bank Building, 2nd Floor, Pretoria.
[9] The fourth respondent is the National Treasury, a department that is under the
control and supervision of the Minister of Finance, which advises on fiscal policy
and public finances, financial relations and expenditure planning and priorities. It
further manages the annual budget process and provides public finance management
support and manages government 's assets and liabilities. It has its office at 40
Church Street, Old Reserve Bank Building, 2nd Floor, Pretoria. Both the third and
fourth respondents are not participating in these proceedings .
Factual Background
[ 1 OJ On 15 May 2024, in the execution of his constitutional obligations in terms of section
84(2)(a) read with section 79 of the Constitution of the Republic of South Africa,
1996 ("the Constitution"), the President assented to and signed into law the NHI Bill
and a proclamation was published in the Government Gazette4 on 16 May 2024. The
decision of the President to sign the Bill was preceded by a protracted history since
at the various stages of the Bill there has been grave concerns raised by members of
the public and other stakeholders regarding its constitutionality.
[11] On 12 August 2011 the Green Paper titled 'National Health Insurance in South
Africa'5 announced the introduction of a system of health care financing in South
Africa. This was followed by the publication of a White Paper titled 'National
4 Proc R4826 GG 50664, 16 May 2024.
5 National Health Act (61/2003): Policy on National Health Insurance, GN 657 GG 34523, 12 August 2011.
6
Health Insurance for South Africa: Towards Universal Health Coverage'6 on 11
December 2015. The White Paper recorded that 150 written submissions were
received from members of the public in response to the Green Paper and that the
national and provincial road shows had solicited feedback from over 60 000 people
over a period of four years.
[ 12] In 2015 SAPPF made submissions on the 2015 White Paper noting that several
crucial aspects of the National Health Insurance ("NHI") were unclear such as its
funding and affordability; the benefits to be covered; the role of medical schemes;
the determination of service provider reimbursement; and the means of addressing
the woeful state of government health facilities. SAPPF also pointed out that the
costing models by Treasury relied upon had not been updated since the 2011 Green
Paper.
[13] On 7 March 2017, the Davis Tax Committee ("DTC'), whkh was established by the
Minister of Finance in 2013, published a report.7 As part of its mandate, the
committee was requested to evaluate the proposal to fund the NHL The DTC report
raised concerns, among others; that there is a revenue shortfall of about R 71.9 billion
which is contingent on a real growth of 3.5% of GDP and if the growth rate is at 2%,
the shortfall would be R108 billion or more. There was uncertainty and a lack of
common understanding of how the NHI will be implemented and operate given the
magnitude of the proposed reform.
[14] Further, the lack of implementation detail made it difficult to estimate the potential
economic benefits and costs. The DTC report stated that the magnitudes of the
proposed NHI fiscal requirement are so large that they might require trade-offs with
other laudable NDP programmes such as an expansion of access to post school
education or social security reform. Given the current costing parameters outlined
6 White Paper on National Health Insurance, GN 1230 GG 39506, 11 December 2015.
7 The Davis Tax Committee Financing a National Health Insurance/or South Africa, 7 March 2017.
7
m the White Paper, the proposed NHI in its current format is unlikely to be
sustainable unless there is sustained economic growth.
[ 15] On 30 June 2017, the revised and finalised White Paper titled 'National Health
Insurance for South Africa: Towards Universal Health Coverage '8 was published.
Although there were submissions on the 2015 White Paper and the DTC report, the
2017 White Paper substantially relied on the cost projections of the 2011 Green
Paper. On 21 June 2018 the National Department of Health published the draft NHJ
Bill which deferred the critical aspect of the costing and funding of the NHI to a
later stage or date.
[16] SAPPF noted in its submissions on 20 September 2018 that certain issues that were
raised during the Green and White papers have not been addressed in the NHI Bill
and these included: the impact of the establishment of the NHI Fund on existing
administrative structures and personnel in the health care sector; the relationship
between the NHI Fund and medical schemes or private health insurance; the scope
of health services covered by the NHI Fund; and the wide discretionary powers
afforded to the Minister of Health.
[ 17] On 9 November 2018, the Acting Director-General of the Treasury raised concerns
with the Advisor to the Presidency on NHI regarding the constitutionality of the
draft NHI Bill. Amongst the concerns raised was that several discussions were held
between the Minister of Finance and the Minister of Health with the State Law
Advisor and several amendments were made to the draft NHI Bill which allowed
the Minister of Finance to support the publication of the draft Bill for public
comment.
[ 18] However, lamented the Acting Director-General, without any consultation with the
Treasury or Minister of Finance, the Bill has now been substantively amended and
the previous amendments effected to satisfy the Treasury's concerns around the
8 National Health Insurance for South Africa: Towards Universal Health Coverage G N 627 GG 40955, 30 June 2017.
8
intergovernmental financing system have been unilaterally removed. He also
cautioned of constitutional challenges relating to the functions and funding of
provincial health departments as well as other interest groups.
(19] The major problems listed by the Acting Director-General for Treasury were the
inadequacy of detail on financial implications including the cost of NHI itself and
the NHI Fund, the shifting of the health function from provincial to national level of
government and the restricted complementary role envisaged for medical schemes.
Further, that the NHI Bill infringes on the powers of the Minister of Finance and
appears to override legislation dealing with the financial management of public
funds. It warned that there was insufficient information on costs of the NHI itself
and the cost of the Fund.
[20] The Minister of Health introduced the NHI Bill in the National Assembly on
7 August 2019 and a call for public comments was issued on 30 August 2019 which
closed on 29 November 2019. Between 26 October 2019 and 24 February 2020, and
18 May 2021 and February 2022, nine hundred and sixty-one , and four hundred and
forty-one oral submissions were heard, respectively. There were over three hundred
and thirty-eight thousand written submissions indicated as having been received by
the National Assembly .
(21] SAPPF was amongst those entities who made submissions and raised its concerns
of the paucity of detail regarding the costing and funding of NHI and how the
required funding will be determined. Further, it noted that the process for drawing
up the budget of the NHI Fund, and aspects of the implementation of the NHI were
relegated to regulations. The NHI Bill centralised power in the executive and gave
the Minister of Health extensive regulation -making powers whilst some key terms
in the NHl Bill were either undefined or defined overly broadly or unclearly.
[22] The Parliamentary Legal Advisor and the State Law Advisors , respectively ,
presented two opinions regarding the issues raised during the deliberations on the
9
NH1 Bill to the Portfolio Committee on Health on the 15 March 2023. The
Parliamentary Legal Advisor noted his concern about the constitutionality of the
NHI Bill if medical scheme users suffer a reduction in access to health care as a
result of the full implementation of the NHI and that it could raise a constitutional
challenge based on section 27 of the Constitution.
[23] The State Law Advisors accepted that in order to pass constitutional muster the NHI
Bill is required to be reasonably capable of achieving the purpose of achieving
sustainable and affordable access to health care. However, the State Law Advisors
opined that the combined constitutional obligation of section 27 of the Constitution
and binding international obligations, which must be given effect to, are key to
motivating the rationality of the Bill. On 13 June 2023 the NHI Bill was passed with
minor amendments , by the National Assembly and transmitted to the National
Council of Provinces for concurrence.
[24] On 9 November 2023, the National Department of Health presented a report9 in
response to the concerns raised by stakeholders. It noted that the Bill is based on
section 27 of the Constitution as foundation -therefore, it cannot be
unconstitutional. On 6 December 2023 the NHl Bill was passed by the National
Council of Provinces notwithstanding that the Department of Health had accepted
that changes needed to be made and was sent to the President.
[25] On 5 December 2023 BHF made formal submissions to the President expressing its
reservations about the constitutionality of the NHI Bill. The letter to the President
raised concerns about the lack of accountability since the NHI Bill defers critical
issues and the Lack of detail undermines the NHI Bill's effectiveness and hinders
oversight from Parliament and the public. The NHI Bill fails to explain how the NHl
will be funded which raises a serious concern since the economic growt11 or t11e
country has been slow -thus making it financially impractical.
9 Stakeholde rs Response to the National Health Insurance Bill (811B-2019).
10
[26] BHP noted that there was a lack of detailed coverage and pricing guidance since the
NHI Bill fails to identify the benefits covered by the NHI Fund and provides no
precise mechanisms to determine the price of a benefit and the quantum of
compensation payable to the healthcare providers. The legislative process did not
allow for meaningful public consultation. Although numerous public submissions
were made, significant concerns raised were not addressed. Presenters were not
afforded sufficient time to express their concerns and there was minimal meaningful
engagement with the private sector.
[27] Further, the NHI Bill includes undefined terms and lacks clarity whilst delegating
significant powers to the Minister of Health to create regulations without the
legislature's scrutiny or oversight. It will fail to fulfil constitutional obligations of
the government under section 27(2) of the Constitution which mandates reasonable
measures for the progressive realisation of healthcare rights. There is the potential
risk of regression in healthcare services and could worsen healthcare access and
quality.
[28] BHP noted further that the NHI Bill impedes access to established healthcare
services, particularly for those opting to join medical schemes to avoid unreliable
public healthcare. Moreover, its mandatory nature infringes on individual autonomy ,
freedom of association, self-determination, and security. It further threatens
employment in the private healthcare sector.
[29] Realising that the National Council of Provinces has passed the NHI Bill without
making any amendments , on 11 December 2023 BHF, through its legal
representatives submitted an analysis of the main reason why the NHI Bill was
unconstitutional. Some of the concerns raised by BHF was the failure of the NHI
Bill to address the concerns raised in the submissions. lt noted that the NHI Bill
suffers from critical deficiencies that render it susceptible to constitutional
challenges. The failure of the NHI Bill to specify covered benefits and determine
11
product prices leaves crucial aspects in the hands of unelected officials without a
clear decision-making framework.
[30] On 12 December 2023, Momentum Health Solutions petitioned the President not to
assent to and sign the NHI Bill and to refer the proposed law back to the National
Assembly. The petition alerted the President to several provisions in the NHI Bill
which violated constitutional provisions and that there was a lack of effective public
consultation during the legislative process in the National Assembly and the
National Council of Provinces.
[31] Concerned that the NHI Bill has now been sent to the President for his consideration
and assent, on 18 December 2023 the South African Health Professionals
Collaboration ("SAHPC') to whom SAPPF is a member, addressed correspondence
to the President petitioning him to refer the NHI Bill back to the National Assembly
for reconsideration of its constitutionality. It noted that the President performs an
important checking role in the legislative process to ensure that the laws that he
assents to, and signs conform to the Constitution.
[32] Further, it noted that the legislative process followed in respect of the NHI Bill was
procedurally unfair, in that valid constitutional concerns repeatedly raised by
stakeholders to the National Assembly and National Council of Provinces have been
ignored and disregarded. That the limitation of medical schemes' permissible
offering to only coverage complementary to NHI-funded offerings created a risk for
the viability of the NHI Fund in that it shifted the responsibility of providing care
for a large number of critically ill or high-risk patients from private medical aid to
the state.
(33] It noted further that the NH1 Bill undermined section 25 of the Constitution in that
health care practitioners would effectively be deprived of all or part of the value of
their practices as the transition is made from an environment of private sector
medical scheme reimbursement for services to a national pricing system. It
12
undermines section 27 of the Constitution and constituted a retrogressive measure
in that it unjustifiably impaired existing rights to health care -thus it contravene s
the state's obligation not to impair the existing enjoyment of constitutional rights.
[34] On 4 January 2024 Discovery Medical Scheme ("Discovery") requested the
President to refer the NHI Bill back to the National Assembly for reconsideration
because the current form of the NHI Bill was unconstitutional and incapable of
achieving universal healthcare coverage or important objectives of the NHI Bill
itself. Like the other stakeholders, Discovery raised serious concerns about the
affordability of NHI, shortcomings of a single funder model which poses significant
fiscal and systemic risks, the uncertain role of medical schemes, the infringement of
constitutional rights and the right to access healthcare services under section 27 of
the Constitution.
[35] The Solidarity Trade Union ("Solidarity ") petitioned the President on 23 January
2024 to refrain from assenting to and signing the NHI Bill because it was
unconstitutional as it contravenes specific constitutional provisions regarding the
preparation and introduction of money Bills. The preparation and introduction of
money bills is reserved specifically for the Cabinet member responsible for the
national financial matters, according to the Constitution. It noted further that the
NHI Bill was irrational and fails to meet the constitutional mandate of reasonable
legislative measures within available resources.
[36] Discontented with the announcement that the President would assent to and sign the
NHI Bill, on 14 May 2024 the SAHPC published a statement expressing its profound
disappointment that the unworkable NHI Bill would be signed into law. The Second
Presidential Health Compact which followed the First Presidential Health Compact
which was launched in 2019, which was supposed to be signed on 15 August 2024,
was not signed by the stakeholders , including Business Unity of South Africa
("BUSA"), South African Medical Association ("SAMA") and SAPPF on the bases
that it explicitly endorses the NHI Act in its current form. However, the Second
13
Compact was eventually signed on 22 October 2024 by mostly entities linked to the
Department of Health and labour union.
[37] On the eve of signing the NH[ Bill on 14 May 2024 the Western Cape Government
urged the President not to sign the NHI Bill into law. It noted that it was deeply
concerned with the Bill in its current form as it requires substantial amendments. It
stated that the Bill as it stands was unconstitutional and will prove to be unaffordable
and impractical. It will not achieve its purpose of Universal Health Coverage which
the citizens deserve. It was further noted that correspondence has been sent to the
President on 8 December 2023 and 24 January 2024 but there was no courtesy of a
reply.
[38] Dissatisfied with the treatment received from the President , on 27 May 2024 BHF
launched this application to review the decision of the President to assent to and sign
the NHI Bill into law. Similarly, SAPPF launched its own application to review the
decision of the President on 1 October 2024
[39] In response to both applications , the President and the Minister filed their notices to
oppose the applications and the notice in terms of rule 6( 5)( d)(iii), thereby raising a
question of law in the following terms:
39.1 that this Court is not clothed with the necessary jurisdiction to adjudicate this
matter since section 167( 4 )( e) provides that only the Constitutional Court
may decide that the President has failed to fulfil a constitutional obligation.
39.2 if the Court finds that it has the necessary jurisdiction to hear the matter, and
since the review relief sought by the applicants before this Court is in terms
·of rule 53 of the Uniform Rules of Court, the questions of law are:
39.2.1 whether assent and signature by the President of a Bill is capable of
review;
39.2.2 if assent and signature by the President of a Bill is capable of review,
whether rule 53 of the Unifonn Rules of Court finds application to
such a decision; and or
14
39.2.3 if rule 53 of the Uniform Rules of Court is applicable , then whether
the President is obliged to produce a record of his decision.
Submissions of the Parties
[ 40] The respondents submitted that this court does not have the necessary jurisdiction to
hear this matter since the challenge is about the failure of the President in fulfilling
his constitutional obligation. It is trite, so it was contended , that a challenge where
the President is alleged to have failed to comply with his constitutional obligations,
only the Constitutional Court has the necessary jurisdiction to determine whether
that is so in terms of section 167(4)(e) of the Constitution.
[ 41] The respondents say that the President derives his powers to assent to and sign a Bill
from the Constitution. The assent to and signature to a Bill is the President's
constitutional obligation and can only be executed by the President or Acting
President. It is agent-specific and therefore it is one of the obligations of the
President which, when it is a!Jeged that it has been breached, the determination of
that breach falls within the exclusive jurisdiction of the Constitutional Court. Since
it is asserted by the applicants that the President has failed to fulfil its obligation in
terms of section 79 and 84 of the Constitution , then it engages the provisions of
section 167(4) of the Constitution, and it triggers the exclusive jurisdiction of the
Constitutional Court.
[ 42] The obligation imposed on the President in terms of section 79 to assent to and sign
a Bill, so the argument went, is at the tail-end of the legislative process and is agent
specific since it is expressly imposed on the President alone and not Parliament or
any other organ of state. As the assertion of the applicants is that the President failed
to properly exercise his constitutional power under section 79( l) read with sections
83(b) and 84(2)(b) of the Constitution before assenting to and signing the NHI Bill,
it is only the Constitutional Court that has the requisite jurisdiction to hear the matter
15
for all the constitutional obligations of the President under these sections implicate
section 167(4) of the Constitution .
[43] The respondents contended further that the fulfilment of the President 's obligations
in terms of section 79 involves the exercise of a subjective discretion and an attempt
to review that decision in the high court has very significant separation of powers
implications. It is up to the President alone as to how he goes about ascertaining
whether he has reservations about the constitutionalit y of the Bill and whether to
refer it back to the National Assembly or to the Constitutional Court. A challenge
on all these considerations falls within the remit of the Constitutional Court alone.
[ 44] Although jurisdiction is determined on the basis of the pleadings and not the
substantive merits of the case, in determining whether the Constitutional Court's
exclusive jurisdiction is engaged in terms of section 167(4)(e) is not a superficial
function of pleadings merely alleging the President's breach of a constitutional
obligation. But more is required, though the starting point is the pleadings. By using
'must' in the provisions of section 79 of the Constitution , constitutional obligations
are created for the President and a challenge to the fulfilment of these constitutional
obligations by the President engages the provision s of section 167 of the
Constitution and can only be determined by the Constitutional Court.
[ 45] It is immaterial , so the argument went, whether the review of the President 's decision
is based on its legality or rationality , whether he took the steps in terms of section
79 and whether he failed to take into account the submissions of stakeholders. All
these contentions demonstrate that the President failed to fulfil his constitutional
obligations as required and to comply with his constitutional obligation to act
rationally when fulfilling his obligations in terms of section 79 of the Constitution.
[ 46] If this Court is persuaded to assume jurisdiction, so it was contended , it will set a
precedent for every person, juristic or individuals , who are well-resourced and
disgruntled with legislation to bring a review in the High Court. Such an application
16
may be entirely without merit and the applicant may go on a fishing expedition
relying upon rule 53 in an attempt to make out an arguable case. The applicants have
failed to demonstrate a reviewable flaw in the President's decision making yet they
seek to bring a legislative process to address the healthcare needs of the entire
population to a halt.
[ 4 7] Should the Court find that it has the requisite jurisdiction to determine this case, so
it was contended , the conduct of the President in assenting to and signing the NHI
Bill is not reviewable. This is so because the assent to and signature of the NHI Bill
is explicitly excluded from the definition of administrative action and the President
is not one of the listed entities and or organs of state whose administrative actions
are reviewable. Administrative action does not include the executive powers or
functions of the National Executive including the powers or function referred to in
sections 79 and 84 of the Constitution.
[ 48] Although the President considers information and makes assessment of it before he
reaches a conclusion , so it was contended , his doing so is not in the context of an
administrative decision that could be the subject of a review. It is the exercise of his
original constitutional powers that is subject to no constraint but that is listed in the
Constitution itself. The powers of the President to assent to and sign a Bill may be
subject to constitutional constraint and discipline , but not through the modality of a
review process.
[ 49] If the Court finds that the decision of the President is reviewable , so the argument
went, the decision of the President is not subject to the provision s of rule 53. If the
Court finds that rule 53 is applicable, then the respondents contend that the President
is not obliged to produce the record of the decision. This is so because this case does
not concern an executive function in the traditional sense but rather the exercise of
an original power conferred upon the President as the Head of State.
17
(50] Section 173 of the Constitution does not empower Courts to do whatever they want
at the instance of the litigant. For section 173 to avail a litigant, so it was argued, the
litigant must properly formulate or plead its case. There is no pleaded case by the
applicants which sought the production of the record of decision from the President
in terms of section 173. The development of the common law has not been sought
by the applicants to oblige the President to produce the record of decision in light of
section 173 or to declare that the record of decision is due in terms of section 173.
(51] The applicants say that the constitutional obligations complained of which were not
fulfilled by the President when assenting to and signing the Nill Bill into law are
not borne by the President alone but rather shared with the other branches of
government. The President is part of and plays a complementary role in the law­
making process. The President is the third level and the final stage of making the
Bill into law, after the National Assembly ("NA") and the National Council of
Provinces ("NCOP") has passed the Bill -hence the President's power to assent to
and sign a Bill is part of the legislative process and it is not agent-specific since he
performs this obligation collaboratively with the NA and the NCOP.
(52] The applicants contended further that the President's assent to and signing the NHI
Bill does not raise a sensitive political matter or impinge upon aspects of the
separation of powers as it involves the court considering whether the President duly
performed a legal assessment rather than a political or policy-laden one. When
assenting to and signing a Bill, the President exercises a public power which is
subject to constraints imposed by the Constitution and the rule of law.
(53] According to the applicants, section 172 of the Constitution confers jurisdiction on
the High Court to decide constitutional matters including determining the
constitutional validity of any conduct of the President. The review, so it is
contended, is directed at the decision of the President before assenting to and signing
the NHI Bill which is whether he had any reservations before he assented to and
18
signed the NHI Bill. It is the manner in which the President exercised the public
power when he assented to and signed the NHI Bill which is in issue.
[54] The President's powers and duties under section 84(2) read with section 79 of the
Constitution do not involve a discretionary or political act. It is a procedural step in
a much larger law-making process involving the other government branches. The
President's decision to assent to and sign the Nill Bill is therefore, so it is contended,
solely based on a legal determination and does not present sensitive political
questions over which the Constitutional Court should exercise exclusive jurisdiction
to preserve comity with the elected branches of government.
[55] The applicants say that the President violated his constitutional duty by failing to
scrutinise the constitutionality of the NHI Bill and to refer it back to Parliament when
he assented to and signed it into law. The President's power is coupled with a duty
which does not arise from a single constitutional provision but from the interlinking
constitutional duties imposed by section 84(2) as read with section 79, section 83(b)
and section 7(2) of the Constitution.
[56] Further, so say the applicants, the President's conduct in assenting to and signing
the NHI Bill into law was for an ulterior purpose or on the basis of irrelevant
considerations that tainted the decision with irrationality. The president followed an
irrational procedure in deciding to assent to and sign the NHI Bill because he ignored
information that was materially relevant to the decision and the NHI Bill was
therefore irrational because the legislation has patent constitutional defects.
[57] The President's power is not untrammelled and therefore he may not conduct
himself in way that is free of particular constitutional constraints , or which ignores
them when brought to his attention. Section 79 of the Constitution requires lhe
President to scrutinise the Bill and to decline to assent to and sign it if he has
reservation about its constitutionality which reservations may arise from
submissions that are placed before him. If the President does not exercise the power
19
in accordance with the limits imposed upon it by the Constitution or law, then such
conduct is reviewable under the principle of legality.
[58] The applicants say this case does not concern the failure of the President to fulfil a
constitutional duty that only the Constitutional Court has jurisdiction to adjudicate,
but it is whether the President exercised his power in compliance with the duties
imposed upon him by the Constitution. Even if the grounds of review implicate a
constitutional obligation, so it was contended, it is not an obligation of the kind
envisage in section 167 ( 4 )( e ). What is for determination by this Court is whether the
President 's conduct complied with the rule of law.
[ 59] The rule oflaw requires that the exercise of public power by the executive and other
functionaries should not be arbitrary. Further, so the argument went, the decision
must be rationally related to the purpose for which the power was given, otherwise
they are in effect arbitrary and inconsistent with this requirement. This include the
procedure followed in reaching a decision which should be capable of leading to the
attainment of the purpose for which the power was conferred. The exercise of the
President 's power under section 79, so it was contended , does not raise politically
sensitive issues or impinge upon the separation of powers.
[60] The applicants say that, in terms of section 79 of the Constitution , the President
performs his duties to assent to and sign a Bill not as a specific agent, which would
then engage the exclusive jurisdiction of the Constitutional Court, but as part of the
legislative process. Thus, the challenge is whether the President is said to have
exercised some or other power in a manner that conflicts with constitutional
principles , such as the rule of law, binding on all persons vested with public power.
The President has a duty not to assent to and sign a Bill which is inconsistent with
the Constitution.
[61] Further, the applicants contend that section 84 of the Constitution confers the power
upon the President to assent to and sign a Bill or, if he has reservations about its
20
constitutionality, he must refer it back to Parliament for reconsideration or to the
Constitutional Court. The powers are coupled with duties upon the President to use
them in the requisite circumstances to fulfil the constitutional purpose which is to
ensure laws that are constitutional. The duty imposed on the President is to make an
assessment as to the constitutionality of the Bill in accordance with legal criteria and
not a political or policy-laden assessment.
[62] The President 's power to assent to and sign a Bill constitutes , so the argument went,
a public power that provides scope for the Court to intervene through a review. The
power is strictly controlled by the Constitution and is subject to minimum
requirements that the President must meet in the exercise of this power which create
the scope for the Court to scrutinise whether the requirements were met, and the
power was properly lawfully and rationally exercised. Clearly, so it was contended ,
the powers of the President under section 84 warrants judicial scrutiny through
review as it is well established that any exercise of public power is subject to the
Constitution and the rule of law.
[63] The applicants say that whatever the President does, must be in accordance with
the Constitution and the law. All exercises of pub! ic power are justiciable , and at a
minimum must be lawfully and rationally exercised. Since the President 's powers
to assent to and sign the Bill are strictly controlled by the Constitut ion, so it was
contended , the exercise of the President's power outside the limits imposed by the
Constitution is therefore reviewable. The President has to satisfy himself that he
has no reservations about the constitutionality of the Bill before signing it into law.
[64] The general applicable procedure for reviews is, so the argument went, once an
applicant has elected to bring their review in terms of rule 53, it is entitled to the
record of decision. This entitlement is automatic and does not depend on Lhe merits
of the review. The President is obliged to make the record available as it is not only
for the benefit of the applicants but also essential to enable the Court to fulfil its
21
function to conduct a thorough and informed review of the impugned decision. The
President has offered no compelling reasons for withholding the record in this case.
[ 65] The applicants say the record is for the benefit of both the applicants and the Court
since it is the best available documentary evidence of the decision-making process
and the lawfulness thereof, and its production thus ensures that the review
application can be adjudicated in a proper, fair and constitutional manner. The record
of decision also serves the constitutional imperatives of accountable and transparent
public decision-making. The provision of the record of decision, so it was
contended, will shed light on the reasoning behind the decision and refute after the
fact justifications.
Legal Framework
[66] It is necessary at this stage to restate the provisions of the Constitution which are
relevant for the discussion that will follow which state the following:
"Section 7 Rights
(I) This Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the
rights of all people in our country and affirms the democratic values of human
dignity, equality and freedom.
(2) The state must respect, protect, promote and fulfil the rights in the Bill of Rights.
(3) The rights in the Bill of Rights are subject to the limitation s contained or referred
to in section 36, or elsewhere in the Bill.
Section 79 Assent to Bills
(1) The President must either assent to and sign a Bill passed in terms of this Chapter
or, if the President has reservations about the constitutiona lity of the Bill, refer it
back to the National Assembly for reconsideration.
(2) The joint rules and orders must provide for the procedure for the reconsideration
of a Bill by the National Assembly and the participati on of the National Council of
Province s in the process.
(3) The National Council of Provinces must pruticipate in the reconsideration ofa Bill
that the President has referred back to the National Assembly if--
22
(a) the President's reservations about the constitutio nality of the Bill
relate to a procedural matter that involves the Council; or
(b) section 74(1), (2) or (J)(b) or 76 was applicable in the passing of
the Bill.
(4) If, after reconsideration, a Bill fully accommodates the President' s reservations, the
President must assent to and sign the Bill; if not, the President must either--
(a) assent to and sign the Bill; or
(b) refer it to the Constitutional Court for a decision on its
constitutionality.
(5) If the Constitut ional Court decides that the Bill is constitutional , the President must
assent to and sign it.
Section 83 The President
The President-
(a) is the Head of State and head of the national executive;
(b) must uphold, defend and respect the Constitution as the supreme law of the
Republic; and
(c) promotes the unity of the nation and that which will advance the Republic.
Section 84 Powers and functions of President
(I) The President has the powers entrusted by the Constitution and legislation,
including those necessary to perform the functions of Head of State and head of the
national executive.
(2) The President is responsible for-
(a) assenting to and signing Bills;
(b) referring a Bill back to the National Assembly for reconsideration of the
Bill's constitutionality;
(c) referring a Bill to the Constitutional Court for a decision on the Bill's
constitutio nality;
(d)
Section 167 Constitutional Court
(I)
( 4) Only the Constitut ional Court may-
Discussion 23
(a) decide disputes between organs of state in the national or provincial sphere
concerning the constitutional status, powers or functions of any of those
organs of state;
(b) decide on the constitutionality of any parliamentary or provincial Bill, but
may do so only in the circumstances anticipated in section 79 or 121;
(c) decide applications envisaged in section 80 or 122;
(d) decide on the constitutionality of any amendment to the Constitution;
(e) decide that Parliament or the President has failed to fulfil a constitutional
obligation; or
(t)
(5) The Constitutional Court makes the final decision whether an Act of Parliament, a
provincial Act or conduct of the President is constitutional and must confirm any
order of invalidity made by the Supreme Court of Appeal, the High Court of South
Africa, or a court of similar status, before that order has any force.
(6)
[ 67] It is trite that when the jurisdiction of the Court is challenged by one of the parties,
it has to be determined first since it forms the basis for the Court's power to
determine the issues between the parties. In determining whether the Court has the
requisite jurisdiction to adjudicate the matter, the Court must consider the pleadings
as a starting point. In constitutional matters, jurisdiction is shared between the
Constitutional Court, Supreme Court of Appeal and the High Court, however the
Constitutional Court has repeatedly made it clear that it is undesirable for it to sit as
a court of first and last instance.
(68] In Bruce and Another v FleecytexJohannesburg CC and Others 1°, which was quoted
with approval in Satchwell v President of the Republic of South Africa11, the
Constitutional Court stated the following:
10 [ 1998) ZACC 3; 1998 (2) SA 1143; 1998 (4) BCLR 415.
11 (2003) ZACC 2; 2003 (4) SA 266 (CC); 2004 (I) BCLR I (CC) at para 6.
24
"It is, moreover , not ordinarily in the interests of justice for a court to sit as a court of first
and last instance, in which matters are decided without there being any possibility of
appealing against the decision given. Experience shows that decisions are more likely to be
correct if more than one court has been required to consider the issues raised. In such
circumstances the losing party has an opportunity of challenging the reasoning on which
the first judgment is based, and of reconsidering and refining arguments previously raised
in the light of such judgment.12"
[69] Furthermore, it has long been established that motion proceedings are designed for
the resolution of legal issues based on common cause facts. Put differently, motion
proceedings are to be decided on the papers and only in case where there is a factual
dispute between the parties which could be foreseen, then it is appropriate that action
proceeding should be instituted unless the factual dispute is not real or genuine or
bona fide.
[70] The principle was laid down in Plascon-Evans Paints (TVL) v Van Riebeck Paints
(Pty) Ltd13 where the Court, quoting from Stellenbosch Farmers' Winery Ltd v
Stellenvale Winery (Pty) ltd14 stated the following:
"Where there is a dispute as to the facts a final interdict should only be "granted in notice
of motion proceedings if the facts as stated by the respondents together with the admitted
facts in the applicant's affidavits justify such an order ... where it is clear that facts, though
not formally admitted , cannot be denied, they must be regarded as admitted.
This rule has been referred to several times by this court (see Burnkloof Caterers Ltd v
Horseshoe Caterers Ltd 1976 (2) SA 930 (A), at 938; Tamarillo (Pty) Ltd v BN Aiteken
(Pty) Ltd 1982 (I) SA 398 (A) at 430-1; Associate South African Bakeries (Pty) Ltd v Oryx
& Vereinigte Backereien (Pty) Ltd en Andere 1982 (3) SA 893 (A) at 923. It seems to me,
however, that this formulation of the general rule, and pa11icularly the second sentence
thereof, requires some clarification and, perhaps, qualification. It is correct that, where in
proceeding s on notice of motion disputes of fact have arisen on affidavit, a final order,
whether it be an interdict or some other form of relief, may be granted if those facts averred
12 Bruce and Another v Fleecytex Johannesburg CC and Others [ 1998] ZACC 3; 1998 (2) SA 1143; 1998 (4) BCLR
415 at para 8.
13 [1984] ZASCA 51; [1984] 2 All SA 366 (A); 1984 (3) SA 623; 1984 (3) SA 620.
141957(4)SA (C);(1957 ] 1 All SA 123(C).
25
in the applicant's affidavits which have been admitted by the respondent, together with the
facts alleged by the respondent , justify such an order. The power of the court to give such
final relief on the papers before it is, however, not confined to such a situation. In certain
instances , the denial by the respondent of a fact alleged by the applicant may not be such
as to raise a real, genuine or bona fide dispute of fact (see in this regard-Room Hire Co.
(Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA at 1163 (T); Da Mata v Otto NO
1972 (3) SA 585 (A) at 882).
lf in such a case the respondent has not availed himself of his right to apply for the
deponents concerned to be called for cross-examination under Rule 6(5)(g) of the Uniform
Rules of Court (cf Petersen v Cuthbert & Co Ltd 1945 AD 420 at 428; Room Hire case
supra at 1164) and the court is satisfied as to the inherent credibility of the applicant's
factual averment, it may proceed on the basis of the correctness thereof and include this fact
among those upon which it determines whether the applicant is entitled to the final relief
which he seeks (see Rikhoto v East Rand Administration Board 1983 ( 4) SA 278 (W) at
283 E -H). Moreover, there may be exceptions to this general rule, Bas, for example, where
the allegations or denials of the respondent are so far-fetched or clearly untenable that the
court is justified in rejecting them merely on the papers (see the remarks of Botha AJA in
the Associated South African Bakeries case, supra, at p 924 A)."
[71] The principle was expanded upon in Wightman t/a JW Construction v Head/our
(Pty) Ltd and Another15 where the court stated the following:
"A real, genuine and bona tide dispute of fact can exist only where the court is satisfied that
the party who purports to raise the dispute has in his affidavit seriously and unambiguously
addressed the fact said to be disputed. There will of course be instances where a bare denial
meets the requirement because there is no other way open to the disputing party and nothing
more can therefore be expected of him. But even that may not be sufficient if the fact
averred lies purely within the knowledge of the averring party and no basis is laid for
disputing the veracity or accuracy of the averment. When the facts averred are such that the
disputing party must necessarily possess knowledge of them and be able to provide an
answer (or countervailing evidence) if they be not true or accurate but, instead of doing so,
rc::;15 his case on a bare or ambiguous denial the court will generally have difficulty in
finding that the test is satisfied. I say 'generally' because factual averments seldom stand
apart from a broader matrix of circumstances all of which needs to be borne in mind when
15 [2008] ZASCA 6; [2008] 2 All SA 512 (SCA); 2008 (3) SA 371 (SCA).
26
arriving at a decision. A litigant may not necessarily recognise or understand the nuances
of a bare or general denial as against a real attempt to grapple with all relevant factual
allegations made by the other party. But when he signs the answering affidavit, he commits
himself to its contents, inadequate as they may be, and will only in exceptional
circumstances be permitted to disavow them. There is thus a serious duty imposed upon a
legal adviser who settled an answering affidavit to ascertain and engage with facts which
his client disputes and to reflect such disputes fully and accurately in the answering
affidavit. lfthat does not happen it should come as no surprise that the court takes a robust
view of the matter."16
[72] It is noteworthy that the respondents did not file any answering affidavits in
opposition to these cases. Therefore , since the starting point in determining the issue
whether this Court bas the necessary jurisdiction to adjudicate this matter is from
the pleadings , the Court is obliged to consider the only pleadings filed of record
which are the founding affidavits of the applicants. Following the Plascon Evans
rule as enunciated above, the facts as stated in the founding affidavits of the
applicants are uncontroverted and are to be admitted as such.
[73] The case for the applicants is that the President has, in the face of enormous
opposition that the NHI Bill was unconstitutiona l, nevertheless assented to and
signed the NHI Bill into law in breach of his duties as imposed upon him by the
Constitution. The Constitution requires the President to first consider and scrutinise
the constitutionality of a Bill before assenting to and signing it into law, and the
challenge in this instance is that the President failed to do so.
[74] It is undisputed that section 167(4)(e) specifically provides that where the President
or Parliament is alleged to have failed to fulfil a constitutional obligation, the
exclusive jurisdiction of the Constitutional Court is engaged. What this Court must
consider is whether the conduct of the President complained of and the constitutional
obligations which are conferred upon the President in terms of section 84(2)(a) read
16 Id at para 13.
27
with section 79 are those enlisted in section 167( 4 )( e) which fall within the exclusive
remit of the Constitutional Court.
[75] In Economic Freedom Fighters v Speaker, National Assembly and Others17 the
Constitutional Court, dealing with the issue of determining whether a Court enjoys
exclusive jurisdiction in a matter, stated as follows:
"Whethe r this Court has exclusive jurisdiction in a matter involving the President or
Parliament is not a superficial function of pleadings merely alleging a failure to fulfil a
constitutional obligation. The starting point is the pleadings. But much more is required.
First, it must be established that a constitutional obligation that rests on the President or
Parliament is the one that allegedly has not been fulfilled. Second, that obligation must be
closely examined to determine whether it is of the kind envisaged by section 167(4)(e). "18
[76] The Constitutional Court continued and stated that additional and allied
considerations are that section 167( 4)(e).must be given a narrow meaning and added
the following:
"An alleged breach of a constitutional obligation must relate to an obligation that is
specifica lly imposed on the President or Parliament. An obligation shared with other organs
of State will always fail the section 167(4)(e) test. Even if it is an office-bearer- or
institution-specific constitutional obligation, that would not necessarily be enough. Doctors
for Life provides useful guidance in this connection. There, Ngcobo J said, "obligations
that are readily ascertainable and are unlikely to give rise to disputes" , do not require a
court to deal with "a sensitive aspect of the separation of powers" and may thus be heard
by the High Court. This relates, as he said by way of example, to obligations expressly
imposed on Parliament where the Constitution provides that a particular legislation would
require a two-thirds majority to be passed. But where the Constitution imposes the primary
obligation on Parliament and leaves it at large to determine what would be required of it to
execute its mandate, then crucial political questions are likely to arise which would entail
an intrusion into sensitive areas of separation of powers. Wl1en this is the case, then the
demands for this Court to exercise its exclusive jurisdiction would have been met."19
17 [20161 ZACC I I, 2016 (3) SA 580, 2016 (5) BCLR 618 (CC).
18 Id at para 16.
19 Id at para 18.
28
[77] Although the concept of constitutional obligation has not been defined by the
Constitutional Court, the Court has explained that whether conduct falls within its
exclusive jurisdiction depends on the facts and the precise nature of the challenges
to the conduct of the President. Put differently , the issue is always dealt with on a
case-by-case basis and surely cannot mean the general duty to act in confonnity with
the Constitution as this would be at odds with section 172(2)( a) of the Constitution
which confers jurisdiction on the Supreme Court of Appeal and High Court to
determine such matters or conduct.
[78] In Doctors for Life international v Speaker of the National Assembly and Others,20
which quoted with approval the case of President of the Republic of South Africa
and Others v South African Rugby Football Union and Others,21 the Constitutional
Court stated the following:
"What all of this points to is that the phrase 'a constitutional obligation' in section 167(4)(e)
should be given a narrow meaning. If the phrase is construed as applying to all questions
concerning the constitutional validity of Acts of Parliament , it would be in conflict with the
powers of the Supreme Court of Appeal and the High Courts to make orders concerning
the validity of Acts of Parliament. "22
In President of the Republic of South Africa and Others v South African Rugby Football
Union and Others (SARFU 1), this Court, in the context of the conduct of the President ,
expressed the view that the words 'fulfil a constitutional obligation' in section l67(4)(e)
should be given a narrow meaning because a broader meaning would result in a conflict
with section 172( l )(a) which empowers the Supreme Court of Appeal and the High Courts
to make orders concerning the constitutional validity of the conduct of the President. While
finding it unnecessary to define the expression 'fulfil a constitutional obligation', the Court
expressed the view that '[i]t may depend on the facts and the precise nature of the challenge s
to the conduct of the President'. In my view, there is no reason why this should not apply
to the phrase as it relates to Parliarnent.23"
20 [2006] ZACC 11 ;2006 (6) SA 4 I 6 (CC);2006 ( 12) BCLR 1399 (CC).
21 [1999]ZACC 11;2000(1)SA I; 1999(10)BCLR 1059.
22 [2006] ZACC I I ;2006 (6) SA 4 I 6 (CC);2006 ( 12) BCLR 1399 (CC). at para 19.
23 Id at para 20.
29
(79] The provisions of section 83 of the Constitution which imposes obligations on the
President to uphold, defend and respect the Constitution are not enough to invoke
the provisions of section 167(4)(e) for it is not an obligation solely imposed on the
President but also to other organs of state. To implicate the exclusive jurisdiction of
the Constitutional Court, the obligation must be conferred on the President or
Parliament specifically and no other organ of state. If it is a shared obligation, as is
the case in the legislative process which is shared by the National Assembly , the
National Council of Provinces and the President, then the High Court and the
Supreme Court of Appeal has the necessary jurisdiction to determine the matter.
[80] It is noteworthy that section 79, which empowers the President to assent to and sign
a Bill into law ifhe does not have reservations about its constitutionality, falls under
the heading 'National Legislative Process' in the Constitution. That would imply
that the President has a certain role to fulfil in the legislative process and as the head
of the executive together with other me~bers of the executive implement national
legislation. Put in another way, the President is a role player in the legislative process
with other players although his role is activated only after Parliament has completed
its functions and has presented the Bill to the President.
[81] In Minister for Environmental Affairs v Aquarius Platinum (SA) (Pty) LimitecP-4 the
Constitutional Court stated as follows when it was dealing with the provisions of
section 79:
"For a proper understanding of the constitutional challenge and the order granted by the
High Cou1t. it is necessary to set out the legal framework before nam1ting the facts. The
Constitution confers the legislative power at the national sphere upon Parliament. In the
exercise of this power, Parliament passes legislation which is introduced to it in the form
of Bills. In the National Assembly. Bills may be introduced by a Cabinet member. a Deputy
Minister or a member of the Assemblv only. The Bill does not assume the status of a law
until it has been assented to and signed by the President.25
24(2016) ZACC 4; 2016 (5) BCLR 673 (CC).
25 Id at para 5.
30
Section 79 introduces the President as a role player in the process of mal-.ing legislation.
But the President's role is activated only at1er Parliament has completed its functions and
has presented the Bill to the President. Upon receipt of a Bill, there are two options open to
him. He may assent to and sign the Bill. in which case a fu1ther step would follow. This is
the prompt publication of a Bill which has been conve1ted into an Act of Parliament
following the assent lo and signing by the President.' '16
l 82J To preserve the comity between the judicial, legislative and executive branches of
government. only the highest court in constitutional matters may intrude into the
domain of the principal legislative and executive organs of state. In terms of section
167(4)(e) only the Constitutional Court has the exclusive jurisdiction in crucial
political areas. and it bears the duty to adjudicate fina!Jy in respect of issues which
would inevitably have important political consequences.
l 831 The Constitutional Court has recognised. in Women's legal Trust v President of the
Republic of South Africa,27 that the High Court's constitutional jurisdiction must be
broadly interpreted . Interpretation of the constitutional jurisdiction of the High Cou11
entails recognising a broad category of presidential and parliamentar y acts or
omissions that are subject to the Courts· review, but not on the ground that they
constitute a failure to fulfil a constitutional obligation.
L84] It is my respectful view therefore that the President is responsible. as pan of his
powers and functions. to assent to and sign a Bill as he did in this case with the Nf--TI
Bill as a role player in the national legislative process. The Presidenr s obligations
in this instance are not agent specific and does not engage the exclusive jurisdiction
of the Constitutional Court. Further, the conduct of the President that is complained
or is his failure to scrutinise and assess the constitutionality of the NHl Bill since it
is lus duty to do so in Lcrms or secuun 79 ur Lile ConsLiluLion.
26 Id at para 6.
27 [2009] ZACC 20; 2009 (6) SA 94 (CC) at para 12.
31
[85 J There is no merit in the contention that the conduct of the President complained of
has the potential to implicate the separation of powers. The issue is whether the
President has properly applied his mind as required by section 79 of the Constitution
when he assented to and signed the NHl Bill after receiving all the objections to the
constitutionality of Bill from the stakeholders including his own legal advisors. This
cannot be said to be intruding into the domain of the principal legislative and
executive organs of state which would bring the matter into the remit of the exclusive
jurisdiction of the Constitutional Court.
[86] Although there are no clear prescripts as to what degree of reservation the President
should have before referring the Bill back to Parliament for reconsideration, when
assenting to and signing a Bill, the President must subjectively apply his mind to
assess and scrutinise if the Bill is not constitutiona lly invalid. It is this conduct which
is challenged by the applicants in this case and does not fall in the category of the
Presidenrs failures in fulfilling his constitutional obligations that excludes the
jurisdiction of this Court but engages the exclusive jurisdiction of the Constitutiona l
Court. The unavoidable conclusion is therefore that this Comt has the necessary
jurisdiction to adjudicate and determine the issues in this case.
[87) l now turn to deal with the question whether the President's decision is reviewable.
It is trite that the exercise of all public power must comply with the Constitution,
which is the supreme law and the doctrine of legality which is pati of the rule of law.
Section 2 of the Constitution provides that law or conduct which is inconsistent with
the Constitutio n is invalid and the obligations imposed by it must be fulfilled. The
President receives his powers from section 84 of the Constitution which powers are
clearly not insulated from judicial review.
32
[88] In A/butt v Centre for the Study of Violence and Reconciliation28 the Constitutional
Court stated the following:
·'It is by now axiomatic thar the exercise of all public power must comply with the
Constitution. which is the supreme law, and the doctrine of legality, which is part of the rule
of law. More recently. and in the context of section 84(2)(j). we held that although there is no
right to be pardoned, an applicant seeking pardon has a right to have his application
·'considered and decided upon rationally, in good faith, [and] in accordance with the principle
of legality•·. It follows therefore that the exercise of the power to grant pardon must be
rationally related to the purpose sought to be achieved by the exercise of it.29
All this flows from the supremacy of the Constitution. The President derives the power to
grant pardon from the Constitution and that instrument proclaims its own supremacy and
defines the I im its of the powers it grants. To pass constitutional muster therefore. the
President's decision to undertake the special dispensation process, without affording victims
the opportunity to be heard, must be rationally related to the achieveme nt of the objectives of
the process. If it is not, it falls short of the standard that is demanded by the Constitution."30
[89] The President's power to assent to and sign a Bill into law is public power which is
part of the President's constitutional duties and responsibilities which he exercises
in the public interest. The power to assent to and sign a Bill into law is a key aspect
of the legislative process as the President is a role player in the legislative process.
Since all public power is bound to the principle of legality and the specific
constraints imposed by section 79(]) dearly demonstrate that this power is subject
to constitutional controls. it is therefore capable of judicial review.
[90] There is no merit in the argument by the respondents that to review the decision of
the President made under section 79 will invite people who have deep pockets, to
challenge every decision of the President to assent to and sign a Bill into law and
thereby delay the passing or legislation whilst the mauer is litigated upon. Tl1t::
President must act in accordance with the Constitution and the law. He has the
28 [2010] ZACC 4; [2010) (3) SA 293 (CC); SACR 101.
29 Id at para 49.
30 Id at para 50.
33
constitutiona l obligation and responsibi lity to uphold. defend and respect the
Constitution as the supreme law of the Republic. As the first citizen of the Republic,
the President must lead by example in observing and respecting the laws of the
country. The ineluctable conclusion is therefore that the decision of the President to
assent to and sign the NHJ Bill is reviewable.
[91 l In emphasising the role of the President in the democratic South Africa. the
Constitutiona l Court stated the following in the Economic Freedom Fighters
referred to above:
·'That this Court enjoys the exclusive jurisdiction to decide a failure by the President to
fulfil his constitutional obligations ought not to be surprising, considering the magnitude
and vital importance of his responsibilities. The President is the Head of State and Head of
the national Executive. His is indeed the highest calling to the highest office in the land. He
is the first citizen of this country and occupies a position indispensable for the effective
governance of our democratic country. Only upon him has the constitutional obligation to
uphold, defend and respect the Constitution as the supreme law of the Republic been
expressly imposed. The promotion of national unity and reconciliation falls squarely on his
shoulders. As does the maintenance of orderliness, peace, stability and devotion to the well­
being of the Republic and all of its people. Whoever and whatever poses a threat to our
sovereignty, peace and prosperity he must fight. To him is the executive authority of the
entire Republic primarily entrusted. He initiates and gives the final stamp of approval to all
national legislation. And almost all the key role players in the realisation of our
constitutional vision and the aspirations of all our people are appointed and may ultimately
be removed by him. Unsurprisingly, the nation pins its hopes on him to steer the country in
the right direction and accelerate our journey towards a peaceful, just and prosperous
destination, that all other progress-driven nations strive towards on a daily basis. He is a
constitutional being by design, a national pathfinder, the quintessential commander-in­
chief of State affairs and the personification of this nation's constitutional project."31
[921 It is indisputable that the President exercises his discretion in terms of section 79
when he scrutinises and assess the constitutional validity of a Bill before assenting
31 [2016] ZACC 11, 2016 (3) SA 580, 2016 (5) BCLR 618 (CC) at para 20.
34
to and signing it into law. Hm,vever, as indicated previously. the exercise or
discretion must be proper, lawful and ratio□al and not arbitrary or capricious or to
achieve an ulterior purpose. The President"s exercise of the discretion in terms of
section 79 whether to refer the NHI Bill back to Parliament or not. having regard to
the opposition on the basis of its constitutional ity by a number of stakeholders. is
reviewable.
l93] It is well established that the primary purpose of rule 53 of the Uniform Rules or
Court is to facilitate and regulate the applications for review. The rule requires the
production of the record of the impugned decision since it is of cardinal importance
as it provides the necessary insights into the decision-making process which is
essential to determine the lawfulness and rationality of the decision.
[94] The approach to interpreting legislative provisions, whether acts or regulations made
pursuant to an Act, is well settled. It was recently summarised in AmaBhungane
Centre for Investigative Journalism NPC v President of the Republic of South
Africa32 where the Constitutional Court stated the following :
"One must start with the words, affording them their ordinary meaning, bearing in mind
that statutory provisions should always be interpreted purposively, be properly
contextualised and must be construed consistent ly with the Constitution. This is a unitary
exercise. The context may be determined by considering other subsections , sections or the
chapter in which the keyword, provision or expression to be interpreted is located. Context
may also be determined from the statutory instrument as a whole. A sensible interpretation
should be preferred to one that is absurd or leads to an unbusinesslike outcome."33
•
(951 Rule 53 provides as follows:
·'53. Reviews
(1) Save where any law otherwise provides, all proceedings to bring under review
the decision or proceedings of any inferior court and of any tribunal, board or
32 [2022] ZACC 3 I; 2023 (2) SA I (CC); 2023 (5) BCLR 499 (CC).
33 Id at para 36
(2) 35
officer performing judicial, quasi-judicial or administrative functions shall be
by way of notice of motion directed and delivered by the party seeking to
review such decision or proceedings to the magistrate, presiding officer or
chairperson of the court, tribunal or board or to the officer, as the case may be,
and to all other parties affected-
(a) calling upon such persons to show cause why such decision or
proceedings should not be reviewed and corrected or set aside and ,
(b) calling upon the magistrate, presiding officer, chairperson or officer, as
the case may be, to despatch, within 15 days after receipt of the notice of
motion, to the registrar the record of such proceedings sought to be
corrected or set aside, together with such reasons as the magistrate ,
presiding officer, chairperson or officer, as the case may be is by law
required or desires to give or make, and to notify the applicant that such
magistrate, presiding officer, chairperson or officer, as the case may be has
done so."
[96] Relying on President of the Republic of South Africa v Democratic ALiiance and
Others. 34 the thrust or the respondents· contention is that the matter is politically
sensitive or policy-laden and engages the separation of powers. Therefore, the
applicant is certainly not automatically entitled to the record because this is a matter
interwoven with the merits. Put in another way, since the political nature of this case
engages separation of powers issues. rule 53 does not automatically apply,
moreover. the President is not one or the entities mentioned in the rule and is
therefore not obliged and bound to produce the record of decision as provided for in
the rule.
[97] I do not understand the decision of the Court in the Democratic Alliance case to be
saying that the President is immune from producing the record of decision in terms
of rule 53. lt cautions the Court to be careful when dealing with matters that arc
politically sensitive, policy-laden and engage the separation of powers. This case is
34 [2019] ZACC 35; 2019 ( I I) BCLR 1403 (CC) 2020 (I) SA 428 (CC).
36
distinguishable from the Democrati c Alliance case referred to above in that this
Court has already found that it does not involve sensitive political issues which
implicate the separation of powers. Further, it has been accepted by the
Constitutional Court in the DemocraNc Alliance case that it is generally accepted
that executive decisions are reviewable under the principle of legality or rule 53.
[98] lt can be accepted that rule 53 does not list the President as one of the entities to
which it shall be applicable . However, the rule is applicable, as was stated in the
Democratic ALiiance case. to review executive decisions. That implies to include
decisions of the President. [t would be an absurdity to interpret the rule narrowly to
exclude the President on the basis that he is not mentioned as one of the entities who
are subject to the rule. All organs of the state decisions are subject to review in terms
of rule 53. To suggest that the President, as head of the State. is not obliged to
produce the record of decision in terms of the rule would be tantamount to putting
the President above the law.
[99] I can find no reason to disagree with the purposive interpretation of rule 53 as applied
by this Division in Democratic Alliance v President of the Republic o,fSouth African.
This is so because the record of decision is not only necessary for the benefit of the
applicants but also to enable the Court to properly perform its constitutionally
entrenched review function. The judicial authority of the Republic is vested in the
Courts and no person or organ of state, including the President, may interfere with
the functioning of the courts. It is my view therefore that the President is not above
the law or the authority of the Court and is therefore obliged to produce the record
of decision in terms of rule 53.
11001 In Eke v Parsons35 the Constitutional Court defining the purpose of the Rules of
Court stated the following :
35[2015) ZACC 30; 2016 (3) SA 37 (CC), 2015 (11) BCLR 1319 (CC).
37
"Without doubt, rules governing the court process cannot be disregarded. They
serve an undeniably important purpose. That, however, does not mean that courts
should be detained by the rules to a point where they are hamstrung in the
performance or the core function of dispensingjustice. Put differently, rules should
not be observed for their own sake. Where the interests ofjustice so dictate, courts
may depart from a strict observance of the rules. That, even where one of the
litigants is insistent that there be adherence to the rules. Not surprisingly, courts
have often said ·'fi]t is trite that the rules exist for the courts, and not the courts for
the ru les."'36
Under our constitutional dispensation. the object of court rules is twofold. The first
is to ensure a fair trial or hearing. The second is to --secure the inexpensive :md
expeditio us completion of litigation and ... to further the administration of justice'·.
I have already touched on the inherent jurisdiction vested in the superior courts in
South Africa. In terms of this power, the High Court has always been able to
regulate its own proceedings for a number of reasons. including catering for
circumstances not adequately covered by the Uniform Rules. and generally
ensuring the efficient administration of the courts' judicial functions."37 (Footnotes
excluded).
l IOI] When embarking on a purposive interpretation of rule 53 in Democratic Alliance v
President of the Republic of South Africa38 the Court stated the following:
36 Id para 39.
37 Id para 40. --Relying on the purposive interpretation there is no logical reason not to utilise it in an
application to review and set aside an executive decision. The judicial exercise undertaken
by the court in such a review is no different from the one undertaken in review applications
nf nn "i,,ji.,rim· court. a lriln111al. "hnard or a,, officer per/iJr111inj!;judicial. q11asi~j11dicial
or admi11istra tiw .fimcrions." The tests to be applied may be different but the process
3x Democratic Alliance v President of the Republic of South Africa: In re: Democratic Alliance v President of the
Republic ofSowh Africa [2017] ZAGPPHC 148; [2017] 3 All SA 124 (GP); 2017 (4) SA 253 (GP).
38
utilised can be the same. Its provisions. in my judgment. should be applied unless it can be
shown that its application in a pa.tticular case would result in a failure ofjustice.'''Q
[ 102] The President has not filed an answering affidavit to state the reasons why it is
undesirable for him to produce the record of decision or what portions of the record
of decision he should not produce and under what circumstances. No compelling
reasons have been placed before Court to justify the withholding of the record or
any parts thereof. The purpose of the rule is to facilitate and regulate applications
for review which proceedings were said by the Supreme Court of Appeal in Van Zyl
and Others v Government of the Republic of South Afi-ica and Other40 must in the
ordinary course be brought under rule 53 unless they otherwise fall within the
purview of the Promotion of Administrative Justice Act.41
[l 03] In Murray and Others NNO v Ntombela and Others42 the majority decision of the
Supreme Court of Appeal held that the general legal position was that in respect of
review proceedings contemplated in rule 53, the applicant was entitled as of right,
derived from rule 53(3) itself to a record of the decision sought to be reviewed. The
unavoidable conclusion is therefore that the applicants are entitled, as of right
derived from rule 53, to the record of decision to assent to and signing the NHI Bill
into law. The President is obliged. since the executive decisions arc subject to be
reviewed in terms of rule 53, to produce the record of his decision to assent to and
sign the NHI Bill into law.
39 Id at para 29.
40[2007) ZASCA 109; 2008 (3) SA 294 (SCA) [2008) I All SA 102 at para 36.
41 3 of2000 (PAJA).
42 [2024] ZASCA 24; [2024) 2 All SA 342 (SCA); 2024 (4) SA 95 (SCA).
39
[ I 04] The Constitutional Court had an opportunity to deal with the issue of producing the
record of the impugned decision in terms of rule 53 in Competition Commission of
South Africa v Standard Bank of South Africa Ltd43 and stated the following:
'"This finding is entirely consistent with what the Supreme Court of Appeal and this Court
have said about the importance of the rule 53 record and its availability to litigants. This is
because a distinction must be made between the jurisdiction of the forum to hear the review
application and the merits of the review application. If a review application is launched in
a forum that enjoys jurisdiction, then a party is entitled to the record even if their grounds
of review are meritless. As the Supreme Court of Appeal put it, "the obligation to produce
the record automatically follows upon the launch of the application, however ill-founded
that application may later turn out to be". This is because, as recognised by the majority
decision in Helen Suzman, rule 53 envisages the grounds of review changing after the
record has been furnished. The record is essential to a party's ability to make out a case for
review. It is for this reason that a prima facie case on the merits need not be made out prior
to the filing ofrecord.44
I accept that there are good reasons for the obligation to produce the record following
automatically upon the launching of a review application. Delaying the production of the
record is inimical to the exercise of the courts' constitutionally mandated review function.
A lengthy delay may impede the courts' ability to assess the lawfulness, reasonableness
and procedural fairness of the decision in question and undermine the purpose of judicial
review. One reason for this is that documents and evidence, which should be included
within the rule 53 record, may be lost if there is a considerable delay in the production of
the review record. This does not, however, imply that a court should order production of a
rule 53 record without first determining its competence to hear the review
application. "45(Footnotes excluded)
[ I 05] Although the President is, as stated in the Economic Freedom Fighters case. a
constitutional being by desig11, the quintessential national pathfinder . he is not above
Lh\; Con;:;tilulion and l,\ws of tho Rcpubl,c. It is my con!=:idered view 1hercfore that
43 Competition Commission of South Africa v Standard Bank of South Africa limited: Competition Commission of
South Africa v Standard Bank of South Afi·ica limited; Competition Commission of South Aji·ica v Waco Aji·ica (Pty)
limited and Others (2020) ZACC 2; 2020 (4) BCLR 429 (CC).
44 Id at para 120
•15 Id at para 122.
40
the purpose of the rule and the rule of law itself would be defeated if the President
is immunised from filing the record of decision solely because he is the President of
the Republic.
[ I 06] Even if it were to be accepted that the President is not obliged to file the record of
decision in terms of rule 53, this Court has the inherent power in terms of section
173 of the Constitution to order the President to file the record in the interest of
justice. This is so even if the litigants have not pleaded and sought that the Court
engage the provisions of section l 73. ln this case, the interest of justice would be
better served if the President produces and files the record of decision since it will
enable not only the applicants to amend their notices of motion but also the Court to
fulfil its review functions.
[ I 07] Section 173 of the Constitution provides the following:
·'Inherent power
The Constitutional Court, the Supreme Court of Appeal and the High Court of South Africa
each has the inherent power to protect and regulate their own process, and to develop the
common law, taking into account the interests of justice."
[ I 08] In South African Broadcasting COJporation Limited v National Director of Public
Prosecutions and Others, -16 quoted with approval in Social Justice Coalition and
Others v Minister of Police and Others,47 the Constitutional Court stated the
following when it was dealing with the inherent powers of the Superior Courts in
terms of section 173 of the Constitut ion:
46 [2006] ZACC 15; 2007 (I) SA 523 (CC).
47 [2022) ZACC 27; 2022 (10) BCLR 1267 (CC) at para 72.
41
·'Cou_,ts, therefore. must be independent and impartial. The power recognised in section 173
is a key tool for courts to ensure their own independence and impa,tiality. It recognises that
courts have the inherent power to regulate and protect their own process. A primary purpose
for the exercise of that power must be to ensure that proceedings before cowts are fair. It is
therefore fitting that the only qualification on the exercise of that power contained in seclion
173 is that cmuts in exercising this power must take ii/lo account the interests of justice.18
In my view it must be added that the power confe1Ted on the High Cou11s, Supreme Cou1t or
Appeal and this Court in section 173 is not an unbounded additional instrument to limit or
deny vested or entrenched rights. The power in section 173 vests in the judiciary the authority
to uphold, to protect and to fulfil I the judicial function of administering justice in a regular,
orderly and effective manner. Said otherwise it is the authority to prevent any possible abuse
of process and to allow a court to act effectively within its jurisdiction. However. the inherent
power to regulate and control process and to preserve what is in the interests of justice does
not translate into judicial authority to impinge on a right that has otherwise vested or has been
conferred by the Constitution.19••
[ 109] There is no merit in the respondents· contention that this Court should not come to
U1c rescue of the applicants and engage the provisions of section 173. The power in
section 173 vests in the Court, and not in the litigants, the authority to uphold, protect
and to fulfil the judicial function of administering justice in a regular. orderly and
effective manner. It is the authority for the Cou11 to regulate its processes. even
where the rules of procedure fall short. if the interests of justice would be better
served.
48 [2006) ZACC 15; 2007 (I) SA 523 (CC) at para 36.
49 Id para 90.
42
Conclusion
[11 O] It is my respectful view that this Com1 has the necessary jurisdiction to adjudicate
this case for the conduct of the President complaint of does not involve sensitive
political issues or political-laden nor does it implicate the separation of powers.
Further, the conduct of the President complained of is performed by him as part of
the legislative process -thus it is not performed by the President alone but is
performed collaboratively at the third level and final stage of the legislative process.
Put differently. to assent to and sign a Bill into law, the President performs his
function as a role player in the legislative process.
[ 111 J The President 's decision to assent to and sign the NHI Bill is revie\.vable because all
executive decisions are reviewablc under principle of legality or under rule 53.
Therefore, I hold the view that the President's decision is reviewable in terms of rule
53 and the President is obliged to produce and file the record of decision as provided
for in the rule.
Costs
[ 112] The applicants seek costs on scale C in terms of rule 67 A of the Uniform Rules of
Court, including the costs for the employment of three counsels. The higher scale
and number of counsels is sought due to the complexity of the issues in this matter
and the nature of the legal questions involved. The President also sought the same
scale of costs against the applicants if he were successfu l.
[ 113] 1t is trite that the awarding of costs is strictly in the discretion of the Court and as a
rule, generally the successfu l party is entitled to his or her costs. 1 have no reason to
43
deviate from the general rule in this case and the applicants are therefore entitled to
their costs as successfu l parties on scale C in terms of rule 67 of the Uniform Rules
of Court including costs of senior counsel.
[114] In the premises, the following order is made:
1. The Gauteng High Court has jurisdiction to entertain the matter;
2. The President's decision to assent to and sign the National Health
fnsurance Act is reviewable;
3. The first respondent is ordered to furnish the record of the impugned
decision within ten (10) calendar days of this court order; and
4. The first and second respondents are ordered to pay the costs related
to the rule 6(5)(d)(iii) application,jointly and severally, the one paying
the other to be absolved, including the costs for the employment of
three counsel on scale C.
For the Applicant
BHF:
Instructed by: TWALAML
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DMSION
Advocate B Leech SC
Advocate M Oaf el
Advocate A Ngidi
Werksmans Attorneys
for the Applicant
SAPPF:
Instructed by:
For the first Respondent:
Instructed by:
for the second Respondent:
Instructed by: Tel: 011 535 8198
nkirby@werksmans.com
Advocate M Du Plessis SC
Advocate C Kruyer
Advocate S A Karim
Webber Wentzel Attorneys
Tel: 011 530 5220
Martin. versf eld@webberwentzel.com
Advocate A Stein SC
Advocate K Premhid
Advocate N Nyembe
State Attorney: Pretoria
Tel: 012 309 1623
rsebelemetsa@justice.gov .za
Advocate A Dodson SC
Advocate CP Wesley SC
Advocate MPD Chabedi SC
Advocate K Pillay SC
Advocate K Kollapen
Advocate H Rajah
Advocate L Motlhasedi
Advocate L Mokgoroane
Advocate A Raw
Advocate C Juries
Advocate N Muvangua
Advocate U Naidoo
Kgosana Attorneys
Tel: 012 326 1452
makule@kgosan-attornevs.co.za 44
45
Date of Hearing: 4 and 5 March 2025
Date of Judgment: 6 May 2025
Delivered: This judgment and order was prepared and authored by the Judge whose
name is reflected and is handed down electronicall y by circulation to Parties
/ their legal representatives by email and by uploading it to the electronic file
of this matter on Case Lines. The date of the order is deemed to be 6 May
2025.