The legal battle against the National Health Insurance (NHI) Act intensified on Wednesday, 6 May 2026, as proceedings entered their second day, with the Western Cape government sharply criticising Parliament’s handling of public input.
Western Cape Premier Alan Winde and his administration approached the Constitutional Court (ConCourt) in September last year, disputing the validity of the NHI Act, which aims to introduce universal access to healthcare services in South Africa.
NHI public participation process in dispute
Central to the province’s case is the claim that the legislative process failed to adequately reflect the voices of Western Cape residents.
The government argues that the National Council of Provinces (NCOP) did not properly consider submissions made during the public participation process on the NHI Bill.
Court documents highlighted concerns about the tight schedule imposed for public input, with submissions limited to a brief period from 31 October to 21 November 2023.
The province maintains that the timeline undermined meaningful engagement and, therefore, the NCOP fell short of its constitutional requirements.
As a result, the Western Cape is asking the court to declare the Act invalid and to send it back to Parliament.
Background to the NHI legislation
The NHI legislation had been several years in the making, having first been tabled in Parliament in 2019.
The National Assembly passed the bill in June 2023, with the NCOP later giving its approval in December of the same year.
President Cyril Ramaphosa formally enacted the law in May 2024.
However, despite being signed off, the rollout of the NHI is yet to begin, largely due to a series of legal challenges.
NHI legal battle continues in ConCourt
Appearing on behalf of the Western Cape premier, Advocate Geoff Budlender contended that the process followed by the NCOP – particularly its Select Committee on Health and Social Services – compromised public participation.
He argued that the main issue was not a difference of opinion between MPs and the public, but rather that the submissions made were effectively overlooked and not properly taken into account.
The lawyer highlighted that Gauteng’s report was not submitted, resulting in the province’s inputs never being placed before the NCOP for consideration.
“The minutes and the reports of the proceedings of the select committee do not reflect any report of any kind in respect of Gauteng.
“So what happened at the Gauteng public hearings was never communicated to the select committee,” Budlender told the ConCourt on Wednesday.
“Members of the public in Gauteng were, therefore, unable to influence what happened. This deprived the process of the potential to achieve its purpose,” he continued.
Western Cape government’s inputs ‘ignored’
Budlender further argued that the Western Cape’s report was submitted to the select committee only after the public hearings had ended.
He pointed out that during a meeting held on 21 November 2023, the committee proceeded to finalise the NHI Bill despite noting that the Western Cape delegation was not present.
He further described it as “unexpected” that the committee subsequently reconvened on 28 November to deliberate on the province’s report, saying no reasons were given for the additional sitting.
“By then, it was too late for the select committee to consider the merits of what the Western Cape Provincial Legislature was proposing.”
Despite the meeting being called to discuss the province’s input, Budlender said it was ultimately disregarded.
“The committee then adopted the Bill exactly as before. The entire meeting took 35 minutes, and that’s the outcome of the Western Cape public participation process. That’s the impact that it had on the process, in other words, nil.”
He described the process as a “charade”.
“This was simply a rubber-stamp exercise. It was a belated attempt to cure the problems arising from the previous meeting and nominally tick the box of considering the Western Cape’s public participation and mandate,” Budlender said.
Budlender told the court that the NCOP’s actions effectively excluded submissions from two of the country’s nine provinces.
“In two provinces, public participation failed fundamentally, not in a trivial respect. It failed to happen as required by law.”
NCOP timeline criticised
The Western Cape government has also criticised the tight timeline imposed during the legislative process.
According to Winde, the urgency was not driven by the contents of the Bill, but rather by a push to conclude it before the end of Parliament’s term, ahead of the 2024 general elections.
Budlender highlighted that requests for reasonable extensions by the province were refused.
According to a letter, the sole justification provided at the time by the chairperson of the select committee was that an extension would have resulted in delays to the finalisation of the NHI Bill by the end of 2023.
“There’s no explanation of why the calendar year was an immovable deadline. What was the magic of the 31st of December?
“What was the magic of 2023? Parliament was going to continue sitting in the early part of 2024. Why couldn’t it be done then?”
He added that the Bill could have been left to lapse and then reintroduced by the incoming Parliament after the elections.
“There’s no explanation at all of why the Bill had to be concluded in that session of Parliament, and the result is that the decision to have a timetable, which limited public participation in this manner, is unreasonable.”
