Road to NHI just got rockier — with only two GNU parties supporting it, what will happen to the Act?

Five political parties have pledged to work together in the government of national unity — but what does this mean for the future of the National Health Insurance Act? We asked some experts.

Now that South Africa has a government of national unity (GNU), with all five parties that signed the agreement supporting the idea of universal access to healthcare in their election manifestos – although only two, the ANC and Good, outright support the National Health Insurance (NHI) Act as the route to get there – implementation of the NHI is likely to become even trickier than before the elections.

Universal access to healthcare means providing the same healthcare to everyone in the country, regardless of whether someone can pay for it.

Four parties have joined the ANC in the new GNU: the DA, IFP, Good and the Patriotic Alliance (PA). Collectively they represent 273 seats (68%) in the National Assembly.

Before the elections, the DA, for one, wanted the NHI Act to be dropped and told its voters the party had its own plan for how to get to universal health coverage. The IFP voted against the NHI Bill in Parliament and, although Good doesn’t directly refer to the NHI in its election manifesto, the party voted for the Bill in the National Assembly.

“NHI is a form of universal healthcare, but there are different models,” says Hassan Mahomed, a health systems expert from Stellenbosch University’s division of health systems and public health.

What the GNU Cabinet will look like – and which party will get the health portfolio – is not yet clear.

For the NHI Act, this means “how, or if, it is implemented is now the issue”, says Pamela Saxby, founder of Policy Watch SA, an organisation that helps businesses and their legal advisers make sense of the legislative process in South Africa.

“There’s still a very long way to go,” says Saxby. “We only have a framework agreement [for the GNU] in place [at the moment]. Who will influence [the future of the NHI] the most? These things still have to be thrashed out,” she says.

President Cyril Ramaphosa’s signing of the NHI Bill into law on 15 May, just two weeks before the general elections, was met with mixed reactions, to say the least.

Putting his signature on the Bill meant that he gave the presidential go-ahead for it to be law, which could be officially published as an Act in the Government Gazette the next day.

“It was important to fulfil a promise made long before the elections,” says Saxby. But, she explains, signing a Bill into law without making it implementable “simply means it joins the statute books”.

With politicians bartering for positions, will the NHI Act become a reality? And if it does, how will it look in practice and how long will it take for the law to change people’s lives?

“Speed is not a word that I will apply to the NHI. Even if the ANC had obtained a majority, it was going to take time – 15 to 30 years, analysts suggest – to implement the NHI. It’s going to be a slow process,” Mahomed says.

But, he adds, at the moment there’s “a lot of anxiety and panic around the NHI” – and that’s why we asked a few experts to explain what comes next.

The NHI Bill has been signed into law – is it ready to be rolled out?

“No, not yet. The NHI Act as it’s been published now is more like a rough outline than a final picture, and will need both further legislation and regulations so that it can operate – that’s why the President has not yet announced when it will come into effect (or he withheld the date of commencement),” says Ben Cronin, a law lecturer at the University of Cape Town and former state law adviser in the Western Cape.

Before the Act, or any part of it, can be rolled out, Parliament will need to enact further legislation (including ones providing for its funding) and the necessary regulations – that is, the rules that make the law enforceable – have to be written. “Regulations determine the detail of how the final picture will look; it’s like adding colour and shading,” he explains.

It’s a long process to get to that point, adds Saxby, especially for a piece of legislation that is so intricate and touches on or is affected by many other laws.

“Once regulations for an Act, or a part of it, have been drafted, they are submitted to the department’s minister. If approved, the minister will, in a series of steps, present them to the Cabinet, after which they’re published in the Government Gazette so that the public can give their input. A period of 30 to 90 days is usually allowed for public comment and, based on this input, the regulations can be revised and then again have to go through the approval process in Cabinet.”

Only once the regulations (or the part for which they were written) are final, is the law ready to be promulgated, which means that the President’s formal announcement can be published in the Government Gazette.

Can the Act be overturned?

Cronin says “the process for repealing an Act is not different from that of passing a new one – it will just require an ordinary majority on the day of the vote in Parliament”.

But, he adds that opponents of the NHI Act might not need to fully repeal it to achieve their goals.

Parliament could thwart the NHI Fund by simply withholding the next pieces of legislation needed to make the NHI work (such as bills introduced by the finance minister to allocate money to the fund), he says. This would “effectively scupper” the NHI Fund and make it a “car without an engine”.

To make any changes to the Act – officially called amendments – the usual legislative process will have to be followed, explains Sasha Stevenson, executive director of the human rights law centre, SECTION27. This means the Health Department will have to table an amendment bill in Parliament, where it will be debated again, followed by input from the public. Only then can there be a decision on whether the change is accepted or dropped.

Although regulations are easier to change than an Act itself, “you can’t fix a law through regulations”, she says.

How would the Act go forward, if at all?

Rolling out the NHI will be a gradual process. At the signing at the Union Buildings last month, Nicholas Crisp, NHI deputy director-general in the national Health Department, told Bhekisisa that once the regulations for a section or clause are ready, the minister can propose by when that part of the Act should be promulgated – that is, publicly announced, by publication in the Government Gazette, that it’s ready to be put into effect – but the President decides on the specific date.

Crisp says that because there’s no board or fund for the NHI yet, it’s impractical to bring the entire Act into effect simultaneously. However, its wording does allow for staggered roll-out dates, with an initial phase of four years (2023 to 2026) to set up a board and its administration.

Heads of four of the five chief directorates for the NHI’s branch within the Health Department – health product procurement; digital systems; service provider management; and healthcare benefits and provider payment design – were appointed in 2023. The chief director for risk identification and fraud prevention still needs to be appointed.

At the signing in May, (then) Health Minister Joe Phaahla said the Health Department was already preparing regulations for the NHI Fund and its structures.

If it does go forward, what will happen first?

The first thing that needs to happen for the NHI to get off the ground is the appointment of a board (once the regulations for this are ready), Crisp told Bhekisisa.

The board will, in turn, be able to appoint a CEO for the fund, and the board and the minister will set up technical committees to help with specialised knowledge. An important one would be the benefits committee, which will work out what services the NHI will cover, explains Mahomed.

“NHI-funded healthcare may be available if we have the flu or pneumonia, or our children need immunisation, but what if I’ve got a rare form of cancer? Will the NHI pay for that? This benefits committee work is crucial in guiding the actual financial structure of the fund.”

Working out the prices for treatment – and what service providers such as general practitioners,  physiotherapists, dentists and pharmacists who will form so-called contracting units for primary healthcare, will be paid – will require another committee. Mahomed says each province has had pilot sites to test how the contracts should work.

How long will it take to implement fully?

Rolling out the NHI will take many years, experts have said.

Two phases for getting the NHI off the ground are described in the Act. The first will run from 2023 to 2026, to set up the administration of the fund and shifting the control of central hospitals from the provinces to the national Health Department. “That’s also a bone of contention,” notes Mahomed, “because the national department has never managed services directly. But that’s one of the goals for the first phase.”

The second phase – from 2026 to 2028 – is about “actually putting in place the building blocks for the NHI to function”, he explains, such as setting up contracting units and how hospital services and emergency services will be funded by the NHI.

While the exact timeline for rolling out regulations is not fixed because of political, economic and administrative issues, experts say strengthening the health system has to start now “rather than waiting for NHI to solve all problems”. DM

This story was produced by the Bhekisisa Centre for Health Journalism. Sign up for the newsletter.

Road to NHI just got rockier — with only two GNU parties supporting it, what will happen to the Act?