In constitutional terms, the aim of the NHI is to give effect to the state’s duty in section 27 of the Constitution to take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of the right of access to healthcare.
The Constitution does not and should not prevent the democratically elected government from passing laws merely because an economically powerful minority opposes it.
This new policy aims to eradicate existing inequality in the provision of healthcare services so that everyone more or less has access to the same high-quality healthcare services, provided at a reasonable rate at state expense. Of course, the court does have the power to invalidate the Act on procedural grounds and to invalidate specific provisions of the Act if these unjustifiably limit one or more of the rights in the Bill of Rights. However, its role is a limited one in cases where it is called upon to review legislation that implements the policy choices of the elected government.
If this is so, a major problem with this argument would be that the court would be asked to invalidate legislative provisions based on sweeping claims about their possible effect in the distant future, which is never a winning argument. Moreover, similar arguments advanced infailed to find favour with the Constitutional Court.
So, while in theory a constitutional argument could be made that the NHI would infringe on the section 27 right of access to healthcare of those who already enjoy easy access to high-quality healthcare, if it reduced the easiness of access or the quality of the healthcare, it would be surprising if our courts found that any such limitation was not justifiable in terms of the section 36 limitation clause.
The NHI may turn out to be a damp squib because the government may not be able to fund it. It may also turn out to be a disaster, not only for the privileged but also for those already suffering because of limited access to healthcare. A Constitutional Court is not well placed to protect us all from such a disaster, just as it is would not be well placed to protect us from the disastrous effects of a radical free market policy implemented by another government.
If the NHI is challenged constitutionally, will that pause it being implemented? Or can the government simply forge ahead while being litigated?I have been eagerly awaiting Mr de Vos comments on this topic and he does not disappoint. He is absolutely right that the aims of NHI cannot be faulted, despite what Commentators on this platform might say.
The very persons who NHI are supposed to benefit, are they same ones who have returned the ANC to power again and again since 1994 in spite of the decline in the public sector hospitals, and now the haves ie the over burdened tax payer must foot the bill for this mess that they voted for. Retired folks have a choice, that’s true, but a lot of people belong to medical aids and their only choice is the specific option.
Some years ago Government passed legislation to fix the wholesale and retail prices of scheduled medicines. There were changes in the pharmaceutical and hosputal industries, but they didn’t collapse.I am all for lower prices and all citizens to have access to quality healthcare, as long as it doesn’t impinge on my right to purchase and receive healthcare how I would like to.Although the article looks like it is presenting a legal argument, the drift is pro-NHI.
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