21/02/2026
Oh, to be a fly on the wall in government’s NHI situation room
20 February 2026 | Talked About Features | Straight Talk | Gareth Stokes
If the South African government had its way it would be left alone to press its National Health Insurance (NHI) solution on the public over the coming 10, 20 or 30 years. Like a straining carthorse, the ruling African National Congress (ANC) has donned blinkers to shut out any signal that might stay its universal healthcare vision; but blinkers do not prevent events unfolding in the real world.
The inequality deflection
Before plunging into the litany of lawsuits brought against the NHI since it was signed into law on 15 May 2024, it is worth remembering that government has enjoyed control of public sector healthcare infrastructure and related resources for over 30 years, presiding over its decay rather than building on it. If you cut through the strawman framing that blames the private sector for inequality in healthcare, you find a public sector burdened by chronic mismanagement, cronyism and persistent financial control and procurement failures.
Ignoring the systemic issues, NHI seeks to level the playing field between private and public healthcare by securing state control of all healthcare infrastructure, funding and provisioning. As constructed, the legislation enables a de facto nationalisation of the private healthcare sector, perhaps not in ownership but in control.
A disastrous proposal
Sakeliga, a South African business advocacy organisation, is among many private sector interest groups challenging the NHI Act, having filed a comprehensive Constitutional Court challenge on 27 August 2025. In an article titled ‘Resisting the NHI and health-shedding’, the organisation’s CEO and Chief Economist offer a detailed explainer of the Act’s framing and effects. “When President Cyril Ramaphosa signed the NHI Act, he essentially presented a proposal to nationalise healthcare,” wrote CEO Piet le Roux.
Critics are concerned that the Act’s “gaping vagueness” will result in unexpected and sub-optimal decisions over the coming years. For example, two years after its enactment, stakeholders are still unsure of the exact services to be provided under NHI, the budget for said services and the nature of taxpayer funding for the same. The very future of the country’s private medical schemes industry is up in the air too, based on the Section 33 requirement that schemes only pay for treatments not offered under the NHI.
Sakeliga’s commentary is littered with emotive phrases like “health-shedding” and “state-pays-state-controls” to describe the likely outcome and interventionist leanings of the system. “Under the NHI, healthcare professionals would be pressed into being functionaries and patients would be applicants in a state system, stripped of their autonomy,” they write. They label the legislation “a disastrous proposal [that] must be opposed until it is undone or rendered practically impotent” and warn affected parties against entertaining “unnecessary and costly compromises” in their ongoing negotiations with government.
Taken aback by the volume of legal challenges against the NHI, government initially urged stakeholders to consolidate or withdraw their cases in favour of further engagement. But Sakeliga and others argue that by enacting the legislation, government had shifted the terrain from negotiation to judicial review, with most substantive constitutional challenges proceeding through the High Courts.
Rubber-stamping the public consultations?
Some critics have even complained about a rubber-stamped public consultation process on NHI, saying there is little point negotiating with a counterparty that has a track record of showing scant concern for either constructive or critical inputs.
To cover its bases, the Minister of Health then applied to the High Court to halt six constitutional challenges to the NHI Act pending further engagement with stakeholders. Sakeliga fired back by filing a conditional counter-application. “In it we appeal to the court that if legal challenges to the NHI are paused, the state’s implementation of the NHI must also be paused,” they write.
Their principal concern is that the Minister’s stay application would indefinitely suspend judicial scrutiny of the NHI Act while implementation proceeds, effectively “shielding the government’s deeply flawed NHI Act from judicial review, while inflicting ongoing harm on the public, taxpayers, healthcare services and the economy.” But the back-and-forth did not end there.
As Sakeliga’s counter-application made the headlines, civil rights advocacy organisation AfriForum launched another constitutional challenge, which it describes as a comprehensive attack on the NHI Act. The institution is petitioning the country’s top court to have the legislation declared invalid and referred back to Parliament, arguing that the Act dilutes provincial constitutional powers, restricts patient choice and clinical independence and lacks economic rationality.
Compromising rights and freedom of choice
AfriForum’s action is framed as a full constitutional review and is expected to involve factual disputes requiring expert and oral evidence. Speaking to BusinessTech, they warned that the “true cost of NHI will be much more than its mere rand value,” adding that the loss of constitutional rights and freedom of choice would carry a far higher price. As an aside, the cost of NHI has not been computed by government, leaving private sector think tanks to come up with estimates of anything from R200 billion up to more than R1 trillion per year.
FAnews readers, many of whom are intermediaries in the medical schemes sector, are most impacted by Section 33 of the NHI Act, which confines medical schemes to offering only complementary cover once the NHI is fully implemented. If upheld in its current form, this provision would reshape and potentially hollow out the traditional medical scheme brokerage model. The advisory value proposition built on comparing schemes’ options and benefits would be largely irrelevant in a single-purchaser plus insurance top-up environment.
Intermediaries would be unwise to assume business as usual under the current NHI. If the myriad court challenges against the NHI Act fail, their specialised advisory role may have to shift into the mainstream of insurance broking, regulated under the Insurance Act. This partly explains why a long list of industry bodies, medical schemes, professional associations and political parties have stood alongside AfriForum and Sakeliga to launch courtroom challenges of their own.
An Act in implementation
The NHI received little more than a passing mention in the President’s February 2026 State of the Nation Address, with references confined to “making preparations” and investment in academic hospitals. But the Department of Health remains adversarial, maintaining in public statements that the NHI is no longer a policy proposal open to renegotiation but an Act of Parliament now in implementation. In its view, the proper avenue for dissent is judicial review.
If your writer were a fly on the wall in government’s NHI situation room, he would likely observe implementation planning continuing against a backdrop of widening constitutional uncertainty. Officials are being asked to develop accreditation frameworks, funding models and purchasing mechanisms using law that may yet be struck down or materially altered. This means the NHI is being built on a legislative foundation that is both under construction and under legal attack.
The judges will decide…
Judges will have to determine not only the legality of specific provisions of the Act but whether the concentration of purchasing and regulatory authority in a single state-controlled entity passes constitutional muster. South Africa’s health insurance and healthcare provider landscapes will thus be influenced up by the courts; it could be years before the NHI path is clear, and longer still before any definitive progress is made.
