From 5 to 7 May, the Constitutional Court will hear challenges to the National Health Insurance Act that could shape health care in South Africa for generations to come. President Ramaphosa has undertaken not to bring any part of the Act into force until the Court rules. The pause is wise. It also gives those of us who support the NHI a chance to speak plainly about why it matters on constitutional grounds, and on the evidence.
Section 27 of the Constitution guarantees everyone the right to have access to health care services. Read with the equality clause and the promise of the Preamble to heal the divisions of the past, that right cannot coexist with a system in which the size of your medical aid determines the quality of your care, and even the length of your life. A country that sorts its citizens by income at the clinic door denies them the conditions under which a life can be fully lived. That is not the country our Constitution imagined.
I have seen this argument tested before. During the HIV/AIDS crisis, when the Treatment Action Campaign took the state to court to demand antiretrovirals, researchers at the Human Sciences Research Council contributed to the national debate about what the Constitution required. The Constitutional Court’s answer was clear: the right to health care binds the state and must be pursued with reasonable, effective measures, not withheld behind walls of delay. That judgment saved lives. It set a standard the NHI must now meet.
The constitutional case for universal coverage is reinforced by evidence the private sector cannot credibly dispute. The Competition Commission’s Health Market Inquiry, chaired by Justice Sandile Ngcobo and released in 2019, conducted the most thorough investigation ever undertaken into South Africa’s private health market. Its findings were damning. Three hospital groups (Netcare, Mediclinic and Life) control more than 80 percent of private hospital beds and 90 percent of admissions. Private healthcare inflation has consistently outpaced consumer inflation. The Inquiry documented supply-induced demand: patients admitted who should not be, procedures performed that need not be, ICU beds occupied for reasons of profit rather than medical necessity. The market, the Inquiry concluded, is “neither effective nor competitive”.
These are the findings of an independent constitutional body applied to the very sector now spending heavily to stop the Act that would bring the NHI to life.
When the Board of Healthcare Funders, the Hospital Association of South Africa, and the South African Private Practitioners Forum appear before the Constitutional Court, they will speak the language of rights and constitutionalism: freedom of choice, provincial autonomy, fair public participation. Some of those concerns deserve a hearing; a constitutional democracy is meant to interrogate its own transformation efforts. But we should not confuse the form of the arguments with their function. Much of this litigation is, at its core, a defence of a lucrative arrangement the Competition Commission has already diagnosed as dysfunctional, dressed in constitutional language to survive constitutional scrutiny.
None of this relieves government of its own constitutional burdens, and here the argument must be honest. Section 27(2) requires reasonable measures, within available resources, to progressively realise the right to health. Reasonableness is the word that does the work, and it cuts both ways. It exposes the private sector’s defence of the indefensible. It also demands that the state build institutions capable of carrying the NHI. We have seen, over the past decade and more, what happens when that demand is not met: state entities captured by patronage networks, procurement systems routinely looted, oversight institutions starved of capacity, public trust eroded to the point that transformation itself is met with suspicion. The NHI cannot be allowed to become another such story. Procurement must be ring-fenced. The Office of Health Standards Compliance must be properly resourced. Public facilities must be strengthened. Those of us who defend NHI on constitutional grounds must be the first to insist on these safeguards, not the last. To demand less of the state than we demand of the private sector is not principled support but constitutes partisanship.
The Constitution is not vindicated by a law alone. It is vindicated in the texture of a life: in the grandmother in Tzaneen who can walk into a clinic and receive timely, dignified care, and then go home to the grandchildren whose futures depend on her. Health is never only an individual good. It is the ground on which families, communities, and a nation learn to flourish together.
At its best, the NHI is ubuntu expressed in institutional form: the recognition that my health is bound up with yours, that flourishing is relational before it is individual, and that a society which sorts its people by what they can pay is a society that denies a full and meaningful life to most of its members. The opposition to NHI is, at its most candid, the defence of a market already found wanting by our own competition authority. The Court’s task is to distinguish the constitutional arguments that deserve its attention from the commercial arguments wearing constitutional attire.
Universal health coverage is not optional for a country committed to dignity, equality, freedom, and the flourishing life the Constitution promises each of us. The Constitution requires it. The evidence confirms it. The question is no longer whether NHI is justified, but whether both the state and its critics can meet the standard the Constitution sets for all of us.
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Narnia Bohler-Muller is an Advocate of the High Court of South Africa and Distinguished Research Specialist at the Human Sciences Research Council. She joins the University of the Free State as Professor in the Flourishing Life Research Theme in June 2026, and writes here in her personal capacity.