Solidarity loses bid to scrap NHI posts

Trade union Solidarity has lost its high court bid to scrap the health department’s National Health Insurance (NHI) branch, which it argued should have been established only after the NHI bill became law.

Parliament passed the bill in December, but it has yet to be signed into law by President Cyril Ramaphosa.

The ruling, handed down by judge David Unterhalter in the Pretoria high court on Tuesday, is important because it upholds the right of the executive to prepare for legislation before it becomes law with broader implications for other government departments planning reforms.

And though Solidarity lost the case, it won the argument about whether or not it had the standing to challenge the legality of hiring staff to prepare for NHI, which it plans to attack on multiple fronts.

“Although we are disappointed with the verdict, this is merely the opening salvo in our fight for the heart of healthcare in SA. The court has made it clear in its verdict that there is indeed a basis for us to launch these types of application [against the NHI],” said Solidarity’s deputy CEO Anton van Bijl. The union had yet to decide whether to seek leave to appeal against the ruling, he said.

Solidarity was preparing to launch further legal action as soon as Ramaphosa signed the bill into law, he said.

Health department deputy director-general for NHI Nicholas Crisp said the judgment vindicated the department’s argument that it had not overstepped in hiring staff to do preparatory work for the huge reforms envisaged in the bill. “We are not implementing anything, so we were quite surprised that Solidarity took the position that what we are doing is unlawful,” he said.

Extensive work was required to build the digital systems required for NHI and develop new procurement mechanisms for medicines, devices and equipment, he said. Technical work was also getting under way to design benefits to be covered by the fund and plan the process for accrediting health facilities that would provide services to patients.

NHI is the state’s plan for achieving universal health coverage, with all eligible patients receiving healthcare services free at the point of delivery.

Solidarity brought an application against the health minister, the health director-general and the public service and administration minister, seeking to have the department’s recruitment of 44 staff and the establishment of an NHI branch reviewed and set aside.

The union’s central argument was that these steps implemented the bill, which at the time was still being considered by parliament, and the action was therefore unlawful, irrational and failed to respect the constitutional separation of powers between the executive and the legislature.

The respondents’ argument that Solidarity did not have standing was dismissed by Unterhalter, who said the union was acting on behalf of workers to ensure the executive complied with the law.

He found the department’s decisions to hire staff and establish an NHI unit were lawful as they did not enact the NHI bill’s provisions. It was appropriate, he said, for a department to build capacity for expected laws.

“It is hard to see how it is a sound basis for public administration that preparation for the implementation of radical law reform can only commence upon a bill becoming law,” he said.

Crisp said that only 17 of the 44 posts advertised for the branch had been filled due to challenges in attracting suitable candidates.