In early May this year, South Africa’s Constitutional Court became the battleground for one of the most consequential disputes over health legislation since democracy.
The issue before the court was not whether the National Health Insurance (NHI) Act, the government’s proposed road to universal access to healthcare, is a good idea. Rather, the judges were asked to decide whether Parliament followed the correct process when it passed the National Health Insurance Act.
The courtroom was packed. Right-to-health activists sat alongside private hospital owners and funders, trade unionists and government officials. Outside the court the dispute has often been bitter and fractious, before the bench it was respectful.
After two days of argument, the court reserved judgment, possibly until early 2027. The 11 judges, men and women with hundreds of years of shared experience in law and life, have to rule on two cases, one pertaining to the National Assembly and another to the National Council of Provinces, to decide whether the process for public input into the law was followed fairly.
Sadly, whatever way the court rules, it seems likely that disputes and possibly litigation will continue. If the judges rule yes on both cases, then the Act stays put, but more than 10 other court cases, currently on pause, questioning the legality of some of the clauses in the Act, will kick in again. If not, the Act will have to go back to Parliament to be deliberated, once again.
But in some ways, whatever the court decides, should be regarded as a victory: it will be the outcome of a process of rational deliberative thought, analysing evidence, testing arguments against facts, and weighing it all against a deep body of legal principles and precedents.
A process we can trust.
The constitution and the right to health
This NHI is not the first time South Africa‘s courts have been called upon to decide literally matter-of-life-and-death disputes about access to healthcare services.
In fact, over the past three decades, our Constitution (South Africa’s supreme law) and the courts have played an important role in shaping health policy, protecting rights and holding the government accountable
That history matters as we await the NHI ruling(s).
South Africa’s Constitution recognises that health is vital for dignity, equality and social justice.
A healthy democracy literally depends on the good physical and mental health of its population, something my colleagues and I set out in a 2007 book Health and Democracy, A Guide to Human Rights, Health Law and Policy in Post-Apartheid South Africa.
The Constitution gives “everyone” the right to have access to healthcare services and places a duty on the state to use its resources, policies and legislation to steadily improve access to care.
But rights on paper do not automatically become reality.
Health policy and health services are often contested. Under apartheid access to healthcare was largely determined by race, with white people at the top and black people at the bottom.
When it came into effect in 1996, the Constitution could not wave a magic wand to end all of this. Although democracy brought enormous progress, inequality in access to healthcare has worsened, with class now generally having replaced race as a means to access.
As a result, activists, community organisations and patients have repeatedly turned to the Constitution and, when necessary, the courts, to advance the right to health.
The case that changed everything
The best-known example remains the Treatment Action Campaign (TAC)’s case against the Minister of Health. In many ways it was both TAC and the Constitutional Court’s coming of age case.
At the time, the government refused to provide the antiretroviral drug nevirapine to pregnant women with HIV, despite evidence that it could dramatically reduce transmission of HIV from mothers to their babies.
The Constitutional Court ruled that the government had a duty to make the medicine available.
Today it is difficult to imagine the scale of the resistance to HIV treatment at the time.
Yet the judgment helped change the course of the epidemic in South Africa and laid the foundation for one of the world’s largest HIV treatment programmes.
It is not an exaggeration to say that the decision saved hundreds of thousands, if not millions, of lives.Cases like this also showed South Africans something important: the Constitution could be used to improve people’s lives in practical ways.
Former Constitutional Court judge Albie Sachs described the impact the July 2002 judgement had on him:
“As we judges exited, I heard loud cheering from the court chamber and found myself crying. It was not just the impact of the pandemic — it was the knowledge that I was a part of an institution that was defending the fundamental rights of all the people of the land.”
More than HIV
The TAC case was not an isolated victory.
Courts have dealt with disputes protecting prisoners from diseases like TB (the Dudley Lee case); giving women and girls the right to legal, safe abortions; cancer treatment; the duty of government to be transparent about procurement, recently in relation to the terms and conditions for the purchase of COVID-19 vaccines during the pandemic; and the state’s right to regulate the price and safety of markets in the public interest.
Some important victories never even resulted in court judgments.
For example, soon after TAC won in the Constitutional Court in 2002 it launched a complaint against two multinational pharmaceutical companies, GlaxoSmithKlein and Boehringer Ingelheim, arguing that their excessive pricing of three patented antiretroviral medicines was an abuse of market dominance and a violation of the right to health.
After the Competition Commission’s investigation found in favour of TAC, the companies agreed to voluntary licences that dramatically expanded access to affordable HIV medicines, not just in South Africa but across Africa.
The Constitution was also central to the decade-long struggle for justice for 144 victims in the Life Esidimeni tragedy in 2016.
Families of the government mental health patients who died after being transferred from private specialist psychiatric facilities contracted by the government to unsuitable nongovernmental organisations, relied on constitutional rights to dignity, healthcare and life.
Their persistence led to arbitration proceedings and the award of constitutional damages; a criminal inquest and finding of criminal negligence against the Gauteng MEC for health; and, in April 2026, the National Prosecuting Authority’s announcement that they intend to bring charges of culpable homicide against as yet unnamed officials.
More recently, constitutional rights have been used to protect migrants’ access to healthcare in the face of growing xenophobic attacks and attempts to block people from clinics and hospitals.
Why this matters for NHI
The NHI case is different from many of the health cases that came before it.
The Constitutional Court is not being asked how healthcare should be delivered. Rather, it’s being asked whether Parliament followed the Constitution when passing the law.
But the principle is the same.
That process is not quick. Nor does it always produce outcomes that everyone likes.
Yet South Africa’s experience over the past 30 years shows that courts have often strengthened health policy, improved accountability and protested people’s rights.
The NHI judgment will emerge from that same tradition.
A reason for confidence
South Africa faces enormous challenges in healthcare. The road to universal health coverage will not be easy, regardless of what the Constitutional Court decides.
But there is reason for confidence in the institution now considering the case.
The judges are not making decisions based on political slogans or social media campaigns. They are working through evidence, legal principles and decades of precedent built through previous health-rights disputes.
A bulwark for rationality in an age of fraying government and populism.
South Africa’s road to universal health coverage, the underlying objective of NHI, will ultimately be stronger and probably more durable for having been passed through the highest court in the land.
The challenge then will be for human beings to overcome the distrust and conflicts that led to the court cases, take the instructions and spirit of the court, and find ways to work together in the best interests of the right to health.
Mark Heywood is a health, human rights and social justice activist.
This story was produced by the Bhekisisa Centre for Health Journalism. Sign up for the newsletter.
- In early May this year, South Africa’s Constitutional Court became the battleground for one of the most consequential disputes over health legislation since democracy.
- The issue before the court was not whether the National Health Insurance (NHI) Act, the government’s proposed road to universal access to healthcare, is a good idea.
- Rather, the judges were asked to decide whether Parliament followed the correct process when it passed the National Health Insurance Act.
- The courtroom was packed.
- Right-to-health activists sat alongside private hospital owners and funders, trade unionists and government officials.
In early May this year,
After two days of argument, the court reserved judgment, possibly until early 2027.
But in some ways, whatever the court decides, should be regarded as a victory: it will be the outcome of a process of rational deliberative thought, analysing evidence, testing arguments against facts, and weighing it all against a deep body of legal principles and precedents.
A process we can trust.
In fact, over the past three decades, our Constitution (
A healthy democracy literally depends on the good physical and mental health of its population, something my colleagues and I set out in a 2007 book
But rights on paper do not automatically become reality.
When it came into effect in 1996, the Constitution could not wave a magic wand to end all of this.
As a result, activists, community organisations and patients have repeatedly turned to the Constitution and, when necessary, the courts, to advance the right to health.
At the time, the government refused to provide the antiretroviral drug nevirapine to pregnant women with HIV, despite evidence that it could dramatically reduce transmission of HIV from mothers to their babies.
Today it is difficult to imagine the scale of the resistance to HIV treatment at the time.
Yet the judgment helped change the course of the epidemic in
It is not an exaggeration to say that the decision saved hundreds of thousands, if not millions, of lives.Cases like this also showed
Former Constitutional Court judge Albie Sachs described the impact the July 2002 judgement had on him:
“As we judges exited, I heard loud cheering from the court chamber and found myself crying. It was not just the impact of the pandemic — it was the knowledge that I was a part of an institution that was defending the fundamental rights of all the people of the land.”
Courts have dealt with disputes protecting prisoners from diseases like TB (the
Some important victories never even resulted in court judgments.
For example, soon after TAC won in the Constitutional Court in 2002 it launched a complaint against two multinational pharmaceutical companies, GlaxoSmithKlein and
After the Competition Commission’s investigation found in favour of TAC, the companies agreed to voluntary licences that dramatically expanded access to affordable HIV medicines, not just in
Families of the government mental health patients who died after being transferred from private specialist psychiatric facilities contracted by the government to unsuitable nongovernmental organisations, relied on constitutional rights to dignity, healthcare and life.
More recently, constitutional rights have been used to protect migrants’ access to healthcare in the face of growing xenophobic attacks and attempts to block people from clinics and hospitals.
But the principle is the same.
Yet
But there is reason for confidence in the institution now considering the case.
A bulwark for rationality in an age of fraying government and populism.
Mark Heywood is a health, human rights and social justice activist.
