Resist the ‘healthpas’ threat to our constitutional rights


Martin van Staden | Legal Researcher | The Rule of Law Project (RLP)Free Market Foundation | mail me |

When seeking care from a hospital or doctor, patients will now be required to present their proof of registration with the National Health Insurance (NHI) Fund to access healthcare services. Registration can be refused.

Never before have South Africans’ constitutional right to access to healthcare been so brazenly threatened by a power-hungry government. Civil society must resist the proposed NHI scheme with all its might.

Right of choice

According to the German Association for Psychiatry, Psychotherapy and Psychosomatics, ‘patient self-determination is a central ethical principle of medical care’, and ‘every person has the right to make decisions regarding his or her health autonomously, even if these decisions appear irrational to third parties’.


This principle can also be found in the text of our Constitution.

Section 27(1)(a) provides that everyone has the right to have access to healthcare services, and section 27(2) obliges the State to progressively realise this right. These provisions must be read within the context of the commitment in section 1(a) of the Constitution – the founding values – which says South Africa is founded upon the advancement of human rights and freedoms. These and other provisions clearly indicate a constitutional right to free choice as far as healthcare is concerned.

But the NHI practically destroys self-determination insofar as it relates to choosing and receiving medical care.

The Constitution does not empower government to set aside South Africans’ healthcare choices in favour of its own preferences. Indeed, the best interpretation one can assign to section 27 is that government must fund the healthcare services of the poor, something the NHI assuredly does not do.

Healthcare denied

The NHI, instead, makes it impossible for South Africans to continue to have comprehensive medical aid as they currently can.

Instead, if the scheme is signed into law, South Africans’ right to choose their medical care will be denied if health providers do not think there is a ‘medical necessity’ or if there is ‘no cost-effective intervention’ for the condition. If the medical product or treatment they seek is also not in some government-approved list, they will not receive it. This is according to section 7(4) of the NHI Bill.

In other words, if one is faced with an uncommon ailment that costs a significant amount of money to treat, treatment will be denied.

Care seekers may still purchase those services directly if they wish and can afford it, further illustrating how NHI will also serve to milk the South African taxpayer dry by forcing them to now pay triple for their healthcare: what they currently pay for private healthcare, what they currently pay for the existing State healthcare system, and the extra they will need to pay for NHI.

With the introduction of the NHI scheme, which is a partial monopolisation of the healthcare market, any remaining private care will itself become more expensive.

Registration required

Section 5(1) of the bill requires anyone who seeks healthcare services to be registered with the NHI Fund.

Section 5(5) makes it clear that registration, worryingly, may be refused. And most absurdly, given South Africa’s history of requiring people to justify themselves to the authorities in the most innocuous circumstances (like seeking a job in a ‘white’ area), section 5(8) requires healthcare users to present their healthpas (proof of their registration with the Fund) to their healthcare service provider before they can be assisted.

Removal of rights

Why did South Africans protest against the ‘dompas’ during Apartheid?

It was not because they had a problem with identification documentation: every society in the world has some document by which people can identify themselves to each other, businesses, and the authorities. It was because the pass laws took away a pre-existing freedom – the right to move around freely for work or pleasure – and required people to carry these permits to show that they are, in fact, authorised to do so. In other words, where people were once free, they suddenly had to navigate a complex and repressive system of State bureaucracy to enjoy but a vestige of the liberty they are inherently entitled to.

The NHI is no different.

Whereas all South Africans currently have self-determination in matters of healthcare, the NHI will replace this freedom with a complex State-centred system of application, consideration, approval/rejection, and review. It takes healthcare as a basic human right and politicises it. But instead of targeting and disadvantaging one racial group like the dompas did, the NHI scheme robs everyone of their fundamental freedom of choice in healthcare.

Worst of all, it douses the aspirations of the poor of one day having access to quality, private healthcare, and replaces it with the reality that we will all now have to share the same, shoddy public healthcare system that has already failed millions.


The way for government to progressively realise the right to access healthcare, is to provide funding for the private healthcare choices of the poor. This is a far better alternative to subsuming quality private care into the dilapidated, collapsing public health system.

South Africans should not allow themselves to be misled by the good intentions behind the NHI or the inspiring speeches delivered by health department officials. Nobody disagrees that affordable, quality healthcare is an imperative in any society. The NHI, however, is a wrecking ball, and will destroy South Africa’s continent-leading healthcare system.

We have seen how government failed to build a quality public healthcare system, and as a result we should not allow it stewardship over the private healthcare system to which millions of indigent South Africans aspire.



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