By Mabalane Mfundisi
South Africa stands at a defining moment in its democratic journey. The NHI Act did not emerge overnight. It followed (a) Over 20 years of policy development (b) Green and White Papers processes (c) Extensive public consultations (d) Parliamentary hearings in 2019 and 2022 (e) National Assembly and National Council of Provinces deliberations majority adoption in 2023 and (f) Presidential assent on 15 May 2024. With all the above, South Africa took a decisive step towards fulfilling one of the most sacred promises of 1994: dignity, equality, and justice for all through provision of universal health coverage. Immediately when the democratic process was completed, those who are guided by their apartheid past as enforcers and collaborators vowed to use the courts to reverse the will of the people as expressed through democratic processes of parliament.
Today, those who supported apartheid do not exist anymore. Apartheid is still a crime against humanity. The effects of apartheid remain visible and those who supported it have now changed colours just like chameleons do. Apartheid had its enforcers and the collaborators who benefited from it and the democratic compromised has made it easy for enforcers and collaborators to shout “constitution,” “rights for all,” “democratic governance” and “rule of law” without being recognised.
When you enter my place of birth and where I grew up, a township called Tlhabane you are greeted by Netcare’s Ferncrest Hospital. In the belly of the township, there lies Tlhabane Health Centre. Tlhabane Health Centre tries its level best, but due to limited capacity to provide medical ward, maternity and specialist care to a large part of the people of Tlhabane and surrounding areas, whilst its services are appreciated, the community is yearning for it to be better and be like Ferncrest Hospital in terms of services it provides at minimal financial cost.
Ferncrest Hospital is said to provide private healthcare services, including a medical ward, maternity, and specialist care to those who can afford to pay through their medical aids or through cash payment. This hospital is a remnant of apartheid creation where the former homeland of Bophuthatswana made it easier for the hospital to be built in a township to serve enforcers and collaborators of apartheid at the detriment of the people of Tlhabane. Many who needed critical medical care went past through Ferncrest without being assisted and before they reached Job Tabane Shimankane Public Hospital, they were declared dead. They could have easily been served and saved at Ferncrest but because they could not afford, they were not worthy to be provided with the requisite health care.
Afriforum, Solidarity, Sakeliga as part of the enforcers and their ilk including their collaborators still have a lot of constituencies that reside in Rustenburg. Their opposition to the implementation of the NHI through using the courts means one thing – they are happy to count the bodies of those who die. It is time the courts who have been called to enter the fray that remember the founding principles laid by Justice Ismail Mahomed whose seminal judgement of S v Makwanyane (1995) laid the foundation that (i) The Constitution is not neutral about history, (ii) The Constitution consciously seeks to transform society and (iii) The courts are custodians of that bridge – ensuring we do not revert to the injustices of the past. Justice Mahomed in his judgement in S v Makwanyane, the Constitutional Court case abolished the death penalty said in part “The Constitution is a historic bridge between the past of a deeply divided society characterised by strife, conflict, untold suffering and injustice, and a future founded on the recognition of human rights, democracy and peaceful co-existence and development opportunities for all South Africans.” Justice Mahomed repeatedly emphasised that the judiciary is not a passive umpire, but a central instrument in moving the country from an unjust, racially stratified order to an order grounded in dignity, equality, and freedom. The NHI Act is grounded in dignity, equality, and freedom.
For those of us who have worked for decades in community health, HIV and TB prevention and care, occupational health and social justice, support for the NHI is not ideological. It is moral. It is constitutional. It is historical. And it is necessary. We look forward to being vindicated by the Constitutional Court when it sits on 5 – 7 May 2026 to hear arguments. We are convinced that the current justices will revisit the guidance of one of their own Justice Ismail Mahomed. In the meantime, whilst we await the voice of the Constitutional Court on the matter, the National Department of Health should steam ahead with implementation of the NHI Act as it is a law signed by President Cyril Ramaphosa after the democratic processes in society and in Parliament. We fully support the strategic and pragmatic approach announced on 20 February 2026 by President Ramaphosa in consultation with the Minister of Health Dr. Aaron Motsoaledi on behalf of government wherein they undertake not to promulgate any provisions of the National Health Insurance (NHI) Act yet. We understand that this tactical move will remain the case until the Constitutional Court (CC) has delivered its judgment on whether due process was followed prior to the Act’s ratification after the hearings scheduled for 5 – 7 May 2026.
At its heart, the NHI asks a simple but profound question – In a democratic South Africa, should access to quality health care depend on income? If the answer is no – and it must be no – then reform is not optional.
South Africa remains one of the most unequal countries in the world. That inequality is not abstract; it is visible in life expectancy, maternal mortality, child survival rates, and access to specialist care.
Today, a minority of South Africans, roughly 16%, access private health care funded by medical schemes. The majority, about 84% depend on the public health system, which carries the overwhelming burden of disease with far fewer resources per capita. The result is a structural divide providing a world-class care for some, overstretched facilities for many.
It is morally indefensible that in a constitutional democracy founded on equality, a person’s income determines the quality and speed of the health care they receive. A child born in a rural village should not face worse survival odds than a child born in an affluent suburb. A mineworker who builds this economy should not struggle to access specialist treatment because he cannot afford medical aid.
Health inequality is not merely unfortunate. It is unjust. It steals dignity. It shortens lives. It entrenches poverty across generations. We have no choice but to accept that this inequality is not normal, and by extension we must accept a hierarchy of human value.
Apartheid was declared a crime against humanity because it institutionalised inequality. It used the law to divide, exclude, and allocate services based on race. It entrenched privilege for a minority while condemning the majority to inferior systems. While democratic South Africa has dismantled racial segregation in law, we must confront an uncomfortable reality that our health system remains deeply divided. Today, access is not formally determined by race, but it is overwhelmingly shaped by income, geography, and historical disadvantage. The practical effect is that many black, working-class, and rural communities remain concentrated in the under-resourced segment of the system.
Those who defend the permanent preservation of a two-tier system argue that the private sector must remain insulated from reform. The question is what does it mean to defend a structure in which the wealthy are shielded from the weaknesses of the public system while the poor are not? We have answered this question through a democratic process that has given us the NHI Act as an answer. Those who defend the permanent preservation of the two-tier system have made a resolve to use the courts to usurp the democratic will of the people by stopping the implementation of the NHI Act. This is not to suggest that disagreement is apartheid. But it is to say that defending entrenched inequality in access to essential services echoes the logic that some lives are entitled to more protection than others. The NHI challenges that logic. It insists that health care should be based on need, not wealth.
South Africa’s constitutional democracy rests on separation of powers. Parliament makes laws after public participation. The Executive implements them. The Judiciary ensures they comply with the Constitution. The NHI Act followed years of policy development, Green and White Papers, public submissions, parliamentary hearings, and national debate. It passed through the National Assembly and the National Council of Provinces before being signed into law. This is democracy in action which must apply for policy choices we like and those we do not like. It is entirely legitimate to challenge a law if it violates the Constitution. Our courts play a vital and indispensable role in safeguarding rights. However, there is an important distinction between constitutional review and policy disagreement.
If courts are used primarily to reverse legislative outcomes that certain interests opposed in Parliament (as is the case with all the court challenges the NHI Act is facing) rather than to remedy constitutional defects, South Africa risk distorting democratic balance. Democracy cannot function if every redistributive reform is indefinitely stalled because those with financial power can litigate until reform collapses. South Africa is not governed by judges. It is governed by the people, through elected representatives, subject to constitutional limits. If laws passed after consultation and debate can be neutralised simply because powerful sectors disapprove, then democratic mandate becomes conditional on elite approval. That is not constitutionalism. When this happen, it is veto by privilege, and we cannot allow it to happen. The Constitutional Court must use the law to deliver justice to us the people on this matter in May 2026.
As I conclude, it is important to state the above which must be obvious to those who want South Africa to work for all, themselves included. The NHI is not a radical departure from our history. It is consistent with it. In 1978, the Alma-Ata Declaration proclaimed that “health is a fundamental human right” and called for universal access to primary health care. It rejected fragmented systems that produce deep inequalities between rich and poor. In 1994, South Africa’s Reconstruction and Development Programme (RDP) committed the democratic state to restructuring the apartheid health system and ensuring universal, accessible services grounded in primary health care. The Constitution reinforces this vision through various sections. Section 27 states that everyone has the right to access health care services and obliges the state to take reasonable legislative measures to progressively realise that right. Section 9 guarantees equality. Section 10 guarantees dignity. In a country with extreme inequality like South Africa, maintaining fragmentation is not neutral. It perpetuates structural imbalance.
The NHI represents a legislative attempt to pool resources more equitably and purchase services for the population. It is a measure aimed at progressively realising constitutional rights in a deeply unequal society. The Constitution does not require the preservation of historical advantage. It requires transformation consistent with dignity and equality.
South Africa’s inequality did not arise by accident. It was constructed over centuries through colonial dispossession and apartheid engineering. Correcting structural inequality requires structural reform. By creating a single national pool to purchase health services, the NHI seeks to break the rigid link between income and access. It aims to strengthen primary health care, reduce financial barriers and ensure that quality care is not reserved for those who can pay medical scheme premiums. This does not mean the reform will be simple. It will require careful implementation, accountability, governance safeguards, and phased development. But difficulty is not an argument for inaction. If we are serious about equality, then universal health coverage is not optional – it is foundational. A domestic worker’s life must carry the same value as a corporate executive. A rural child’s access to care must matter as much as that of an urban professional. That is the meaning of equal dignity.
The debates about NHI during consultations was often framed in technical terms including but not limited to (i) funding models, (ii) procurement mechanisms, (iii) institutional design. All of these and more were considered when public hearings, public submissions, parliamentary hearings, and debates in Parliament happened. They were taken into consideration because these were important discussions. At the end of the engagements, the NHI Act was signed into law, and it is the law and laws must be implemented. Laws can be challenged and the place to do this is primarily through engaging with lawmakers who are parliamentarians that we elect to represent us. At the end of the day, beneath the technical detail lies a moral choice. This choice has been made. At the time, the consideration was – Do we accept a health system permanently divided along economic lines? Or do we attempt to build one based on solidarity?
No reform is perfect at inception. But the absence of reform entrenches injustice. The NHI reflects a commitment to the unfinished work of freedom, which is ensuring that constitutional rights are not theoretical, but lived realities. Health justice cannot wait for perfect consensus. It demands courage. South Africa has confronted injustice before. We dismantled apartheid because it was morally wrong, even when it was administratively complex to replace. We extended the vote to all because exclusion was intolerable. Today, we face another test – the test is whether we are willing to align our health system with the values we proclaim of dignity, equality and human rights or we let things to continue the way they are. Through the NHI Act, we have decided that we want to align our health system with our values that will guarantee and better future for all South Africans.
The NHI is not the end of the journey. It is the beginning of a more equitable one. If we honestly believe that every life has equal worth, then health for all is not negotiable. It is the unfinished business of our democracy.
Mabalane Mfundisi is the founder and Executive Director of Show Me Your Number (SMYN), a not-for-profit organisation that advocates for Universal Health Coverage (UHC) by promoting equitable access to quality, affordable health services for all South Africans. Through community mobilisation, workplace programmes, policy advocacy, and partnerships with government and the private sector, SMYN advances prevention, early detection, linkage to care, and treatment adherence ensuring that no one is left behind in achieving health for all. He is also a national leader in the South African National AIDS Council’s Civil Society Forum. He is also a member of the Steering Committee of the National Dialogue whose Convener is President Cyril Ramaphoosa.
