The Department of Health has told critics of the National Health Insurance scheme that, like it or not, the NHI Act is law, and there’s no space for “back door” settlements to change that.
Instead, any changes to the NHI Act should follow the legislative process for amending laws, if necessary, or leave it to the courts to address any alleged shortcomings.
Responding to an article about Finance Minister Enoch Godongwana’s call for stakeholders to come together to settle NHI issues out of court—and stakeholders’ rejection of this call—the department said that laws cannot be settled or renegotiated in this manner.
Department representatives said that trying to renegotiate laws through processes after the fact undermines the authority and credibility of the legislative process itself.
“You cannot have a situation where Parliament debates, consults, and passes a law, only for key aspects of that law to be reopened or diluted immediately after promulgation through parallel negotiations,” it said.
“That turns legislation into something provisional, negotiable, and politically reversible after the fact – which is fundamentally incompatible with constitutional governance and the rule of law.”
The department said that stakeholders who failed to convince lawmakers have avenues to address this, such as the legal route they have taken.
“The correct and legitimate route is judicial review,” it said. “Courts exist precisely to test constitutionality.”
However, it said that it is not a substitute for democratic policymaking.
“Courts may test constitutionality; they do not rewrite the mandate of Parliament simply because opponents refuse to accept the outcome.”
“Let us state the core fact plainly: NHI is law. It is not a draft policy. It is not a discussion document. It is an Act of Parliament, signed by the President, after years of public participation and legislative process,” it said.
“South Africa is therefore not in a bargaining phase about whether universal health financing reform should happen. We are in an implementation phase – and the country must move forward.”
The department’s full response has been included below:
Department of Health Right of Reply
BusinessTech’s article (20 Jan 2026), “NHI ‘peace’ plan falls flat in South Africa”, mischaracterises what is unfolding and frames the current moment incorrectly.
At its core, this is not a debate about whether National Health Insurance (NHI) is a good idea or whether consensus has been achieved.
It is a question about constitutional process, legislative authority, and the integrity of democratic law-making.
The call for a so-called “peace plan” reflects a troubling trend in South African governance: the growing acceptance of post-hoc political bargaining after legislation has already been duly passed by Parliament and signed into law.
We set a dangerous precedent with the BELA Act by allowing post-legislative arrangements and political agreements to effectively reopen the substance of a law after its adoption.
This has now created an expectation among those opposing the NHI Act that the same route can be followed – namely, losing the debate during the formal legislative process, but then seeking to renegotiate the law through political or administrative back-door settlements.
This undermines the authority and credibility of the legislative process itself.
You cannot have a situation where Parliament debates, consults, and passes a law, only for key aspects of that law to be reopened or diluted immediately after promulgation through parallel negotiations.
That turns legislation into something provisional, negotiable, and politically reversible after the fact – which is fundamentally incompatible with constitutional governance and the rule of law.
If stakeholders fail to persuade lawmakers during the constitutionally prescribed legislative process, the correct and legitimate route is judicial review – not post-legislative bargaining.
Courts exist precisely to test constitutionality. They do not exist to facilitate political renegotiation of democratically adopted laws.
Let us state the core fact plainly: NHI is law. It is not a draft policy. It is not a discussion document. It is an Act of Parliament, signed by the President, after years of public participation and legislative process.
South Africa is therefore not in a bargaining phase about whether universal health financing reform should happen.
We are in an implementation phase – and the country must move forward.
Even if the Constitutional Court were to find certain provisions of the NHI Act unconstitutional, this would most likely result in targeted amendments to specific sections, not the invalidation of the entire Act.
Until such a ruling exists, the Act remains valid and binding, and the state has both a legal and constitutional obligation to implement it.
BusinessTech also repeats claims that government “ignored industry concerns”.
Consultation is important – but consultation is not a veto. If every reform required unanimous approval from those financially exposed to change, South Africa would never implement any redistributive policy, whether in healthcare, education, housing or social security.
Participation must inform decision-making, but it cannot paralyse it indefinitely.
The article’s framing of resistance to NHI as evidence that the policy has “fallen flat” is therefore misleading.
What has failed is not NHI, but the expectation that structural reform must wait for comfort, consensus, or permission from parties invested in preserving the current unequal system.
On affordability, the article cites widely divergent cost estimates and treats uncertainty as proof of failure. This is a category error.
The real national question is not “how expensive is NHI in isolation?” but what value South Africa gets from what it already spends, and why outcomes remain so unequal in a highly fragmented system.
NHI is explicitly designed to address that fragmentation by pooling funds and purchasing services strategically.
On corruption, the risks are real, but the conclusion implied in the article is logically incoherent.
Corruption does not disappear by preserving the status quo. It is addressed through stronger governance, transparent procurement, digital traceability and consequence management – not by abandoning reform altogether.
The existence of risk is neither proof of inevitability nor justification for surrender.
Finally, litigation is a constitutional right – but it is not a substitute for democratic policymaking. Courts may test constitutionality; they do not rewrite the mandate of Parliament simply because opponents refuse to accept the outcome.
NHI is not a “peace plan”. It is the law. The only legitimate national conversation now is not whether NHI must happen, but how to implement it with discipline, urgency and accountability.
Weakening that principle does not merely affect NHI – it erodes the rule of law itself by turning legislation into something permanently provisional and politically reversible.
That is a far more serious risk to constitutional democracy than any policy disagreement about healthcare financing.
Dr Adiel Chikobvu is a public servant; Dr Sanele Ngcobo is a Senior Lecturer at the University of Pretoria; Dr Josias Naidoo is a healthcare executive and audiologist.
