grounds for a constitutional argument. In its founding provisions, the Constitution affirms that the state is founded on, among others, the value of the “supremacy of the constitution and the rule of law” (RSA, 1996). The rule of law suggests that legislation should be clear, unambiguous and provide reasonable certainty and sufficient information to enable those affected by it to respond in an informed manner. This notion was supported in the Constitutional Court ruling in Van der Walt v Metcash Trading Ltd 2002 (4) SA 317 (CC). Here, the court stated an absence of arbitrary power and unpredictability as essential elements of its understanding of the rule of law (Venter, 2011). Furthermore, in Affordable Medicines Trust, the court held that legislation should “indicate with reasonable certainty to those who are bound by it what is required of them so that they may regulate their conduct accordingly” (Constitutional Court, 2005).
3. DISCUSSION OF CONSTITUTIONALITY ISSUES AT A ROUNDTABLE OF CONSTITUTIONAL AND LEGAL EXPERTS An online roundtable on the constitutionality of the NHI Bill was hosted on 19 May 2020 via Google Meetup. At the start of the roundtable, participants were reminded that the aim of the discussion was to test whether the previously identified constitutionality issues have merit. Participants were also encouraged to put forth any other legal issues that may need to be considered. The questions that participants at the roundtable had to address were: (1) whether the policy is compatible with constitutional principles; and (2) whether it will also promote the principles of the constitution. The roundtable provided a platform to facilitate robust discussion and debate and not to necessarily establish consensus. Consensus on whether concern for each of the potential constitutionality issues was warranted, was rarely achieved. Below we discuss the various sections of the Constitution where the NHI Bill may be in conflict or infringe on rights as well as participants’ views on each of these possible areas of concern. While some sections raised no concern, with others there was clearer consensus amongst participants of the potentially problematic interaction between the NHI Bill and the Constitution. There was quite a lot of consensus about both Section 22 (right to trade, occupation and profession) and the irrationality argument with regards to NHI which has bearing on the relationship between the NHI Bill and Section 36 of the Constitution. Potential infringement of the NHI Bill on part (a) of Section 27(1):
“Everyone has the right to have access to health care services, including reproductive health care;” Section 27(1) of the Constitution deals with the right to health and healthcare, including reproductive healthcare. The state must provide resources to allow for progressive achievement of these rights and no one must be refused medical treatment. While there is an obligation in terms of Section 27 to provide essential health services, this does not preclude an individual from making their own arrangements for access to healthcare. The fact that there is an obligation to provide access to essential health service implies both a positive and a negative right: the obligation to provide (positive) and also the responsibility to ensure that the obligation does not infringe on the right of people to provide for themselves. It was mentioned that as part of this obligation, it is important that the South African government does not take regressive steps in terms of healthcare provision, that is in an attempt to provide more care to some, take away care from others. Essential health services have not been defined in either the Bill, or by the courts. The term is lacking clear definitional content. A basic benefit package has not been set out in the NHI Bill and it is therefore not possible for the Court to pronounce on whether the health services to be provided by NHI can be considered essential or not.
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POTENTIAL CONSTITUTIONAL ISSUES OF THE PROPOSED NHI IN SOUTH AFRICA
