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1.1Introduction
The Constitution of the Republic of South Africa forms the bedrock of the country’s legal system, with the Bill of Rights at its core, establishing both rights and responsibilities for the State and its citizens. Section 7 of the Constitution states that the Bill of Rights is the cornerstone of South Africa's democracy, affirming fundamental values such as human dignity, equality, and freedom. This section not only enshrines these rights but also imposes an obligation on the state to actively uphold and promote them.
Section 7(2) mandates the state to respect, protect, promote, and fulfil the rights encapsulated in the Bill of Rights, requiring it to take progressive steps toward their realisation. These obligations have profound implications for the state’s role in ensuring that essential rights, such as access to healthcare, are met. Among these rights, section 27 is of particular significance as it guarantees access to healthcare services, alongside food, water, and social security. Section 27(1)(a) ensures that "everyone has the right to have access to healthcare services, including reproductive healthcare," while section 27(2) compels the state to take reasonable legislative and other measures, within its available resources, to progressively realise these rights.5
1.2 The Existing Framework
In line with the aforementioned constitutional obligations, the National Health Act 61 of 2003 (‘the National Health Act’) was promulgated, serving as a critical step toward establishing a unified and structured health system across the Republic. The National Health Act laid the foundation for addressing disparities in healthcare access, particularly within the public health sector, and contributed to the broader objective of improving the quality of life for all South Africans. However, while the National Health Act was a significant step forward, it was widely understood that further progress was needed to fully realise the constitutional right to universal healthcare.
The introduction of the National Health Insurance Act 20 of 2023 (‘NHI Act’) represents a pivotal moment in this journey. Universal health coverage (‘UHC’) has long been envisioned as essential to achieving the state’s obligations under section 27(2) of the Constitution, and the NHI Act is a direct response to this mandate. The NHI Act seeks to establish the NHI fund which will purchase health care services on behalf of its users and is a step towards realizing universal access to quality healthcare services for all South Africans and permanent residents, regardless of their socio-economic status. It proposes the creation of the National Health Insurance Fund, which will centralize the procurement of health care services, ensuring that financial barriers do not impede access to necessary medical care.
According to the World Health Organization (‘WHO’), UHC means that “all people have access to the full range of quality health services they need, when and where they need them, without financial hardship.” The NHI Act aims to align South Africa’s healthcare system with this global standard, but its success will depend on sustainable funding mechanisms, particularly through tax reforms designed to support the system's long-term viability.