Issued by Daniela Ellerbeck on behalf of the FW de Klerk Foundation on 06/06/2025

Today, the FW de Klerk Foundation submitted formal comments on the Department of Health’s Proposed Governance Regulations for the National Health Insurance Fund (“the NHI Regulations”). The Regulations are to be issued by the Minister under powers granted to him by the National Health Insurance Act, 2023, (“the NHI Act”). The NHI Act is yet to come into operation.

“The NHI Act is clear,” says Daniela Ellerbeck, an attorney and the FW de Klerk Foundation’s Constitutional Rights Programme Manager. “The Minister can only make regulations after he has consulted with both the National Health Insurance Fund and the National Health Council.”

The Fund must be governed by a Board, yet no Board members have been appointed yet. “Without a Board, the Fund cannot be consulted. That makes any attempt to issue these NHI Regulations unlawful,” Ellerbeck explains.

Should the Minister proceed to issue the NHI Regulations, he will be acting beyond the powers given to him by the NHI Act (i.e. ultra vires). This means that a court can set the NHI Regulations aside.

The Foundation has called for the draft NHI Regulations to be withdrawn – until the Minister has first consulted the Fund. The window for public comment closes today.