Issued by Daniela Ellerbeck on behalf of the FW de Klerk Foundation on 20/06/2025

Introduction

The FW de Klerk Foundation submitted its formal comments on the Department of Health’s Proposed Governance Regulations for the National Health Insurance Fund. These Regulations are to be issued in terms of the National Health Insurance Act, 2023 (“the NHI Act”). The NHI Act has not yet to come into force.

What Do the NHI Regulations Say?

The Regulations aim to establish the structures and processes for the governance of the NHI Fund – the fund intended to meet the health needs of the entire South African population by purchasing health care services on their behalf (section 9 of the NHI Act). Specifically, the Regulations outline how the NHI Fund’s Board and its Chief Executive Officer will be appointed. These are not small matters: They shape who will hold power over public health care once the NHI Act is rolled out.

Power Must Follow Law

The Minister derives his powers from the law, not vice versa. He cannot wield powers, or perform functions, beyond those that the law has given him.

The Minister himself stated that he will be issuing the NHI Regulations under the NHI Act’s empowering provisions, specifically, section 55 (1)(x), (z) and (Za) of the NHI Act.

These provisions provide that: “(1) Without derogating from the powers conferred on the Minister by the Constitution and the National Health Act or any other applicable law, the Minister may, after consultation with the Fund and the National Health Council contemplated in section 22 of the National Health Act, make regulations regarding—

       (x) the proceedings of the meetings of committees appointed in terms of this Act and a code of conduct for members of those committees;

       (z) any matter that may or must be prescribed in terms of this Act;

       (zA) any ancillary or incidental administrative or procedural matter that may be necessary for the proper implementation or administration of this Act.”

The above empowering provisions are clear: The Minister may only make regulations after consulting with both the Fund and the National Health Council.

The Problem:

The National Health Council exists and is operational, allowing the Minister to have consulted with it on the Regulations. However, the NHI Fund is not. Firstly, because the Act is not yet operational, so the Fund has not yet been created by law. Secondly, because it is to be governed by a Board and none of the Board members have been appointed yet. Indeed, as stated above, the NHI Regulations seek to establish the process for appointing the Board.

So how could the Minister have consulted with a body that does not yet exist? He cannot.

Since the NHI Act requires that the Minister consult with the NHI Fund before making regulations, the Minister currently lacks the authority to make regulations. If he proceeds to do so, he would be acting ultra vires and the Regulations would be unlawful. A court would be able to set the Regulations aside.

Conclusion

The Minister must follow the law: He must ensure that he acts in-line with the NHI Act. If he does not, then anything he does is illegal.

Until the Board is appointed and the Fund is operational, he cannot consult it. Without that consultation, he cannot lawfully issue the Regulations. Thus, the FW de Klerk Foundation has called for the Regulations, currently open for comment, to be withdrawn.

Only after Cabinet has approved the recommended appointments to the Board, the Board is in place and the Minister has consulted with the Board about the Regulations, may he re-gazette said Regulations for public comment.

The law is clear. It must be followed.