National Health Insurance (NHI) Bill: clause 2 to 4 deliberations

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01 June 2022
Chairperson: Dr K Jacobs (ANC)
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Meeting Summary

Video (Part 1)

Video (Part 2)

NHI: Tracking the Bill through Parliament

In this hybrid meeting, the Committee commenced the clause-by-clause deliberations on the Bill.

The Democratic Alliance (DA), Economic Freedom Fighters (EFF) and Freedom Front Plus (FF+) indicated their opposition to the Bill upfront and the varying reasons for this.

The DA said the Bill in its current form was not supported, specifically given the current status of the health system and broader economic challenges. There were issues with the proposed formulation of the Board of the Fund and appointment of executive members. It was suggested that no social impact assessment study was conducted nor financial modelling of how national health insurance would be funded. Concern was raised about the burden it would place on the diminishing tax base and the lack of improvement in healthcare infrastructure to date. It was suggested that the Bill would meet constitutional challenges.

The Freedom Front Plus suggested that the healthcare framework essentially needed to be formulated by healthcare practitioners and the health sector, not government.

The EFF said the current Bill did not offer the benefits of universal healthcare to South Africans.

The African National Congress indicated its support of the Bill, particularly given the long historical need for the provision of quality healthcare to all.

Similarly, the Inkatha Freedom Party supported the Bill, noting that improvements could be made along the way.
Concern was raised about how the Bill impacted other legislation and vice versa. It was put forward that clause 3(5) be amended to exclude the Fund from the provisions of the Competition Act of 1998 but not the providers and suppliers. It was proposed that the Bill be amended to reflect multiple purchasers and multiple payers rather than a single payer/purchaser model. Concern was raised about the healthcare coverage of asylum seekers, illegal foreigners and migrants, and the definitions thereof. It was suggested that funding be mobilised from originating countries and multi-lateral agencies to provide illegal foreigners with comprehensive healthcare services. Furthermore, the contradictions relating to healthcare travel insurance were discussed. Concern around the power of the Minister, as outlined in the Bill, was raised.

The Committee reached until clause 5 and agreed to schedule multiple meetings – to continue deliberations -  before the recess break.

Meeting report

Opening Remarks
The Chairperson made brief opening remarks. Those in attendance were noted as well as the apologies.

Introductions by the National Department of Health (DoH)
Officials from the DoH introduced themselves:
Dr Nicholas Crisp, DDG: National Health Insurance
Mr Micro Moabelo, Director: Legal Services
Mr Ramphelane Morewane, Acting DDG: Primary Healthcare
Mr Joe Kgatla, Parliamentary Liaison Officer 

Introductions by the State Law Advisors
Adv Ayesha Johaar, State Law Advisor and Mr Theodore Hercules, Principal State Law Advisor, introduced themselves.

Introductions by the Parliamentary Legal Advisor
Ms Sueanne Isaac, Parliamentary Legal Advisor, introduced herself.

Remarks by the Chairperson
The Chairperson referred to Rule 286(6) of the Rules of the National Assembly. According to the Rules, the Committee needed to apply the following stages when dealing with an introduced bill: an informal discussion on the principle and subject of the Bill, including a briefing by the Department concerned and in the case of a Member’s bill, by the Member concerned and consideration of public comments received; the adoption of a Motion of Desirability (MOD), relating to whether the principle and need of the Bill were accepted; invitation for further public comment, submissions on the substance of the Bill, followed by oral hearings and examination of such; deliberations needed to take place by Members, taking into consideration the proposed amendments and comments as well as proposals received, and evidence presented; a formal clause by clause consideration of the Bill, including amendments as formally proposed needed to be carried out.

The Committee had previously adopted the MOD of the Bill, the Committee was now at the next stage, being the deliberation by Members, taking into consideration proposed amendments, comments and proposals received, as well as evidence presented. This meeting was for discussion purposes. The Committee would hold a formal follow-up meeting to consider the clause by clause deliberations on the Bill, this would include amendments as proposed.

Ms E Wilson (DA) stated that the Committee was present for an important meeting, to discuss an important Bill. Members were advised the previous week that clause by clause deliberations would take place in-person. At great cost, the representatives of the Department were present along with various State law advisors and legal persons. No other African National Congress (ANC) Members were present in-person, apart from the Chairperson who resided in Cape Town where the in-person meeting was being held. She suggested that it was unacceptable to have such a poor in-person turn-out to discuss such an important Bill.

Ms M Clarke (DA) agreed with Ms Wilson. The whole country was expected to be back at work, parliamentarians should be doing the same. There was no excuse. There was a venue and space to do deliberations. She requested that this matter be taken up strongly with all the Members of the Committee.

The Chairperson stated that this matter would be taken up with Members.

Ms A Gela (ANC) asked if she could comment on this matter.

The Chairperson said that he did not think it was appropriate for her to comment. The points raised were for noting and not for discussion.

Ms Gela said she realised that meetings needed to be in-person, but there were instances where matters were out of Members’ control.

The Chairperson stated that he had made a ruling that there would be no further discussion on the matter.

Mr T Munyai (ANC) stated that the Chairperson had allowed the two Members of the Democratic Alliance (DA) to speak but not others.

Ms Gela interrupted and stated that it was not fair.

The Chairperson stated that the meeting had just started and there were already difficulties. He reminded Members to raise their hands on the platform. He asked that Members follow the rules.

Ms Gela stated that Members attending the meeting virtually were also part of the meeting. Members who were not attending physically had valid reasons for this.

Mr P van Staden (FF Plus) stated that if it was going to be a problem to conduct a hybrid meeting, he suggested the whole process be postponed until after the recess period to resolve the issue in-person

Mr Munyai stated that if one Member was given the opportunity to raise their concern, others should also be allowed to raise their concerns – that was fairness. His ankle had been injured over the weekend, as a consequence, he was seeing a doctor that afternoon. The Committee would formally receive a certificate for this. If the virtual meeting model was banned, then it should not be available to anyone.

Mr N Xaba (ANC) stated that the meeting should proceed as a hybrid model. The challenges of being physically present had been noted. The meeting should proceed; he did not support what Mr van Staden proposed.

Dr S Thembekwayo (EFF) asked how the many comments received, both in writing and orally, would be approached.

The Chairperson noted the points made. The meeting would proceed. The Committee would be taking all comments into consideration, as the Committee went through the Bill from beginning to end in a step-by-step manner.

He stated that he would read through the Bill and allow Members to deliberate on the various clauses of the Bill. Fortunately, the state law advisors and Parliamentary Legal Advisors were present to provide input.

Dr Thembekwayo asked if the Members were not supposed to receive summarised versions of all the public submissions, as the Committee dealt with clause by clause deliberations.

The Chairperson stated that the summary had been sent to Members.

Dr Thembekwayo stated that she had not received it.

The Chairperson stated that if she had not received it via email, it would be re-sent to her.

The Chairperson stated that he had received it and confirmed that the whole of the Committee was included in those emails.

Mr Munyai confirmed that he had received it.

Dr Thembekwayo asked that it be communicated to her.


Preamble of the NHI Bill
The Chairperson introduced the preamble to the NHI Bill. Thereafter, he asked for input from Members on this. 

The Preamble made reference to the historical context of the country, the relevance of the Bill in the context of the Constitution and rights it promoted and the need to achieve the progressive realisation of the right of access to quality personal healthcare services.

Ms Clarke stated that in order to establish and maintain such a Fund, a capable state was needed which had the capacity, the political stability and general ability to deliver universal healthcare to every citizen of South Africa. Given the current state of the economy, especially state-run enterprises, it was common knowledge that the government would not be able to effectively establish and maintain such an undertaking. Notwithstanding the ability of the State to bring such reform, the NHI Bill in its current form, left much room for improvement, including on the registration of persons as users of the Fund, healthcare services coverage and referral pathways. The appointment, formulation and composition of the Board of the Fund and the appointment of the Chief Executive Officer (CEO) were not supported. There was a lack of parliamentary oversight in appointing the proposed board members. Further to this, there was a lack of grounds for automatic disqualification of board members, as contained in the Bill. This applied to the appointment of the chairperson, the courtroom requirements, the lack of eligibility criteria for the appointment of the CEO, and the lack of eligibility criteria for people to serve on technical committees. The formulation and composition of the advisory committees were inadequate as they excluded people from civil society and labour. There was much left to be desired in the composition of the benefits advisory and healthcare benefits advisory committees, the appointment of the chairpersons of the advisory committees, the absence of open and transparent proceedings and lack of automatic grounds for disqualification of members of the advisory committees. The accreditation of service providers, the appeal of process, the issuing of regulations by the Minister and transitional arrangements were insufficient, as contained in the Bill. Due to all of these issues, the way the Bill was currently set up would require significant changes. As the Committee worked through the Bill, the DA would give its recommendations on the changes. In its current form, the DA would not be able to support the Bill.

The current socio-economic injustices in the country were severe. The country had the highest inequality rate in the world. There was no social impact study done, nor financial model for the NHI Bill outlining how it would be funded. The day before, the country had witnessed the rise in fuel prices again. Placing further taxes on the surviving middle class would put people into a situation where they were unable to afford the cost of living. One needed to look at tax levying against citizens of the country – one could not levy such high taxes on such a small tax base. The DA supported universal healthcare, it was a necessity for every South African. However, one also needed to fix the current context. One could not compare the country to first world countries that had the infrastructure needed for such a system. That infrastructure needed to be fixed to provide the healthcare needed within the context of South Africa.

Mr van Staden stated that it was abundantly clear that the NHI could not be implemented and it was not the correct way to provide health services to 58 million South Africans. There needed to be a plan for the healthcare system that incorporated both the private and public healthcare sectors, wherein the public healthcare sector needed to be further developed. The healthcare workers across both sectors needed to work together to put such a system in place. It was not the government’s responsibility to develop this system, it was the responsibility of ‘all medical professionals’ who worked hard to keep South Africans healthy. The country needed a system developed by medical experts and not politicians nor government officials. There needed to be a system where politicians listened to the proposals of medical professionals in both the public and private healthcare sectors.

Ms Wilson stated that there was no evidence that suggested that South Africa’s public health service was systematically improving. The health system had gone backward, particularly in the neonatal sections. There were publicly expressed concerns that the health system was in crisis. This called for serious intervention from government. From the Lancet Commission report, the findings were that poor people, particularly those in rural areas with health conditions, such as mental illness bore the brunt of poor quality healthcare. There was nothing in the NHI Bill that indicated that any of those kinds of matters would be addressed. The discussion had been around introducing primary healthcare over time, it was unknown how much time. On top of that, the Auditor General reported litigation claims in the public health sector which amounted to R1.2 billion, this had placed an extra burden on the Department of Health, which was about to become the single purchaser and would likely have to use all that money to pay litigation claims. These claims were increasing by the day due to regression in healthcare services. Notwithstanding the Constitution and numerous health policies that indicated government’s commitment to high quality health, which the Constitution enabled, what was seen in all the reports was the failure in ethical leadership and management of the government to contribute to quality healthcare. These failures were exacerbated by mismanagement and incompetence at all levels of the health system. This Bill remained a ‘dream-work’ if none of the issues on the ground was addressed. The fact that the Bill wanted to ‘limit fraud and corruption’ was a standing joke – because this was what was seen day-in and day-out. There was news on this every day The major concern was the contributing factor of poor performance of the public healthcare system. The DA would reject the Bill as it stood. 

Dr Thembekwayo stated that the Economic Freedom Fighters (EFF) did not support the NHI Bill in its present form, under the guise of achieving universal healthcare coverage. The EFF supported the pooling of funds, the purpose of directing those funds into the betterment of infrastructure – nothing was being done to improve the infrastructure problem. The NHI did not offer the benefits of universal healthcare.

Mr van Staden stated that Freedom Front Plus (FF Plus) rejected the Bill.

Ms H Ismail (DA) reiterated that the DA did not support the Bill in its current form. The Bill had massive financial consequences. There were constitutional challenges to the NHI Bill. The fact that asylum seekers were excluded from the right to enjoy universal healthcare – whereas the Constitution allowed for the provision of healthcare services to all was problematic. The documents required to register for the Fund, would bar many South Africans from accessing it, and essentially excluded them from healthcare, which was directly opposed to what universal healthcare was all about. The Bill undermined the separation of powers by giving unfettered powers to the Health Minister. The Bill removed the aspect of choice from South Africans, specifically where to get healthcare from, it would outlaw medical aids in the long run. There were major infrastructure challenges and a shortage of critical healthcare workers and staff at health facilities. The DA did not support the Bill.

The Chairperson appreciated the inputs given. He had allowed Members to give those inputs again, so as not to stifle debate. He had allowed Members to speak outside of what the Committee was dealing with that day. He asked that Members limit their comments to the clauses discussed and not the wider Bill.

Ms Gela stated that she fully supported the implementation of NHI. NHI was long overdue. She understood the mentality of the opposition as ‘they were in the minority.’ She stated that the ‘EFF and the DA were opposing the Bill that would improve the health system.’ The ANC was listening to society and was the ‘leader of society.’ She highlighted the legacy of apartheid and the lack of the provision of adequate healthcare to Blacks under apartheid.

Ms Clarke stated that at no point had the DA stated that it did not support universal healthcare. The DA wanted the healthcare system to be efficient, and for people to receive the treatment they deserved. She objected to what was stated by Ms Gela.

Mr Munyai stated that the ANC throughout its 100 years of existence regarded the unity of freedom of Africans from colonial conquest and apartheid oppression and exploitation as a critical concern and priority. It had fought for economic freedom. Healthcare for all had always been at the top of the ANC’s agenda. He emphasised the role and position of the ANC toward healthcare service provision across the Country. He highlighted the need for the Bill to be implemented, given the history of the Country and efforts made to date toward universal healthcare coverage.

Ms M Hlengwa (IFP) stated that the Inkatha Freedom Party (IFP) supported the Bill, having heard the needs and suffering of people on the ground. The Bill would help uplift the people of the country. She suggested the Bill was the starting point, improvements could be made along the way. No Bill was perfect.

Mr Xaba stated that Mr Munyai had covered him. The ANC was in support of the Bill. The South African public and private health sectors would work together where equity and access to quality health services were concerned.

The Chairperson stated that the meeting needed to move on, he hoped that Members would not provide long inputs on every aspect of the Bill. He stated that Members had not provided input on the preamble of the Bill, which had been the subject of this discussion. He assumed that the Members therefore agreed on what was outlined. He asked that Members confine themselves to what was asked otherwise he would stop them.

Dr Thembekwayo stated that the EFF was not in agreement with the contents of the NHI Bill in its present form. She requested that the Chairperson should not suggest that the Committee agreed. The EFF was not in agreement.

Ms Clarke stated that the DA was obviously in agreement with the preamble, where the Constitution was concerned. The DA however did not support what the Bill stated in the beginning, as there were certain issues that needed to be seriously addressed in the country.

Mr Munyai agreed with what the Chairperson read. The purpose of the Bill should be left as it stood. The ANC agreed with the matters outlined therein.

Ms Wilson referred to the part of the preamble where it stated that ‘in order to – create a single framework throughout the Republic for the public funding and public purchasing of healthcare services, medicines, health goods and health related products, and to eliminate the fragmentation of healthcare funding in the Republic.’ This suggested that the framework established one mechanism where government would guarantee social protection to healthcare – this was healthcare purchased by the NHI Fund. As control of financing also implied control over service planning – effectively provincial health administrations would for all practical purposes cease to play a role. Accordingly, health services would cease to be a concurrent function between national and provincial governments, thereby nullifying the constitutional allocation of those functions.

Mr Xaba agreed with what was read, as it was in line with the Constitution.

Mr Munyai stated that the Constitution was transformative and anti-poverty as contained in the preamble. The rights of the rich and privileged could not tramp socio-economic rights nor the hierarchy of rights. It was important that the right being identified, was the right to freedom of choice, including referral pathways.

Long Title
The Chairperson stated that the Committee would reconsider the long title, if there were amendments in the Bill that required it to be changed.

Ms Wilson asked when proposed changes to the wording of the long title would be heard. She requested clarity on this.

The Chairperson stated that he would require input from the Legal Advisors on the matter.

Mr Hercules explained that the long title was a summary of the Bill. Input had been made regarding changes to the wording. The Committee would need to come back to this at the appropriate stage, after having gone through all the clauses. The preamble was basically the broader statement of what the underlying policy of the Bill was and the constitutional imperatives captured in the Bill.

The Chairperson thanked him for that input and stated that the Committee would move on to the next clause.

Mr Hercules stated that clause 1 was basically a summary of the terms defined per clause contained in the Bill. It was up to the Committee if it wanted to go through each of the terms or leave it as a reference point for discussion, when each clause was dealt with.

Ms Isaac alerted the Committee that there were quite a number of submissions received on the definitions. The Committee would therefore need to consider these at some point. She acknowledged that it was important to consider the definitions within the context that they were used. 

Adv Johaar stated that considering the definitions in isolation of the substantive clauses of the Bill might be a futile exercise. When the relevant definition came up for consideration within the context of the Bill, one could discuss the inputs made to the definition and if the definition, as used in the specific context of the substantive clause, was what the Committee desired.

Mr Munyai asked that the Committee go through the definitions as well as come back to them when discussing each clause.

Dr Thembekwayo suggested that the Committee engage with the definitions upfront so that when it encountered the terms within their contexts, the Committee was prepared to conduct a comparative study of their appropriateness.

Ms Wilson stated that a list of definitions was simply a list of definitions. One could refer back to the definitions, from the context of the Bill. The definitions could be dealt with when the Committee did clause by clause deliberations. 

The Chairperson stated that where a definition was raised in the context of the Bill, it could be addressed at a later time.

Mr Munyai stated that the definition of ‘healthcare services’ was adequate and should not be amended, this was in line with Constitution. Any reference for provisional services would be provided for in the regulations. On the issue of ‘health-related products,’ he suggested ‘orthodox’ be changed to ‘allopathic’ or ‘conventional medicine.’ He suggested that ‘illegal foreigner’ meant a foreigner who was in the country in contravention of the Immigration Act. ‘Quality of care’ referred to safe, patient-centred, timely, efficient and equitable provision of healthcare.

Ms Wilson made a point of order. It was clearly stated by the State Law Advisor that the Committee would go through the Bill clause by clause and then deal with the wording and amendments in the process as it went along.

The Chairperson stated that Mr Munyai had mentioned a number of definitions where he had proposed that the definitions be changed. He had been trying to follow which definitions those were. The input would be noted. He asked that the proposals be emailed to Members to make it clear to them what was being suggested. The proposals made by Mr Munyai would be accepted and this would be emailed to the Secretary who would share them with Members. During the next steps, the Committee would consider and discuss these definitions.

Chapter 1: Purpose and application of Act
The Chairperson read through the first Chapter which dealt with the purpose and application of the Act. The purpose of the Bill was to establish and maintain a National Health Insurance Fund in the Republic funded through mandatory prepayment that aimed to achieve sustainable and affordable universal access to quality health care services.

Ms Wilson raised concerns about the single purchaser and single payer system, particularly how it affected the provinces. There was an issue of sustainability. The wording needed to be addressed. Clause 3(4) stated that the Bill did not in any way change or affect the functions of the organs of State until relevant legislation had been amended. It was common knowledge that in order to make the NHI Bill effective, not one, but several pieces of legislation needed to be amended. It was important to look at this particular clause, clause 3 of the Bill, and see how it impacted other legislation and which amendments needed to come first.

Ms Clarke stated that there were a lot of changes that needed to be made to the Bill to get it where it needed to be. The DA did not support a single tier system – as the DA believed that the private healthcare system in the country had a role to play in assisting the State in providing quality universal healthcare. If one looked at the public healthcare sector, it was really stretched and under-resourced. The vast majority of hospitals and clinics were operating far below the required standard. Infrastructure needed to be looked at. Poor management, underfunding and under-staffing were issues that needed to be addressed. The private healthcare sector had not escaped government’s ineptitude – market failures had resulted in higher costs of medical schemes. The legislative framework prevented alternative forms of coverage through medical schemes and other insurance arrangements – that needed to be looked at. The role of provincial healthcare had been discussed. Many changes needed to be made to the Bill. If one looked at the pilot projects – these should indicate what needed to be changed. Above all else, the Bill required a capable State. It was recommended that all the issues be looked at and brought back to the Committee to see how to improve the healthcare system in implementing NHI.

Mr Munyai agreed with what he had read with one exception. On the ‘purpose of the Act,’ no changes were recommended. On the ‘application of the Act,’ clause 3(2) of the Bill was not supported. The South African Police Services (SAPS) did not have that dispensation. He suggested that clause 3(5) be reformulated to exempt the Fund but not the providers and suppliers of the healthcare services in terms of the Competition Act. The way it currently stood would be undesirable as it could promote collusion and corruption amongst the providers and suppliers. The clause should be amended to read as follows, ‘the Fund must be exempted from the provision of the Competition Act, 1998 (Act No. 89 of 1998).’ 

Mr Xaba supported the proposal that no changes be made to clause 2, he supported the amendments that would be communicated relating to clause 3(2) and (5) of the Bill.

Dr Thembekwayo stated that clause 2(a) of the Bill, which dealt with the single purchaser and single payer, should be read multiple purchasers and multiple payers, given the Personal Protective Equipment saga. The EFF was of the view that under clause 2(c) of the Bill, the pooling of funds needed to be advocated for, to consider the betterment of infrastructure by ensuring that more hospitals and clinics were built that were open and functioned for 24 hours in rural areas, townships and informal settlements.

The Chairperson spoke about clause 3(2), specifically the strong request made by SAPS to be included as a third group to whom the Act would not apply. He noted that the South African National Defence Force (SANDF) and the State Security Agency (SSA) were mentioned. The SANDF had their own medical services. Due to the nature of the operations of the SSA, it was included there. He referred to clause 3(5), ‘The Competition Act, 1998 (Act No. 89 of 1998), is not applicable to any transactions concluded in terms of this Act.’ It made sense that the Bill should mention that it was only the Fund that was exempted from the provisions of the Competition Act.

Chapter 2 of the Bill: Access to Health Care Services
The Chairperson stated that Chapter 2 spoke to access to healthcare services. He outlined the contents of the chapter. Clause 4 of the Bill dealt with population coverage, while clause 5 dealt with the registration of users. Subsequently, clause 6 dealt with the rights of users and clause 8, cost coverage. The Fund, in consultation with the Minister, must purchase healthcare services determined by the Benefits Advisory Committee.

A Member of the ANC stated that clause 4(2) needed to be augmented by a sentence that stated ‘to provide a more comprehensive service to illegal foreigners, funding must be sourced from originating countries and multi-lateral agencies, such as UNHCR and the African Union to be negotiated through international agreements.’ The term ‘illegal migrant’ needed to be amended to ‘illegal foreigner‘ in clause 4(3), for the benefit of all children.

Mr E Siwela (ANC) agreed with chapter 2 of the Bill. He wanted to remind Members of the proposal for the change of ‘illegal migrant’ to ‘illegal foreigner.’

Mr Munyai agreed with clause 4(2) – it should not be amended. He echoed what Mr Xaba had said about providing a more comprehensive service to illegal foreigners. Funding should be mobilised from originating countries and multi-lateral agencies for this provision.

Ms Wilson stated that there were a lot of issues with this chapter, particularly where the wording was concerned. The DA had previously raised its concerns about the powers and functions of the Minister and certainly the benefits advisory committee. It was contradictory, clause 4(1)(c) stated that refugees were entitled to services, but later on, it stated that asylum was only entitled to emergency services. Refugees were generally asylum seekers – and how did one differentiate one from the other, if people were fleeing from their country. It was contradictory. In terms of international standards, the country was mandated to protect foreigners. There was a Bill of Rights for that reason. Clause 4 was not clear on what kind of registration one needed to produce to register for health services. Clause 5(a) and (b) were contradictory, where it stated that for a foreigner visiting the Republic for any service or purpose, the sentence started with the word ‘must.’ ‘Must’ could be misinterpreted very easily. It stated that a foreigner ‘must’ have travel insurance – a lot of foreigners were asylum seekers and refugees and would certainly not have travel insurance. Then it said, those who ‘did not’ have travel insurance would only be entitled to emergency medical services and services for notifiable conditions. This would meet a constitutional challenge, it was contradictory and needed to be rephrased. There were international treaties and agreements in place on health for foreigners.

Ms Clarke referred to clause 4(2) which determined that asylum seekers and illegal foreigners were only entitled to emergency medical services and services for notifiable diseases of public health concern. It could be argued that the Bill should provide more guidance on what constitutes emergency legal services and notifiable conditions of public health concern. Currently, the definition of ‘emergency medical services’ was inadequate, as it did not provide for the exact meaning of ‘emergency.’ The Bill did not define ‘notifiable conditions of public health concern.’ As asylum seekers and illegal foreigners were only entitled to these services in terms of the Bill, the exact scope and ambit of these services should be clearly set out. Notwithstanding the vague nature of the health services available to asylum seekers and illegal foreigners, it should be highlighted that Section 27 of the Constitution stated that everyone had the right to access healthcare and did not expressly exclude persons on the grounds of their status as asylum seekers. The State had a Constitutional obligation to protect and guarantee the Constitutional rights of everybody within the borders of South Africa. An argument was made that the right to human dignity should extend to guarantee asylum seekers the right to healthcare envisioned by Section 27 of the Constitution and that they should be entitled to full access to universal healthcare services in South Africa. Clause 4(3) determined that children, including those of asylum seekers or illegal immigrants, were entitled to basic healthcare services, as provided in Section 28(1)(c) of the Constitution. It was not clear why the Bill made use of the terms ‘foreigner’ and ‘migrant’ – clarity was needed on this. It was unclear how the Bill would impose the need for travel insurance, mentioned by Ms Wilson as well.

Dr Thembekwayo stated that clause 4(a) indicated ‘consultation with the Minister’ – consultation should be with the established health council, which included the Minister. Together decisions could be taken on such matters. There were overlaps and contradictions on the matter of illegal migrants and asylum seekers. Those terms needed to be clarified for the Committee. Clause 2 dealt with asylum seekers or illegal foreigners and clause 5 dealt with information about a foreigner visiting the Republic. This needed to be treated the same way as was done in clause 3 of the Bill.

Mr van Staden stated that clause 4(1)(c) and clause 4(2) and (3), stated that asylum seekers, illegal foreigners and children, including children of asylum seekers or illegal immigrants were entitled to basic health care services. However, when one looked at Section 21(8)(c) of the Constitution, it did not make provision for them, only for South African citizens. The Refugees Act stated under section 27(b) that a refugee enjoyed legal protection, which included the rights set out in Chapter 2 of the Constitution and the right to remain in the Republic, in accordance with the Act. Section 27(3) of the Refugees Act stated that no one may be refused emergency medical treatment. This did not make provision for government to put forward that it must provide healthcare services, as determined by the benefits advisory committee to refugees, but must only supply emergency treatment to refugees. Life-threatening emergencies or cases that could not be left unattended constituted ‘emergency treatment.’ It was his view that the submission that asylum seekers, refugees, illegal immigrants etc were entitled to basic healthcare services was basically null and void.

Mr Xaba stated that the Refugees Act had clear definitions of who was a refugee and who was an asylum seeker. The Members needed to familiarise themselves with the Act. The matter of notifiable diseases of public health concern – was defined through the Health Act of 2017 in regulations on notifiable conditions.

Mr Munyai stated that South Africans, including those on long-term resident visas, would be on the Home Affairs identification systems. The Refugees Act and the Immigration Act had clear definitions of who was a ‘refugee’ and who was an ‘asylum seeker.’

Ms Clarke stated that her submission was that the Committee factor in what the Bill of Rights stated, in terms of the various acts that aligned with the Bill.

The Chairperson noted the suggestions made about clause 4(2) and (3). He noted the suggestion that there needed to be more comprehensive services provided to illegal foreigners and that funding needed to be mobilised from originating countries/authorities and unilateral agencies, such as the UNHCR and AU to be negotiated through international agreements. He noted the proposal that the term ‘migrant’ be replaced with ‘foreigner.’ He noted the point made about constitutionality, with reference to the Refugees Act and clauses 4(1)(c) and clause 4(2) being contradictory. He noted the submission about ‘must.’

He agreed on what had been put forward regarding clauses 4(2) and (3) and that the rest of the clauses remain as they were. He stated that it had been captured as such, by those assisting the Committee.

Dr Thembekwayo stated that the Chairperson had not said anything about clause 5 and her comments on that.

The Chairperson stated that on a personal note, his son had been to Germany for his studies, and travel insurance had been required. One would not be allowed a visa without insurance. He heard what Dr Thembekwayo had said, but he suggested the Committee should look at best practice globally. He noted Dr Thembekwayo’s point, however.

Ms Wilson stated that inmates were provided for under in clause 4(d) of the Bill. She was not familiar with the Correctional Services Act  – but maybe the State Law Advisor could provide input on this, an inmate was entitled to benefits in terms of the NHI Fund – what happened in cases where one had illegal migrants who might be an inmate.

Programming discussion
The Chairperson suggested that the next meeting take place on Tuesday 7 June 2022 from 9:30am to 13:00pm and then again from 17:30 to 20:30pm. On 8 June 2022, the Committee would meet from 10am to 13:00pm on 14 June 2022, and after plenary from 17:30pm to 20:30pm. Then on 15 June 2022, the Committee would meet from 10am to 13:00pm. Those were the proposed dates.

Ms Wilson stated that she was happy with the dates, there had been concern about meetings stretching into the recess period, as many had made plans during that period, based on the initial programme. She did not mind if the Committee worked longer hours as long as it did not stretch into the recess.

Mr Munyai suggested the Committee work hard, the same as it had during the oral public hearings. He agreed with the dates and that the Committee should work longer days if necessary. He supported the suggestion made by Ms Wilson.

The meeting was adjourned.


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