President Cyril Ramaphosa
President Cyril Ramaphosa has argued in papers filed to the Pretoria high court that its ruling compelling him to submit his record of decision on assenting to the National Health Insurance (NHI) Act was flawed on 10 counts.
He is appealing the court’s order to hand over the record to the supreme court of appeal (SCA) but indicated that he would also appeal directly to the constitutional court by 27 May. Should the apex court grant him direct access, the president said he would not persist in his application to the SCA.
Ramaphosa argued that the high court made grave errors in law when, in a ruling handed down on 6 May in favour of the Board of Healthcare Funders (BHF), it held that his decision was reviewable and ordered him to hand over the record within 10 calendar days.
He advanced 10 grounds of review, including that the court lacked jurisdiction in the matter and erred in finding that his decision to sign the NHI Bill into law was reviewable.
Because BHF alleged a failure by the president to fulfil his constitutional duty, Ramaphosa submitted, only the apex court could hear the matter because it alone has the power to determine whether that is so in terms of section 167(4)(e) of the Constitution.
His counsel had argued before the high court that the obligation imposed on the president in section 79 of the Constitution to assent to legislation was assigned only to himself, or an acting president in the case of his absence.
Therefore any breach of this obligation triggered the exclusive jurisdiction of the constitutional court.
They further argued that when deciding whether to assent to a law, the president was exercising a subjective discretion bestowed on him by section 79 of the Constitution.
It was up to him to decide how he went about reaching his decision and an attempt to review this decision in court had significant implications for the separation of powers.
Allowing a high court review would also mean that any person who was unhappy with his decision to sign a Bill into law and had enough money to launch litigation could embark on a courtroom “fishing expedition” to find a flaw in his reasoning.
In this instance, the president’s lawyers argued, the BHF could not point to any reviewable lapse in the process he had followed, yet was trying to halt a legislative process designed to meet the healthcare needs of the whole country.
The BHF, which represents most private medical schemes in South Africa, had argued that Ramaphosa flouted his constitutional duty by failing to scrutinise the constitutionality of the NHI Bill.
It said he acted irrationally when he signed it into law on 15 May 2024 because he ignored submissions that pointed to the patent constitutional defects in the legislation. The BHF said section 79 did not give him untrammelled powers but compelled him to send the Bill back to parliament to remedy these.
The court found no merit in the president’s argument on the separation of powers, and said the step of assenting to a Bill was but part of a lawmaking process that was a reviewable exercise in public power.
“The issue is whether the president has properly applied his mind as required by section 79 of the Constitution when he assented to and signed the NHI Bill after receiving all the objections to the constitutionality of the Bill from the stakeholders including his own legal advisers,” the court said.
“This cannot be said to be intruding into the domain of the principal legislative and executive organs of state which would bring the matter into the remit of the exclusive jurisdiction of the constitutional court.”
It held that a legislative process implies a shared obligation on the National Assembly, the National Council of Provinces and that hence, the case fell within the jurisdiction of the high court.
As to whether Ramaphosa’s decision was reviewable, the court said he exercised the power to sign Bills as a central part to a legislative process. And since all public power must be exercised within the bounds of legality, and this particular one within the constraints of section 79(1) of the Constitution, it was subject to legal review.
Ramaphosa challenged this in the application for leave to appeal filed last week.
“The court reasoned that the president’s obligations are not agent-specific and do not engage the exclusive jurisdiction of the constitutional court,” he submitted. “Respectfully, the court ought to have found the opposite.”
The court was inconsistent, because on the one hand it said the case revolved around his duty, in terms of section 79, to scrutinise the constitutionality of the Bill, yet on the other that the “conduct which is challenged by the applicants in this case does not fall in the category of the president’s failures in fulfilling his constitutional obligations”.
Both could not be true at the same time.
Nor could the court rightly find that assenting to a law was not “agent-specific” when only the president had the power to do so.
Furthermore, Ramaphosa submitted, the separation of powers was implicated because the function he performed in signing a Bill into law was not a legislative one.
“If it were, that would constitute a demonstrable incursion into the terrain of the legislature and breach the separation of powers.”
Ramaphosa argued that assenting to legislation was a politically sensitive matter, where it was left to the president to determine which considerations he had to bear in mind when fulfilling a particular obligation.
It meant “sensitive” not in a party political sense but in the context of separation of powers in that a court had to exercise “extreme caution in determining whether it is capable of second-guessing or assessing” his decision.
The high court had ignored a warning from the apex court, through case law, that in such matters, “which are by their very nature politically sensitive matters”, only it had jurisdiction.
The president signed the Bill into law a fortnight before last year’s general elections. Critics of the decision have said it was a populist move at a moment when it was clear to the ANC that it risked losing its majority.
The legislation has remained one of the main sources of friction in the unity government Ramaphosa assembled after his party won only 40% of the vote.