President Cyril Ramaphosa is currently embroiled in a legal battle over the National Health Insurance (NHI) Act, with papers filed in the Pretoria high court arguing that the ruling compelling him to submit his record of decision was flawed on 10 counts. The court had ordered him to hand over the record to the supreme court of appeal (SCA), but Ramaphosa has indicated that he will also appeal directly to the constitutional court by 27 May.
In his appeal, Ramaphosa argued that the high court made grave errors in law when it held that his decision to sign the NHI Bill into law was reviewable. He advanced 10 grounds of review, including that the court lacked jurisdiction in the matter and erred in finding that his decision was subject to review.
Ramaphosa’s counsel argued that the obligation imposed on the president in the Constitution to assent to legislation was assigned only to himself, or an acting president in his absence. Therefore, any breach of this obligation triggered the exclusive jurisdiction of the constitutional court.
The President’s legal team further argued that when deciding whether to assent to a law, he was exercising a subjective discretion bestowed on him by the Constitution. It was up to him to decide how he reached his decision, and any attempt to review this decision in court would have significant implications for the separation of powers.
Ramaphosa also argued that allowing a high court review would open the floodgates for anyone unhappy with his decision to sign a bill into law to launch litigation and embark on a courtroom “fishing expedition” to find a flaw in his reasoning. In this case, the Board of Healthcare Funders (BHF) could not point to any reviewable lapse in the process he had followed.
The BHF, representing most private medical schemes in South Africa, had argued that Ramaphosa flouted his constitutional duty by failing to scrutinize the constitutionality of the NHI Bill. The court found no merit in the President’s argument on the separation of powers and held that the issue of assenting to a bill was a reviewable exercise in public power.
Ramaphosa challenged this in his application for leave to appeal, arguing that the president’s obligations are not agent-specific and do not engage the exclusive jurisdiction of the constitutional court. The legal battle over the NHI Act continues, with Ramaphosa fighting to retain his decision-making authority in the face of judicial scrutiny. The recent court ruling on the president’s duty to scrutinize the constitutionality of a Bill has sparked controversy and raised questions about the consistency of the decision. In a surprising turn of events, the court found that the president’s actions did not constitute a failure to fulfill his constitutional obligations, despite acknowledging the importance of his duty in such matters.
This inconsistency has left many puzzled, as it seems contradictory to claim that the case revolves around the president’s duty to scrutinize the constitutionality of the Bill, while also stating that his conduct does not fall within the category of failures in fulfilling his obligations. It is clear that both statements cannot be true simultaneously, leading to doubts about the validity of the court’s reasoning.
Moreover, the court’s assertion that assenting to a law was not “agent-specific” raises further concerns. It is undeniable that only the president has the power to sign a Bill into law, making this function inherently specific to the agent. Therefore, the court’s ruling on this matter appears to be flawed and lacking in logical consistency.
President Ramaphosa has argued that the separation of powers is at stake, as signing a Bill into law is not a legislative function but a politically sensitive matter. He emphasized that the decision-making process involves various considerations that only the president is entitled to take into account. This underscores the complexity of the issue and the need for caution in second-guessing the president’s decision.
The high court’s disregard for the apex court’s warning about the sensitivity of such matters is concerning. It is crucial to respect the jurisdiction of the apex court in politically sensitive cases, as it is better equipped to navigate the complexities of the separation of powers. The president’s decision to sign the Bill into law ahead of the elections has been met with criticism, with some viewing it as a populist move to secure the ANC’s majority.
The legislation in question remains a contentious issue in the unity government led by Ramaphosa, following the ANC’s reduced majority in the elections. The ongoing debate surrounding the president’s role in signing Bills into law highlights the delicate balance between political considerations and constitutional duties. It is essential to uphold the principles of the separation of powers and ensure that decisions are made with careful deliberation and respect for constitutional norms.
