Health Minister Dr Aaron Motsoaledi has issued an apology and clarification following remarks that implied Constitutional Court judges presiding over legal challenges to the National Health Insurance (NHI) Act could be influenced by their access to private healthcare.
In a statement released on Friday, the Department of Health said Motsoaledi’s comments were intended to highlight how South Africa’s deeply unequal two-tier healthcare system disproportionately favours affluent citizens, including politicians, judges and other high-income earners.
The department stressed that the minister’s remarks were not meant to cast doubt on the ability of the judiciary to adjudicate the NHI matter fairly and independently.
Department Of Health Clarifies Motsoaledi’s Constitutional Court Remarks
Department spokesperson Foster Mohale said the minister was referring to the broader structural inequalities within the country’s healthcare landscape.
“This reference was made by the Minister to demonstrate the systemic challenges caused by gross inequalities within the country’s two-tiered health system, characterised by a well-resourced, heavily state-subsidised private sector which caters for a privileged minority, while the majority are dependent on an under-resourced public sector.”
“These comments should in no way be construed as second-guessing the judiciary’s ability to remain impartial when adjudicating challenges to the constitutionality of the NHI,” Mohale said.
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He added that Motsoaledi had complete faith in the courts and their constitutional duty.
The minister, Mohale said, wished to state “categorically that he had full confidence and trust in the fairness and integrity of the judiciary and its commitment to upholding the rights enshrined in the Constitution and the rule of law”.
“If by talking about disparities the Minister is understood to have been attacking the judges the Minister would like to unreservedly apologise and withdraw whatever statements may have been offensive.”
Mohale said Motsoaledi would “not only accept but fully respect any verdict from the judges of the Constitutional Court”.
Motsoaledi Reaffirms Support For National Health Insurance
The minister also expressed regret that his comments may have distracted from the government’s central message on universal healthcare.
“The Minister regrets that these comments may have detracted from the central message he sought to convey, namely that government is committed to the NHI as the viable mechanism for our country to realise universal healthcare coverage in line with the provisions of section 27 of the Constitution which guarantees everyone the right to access healthcare services, including reproductive healthcare.”
“What this means is that we must ensure a health system where every person, no matter their social status, has access to quality health care without having to worry about how they will pay for that care.”
The controversy stems from remarks Motsoaledi reportedly made during an International Nurses Day event in KuGompo City, formerly East London, on 11 May.
During the event, he was asked whether Constitutional Court judges could objectively decide the NHI case given that they are members of Parmed.
Parmed, the Parliament and Provincial Medical Aid Scheme, is available to judges, members of Parliament and members of provincial legislatures.
Motsoaledi reportedly responded, “I was looking at those judges in their eyes (during the NHI court case). They are beneficiaries of the same system that I am talking about, but they must (preside over a) judgment.”
Judges Matter Condemns Comments On Judicial Independence
The remarks drew a sharp response from Judges Matter, which described them as a “gratuitous attack” on the independence and integrity of the Constitutional Court and the broader judiciary.
“Section 165(2) of the Constitution is clear that ‘courts are independent and subject only to the Constitution and the law, which they must apply impartially without fear, favour or prejudice’.”
The organisation noted that Constitutional Court precedent has consistently found that judges do not become biased simply because they have a relationship with an institution involved in litigation.
“In a long line of cases, including President of South Africa v SARFU (1999) and Bernert v Absa Bank (2010), the Constitutional Court has emphasised that a judge holding an account with a bank that is a party to litigation does not, without more, give rise to a reasonable apprehension of bias, which is the key ground for a judge’s recusal. The same principle would apply to judges being members of medical aid schemes.”
Judges Matter said it was difficult to believe that Motsoaledi was unaware of this legal principle.
“He most likely does know, which is probably why neither he nor his legal team has filed a formal application for the judges’ recusal from the NHI case.”
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“Instead, the Minister has taken to public platforms to accuse judges of impropriety and/or bias by virtue of their membership of medical schemes. This is wrong.”
Mbekezeli Benjamin, a researcher at Judges Matter, said Motsoaledi had a constitutional duty as a senior member of the executive to uphold the authority and independence of the courts.
“His comments fly in the face of this responsibility.”
Judges Matter had called on the minister to retract the remarks and issue an unconditional apology. “He should also issue an unconditional apology,” Benjamin previously said.
