In a surprising decision which is on appeal, the High Court held that the President’s decision to assent to and assign the National Health Insurance Bill is reviewable because all executive decisions are reviewable under the principle of legality or the law relating to the review of administrative decisions. The court invoked section 173 of the Constitution which gives the Constitutional Court, the Supreme Court of Appeal and the High Court of South Africa inherent power to “protect and regulate their own process, and to develop the common law, taking into account the interests of justice”.
It is not made clear in the judgment how section 173 of the Constitution applied to the facts.
The applicant’s case was that, because there is widespread opposition to the NHI Bill and issues not addressed in the NHI Bill, the President should not have signed it into law. It was said that, when assenting to and signing a Bill, the President exercises a public power and the decision can be reviewed by the courts. The President would then have to produce all the documents upon which the decision was made. The court considered the complaint that the President had failed to scrutinise and assess the constitutionality of the NHI Bill.
It is a far-reaching decision that, where the President decides to sign a Bill into law his subjective decision and the basis of making the decision are reviewable. The normal process would be to challenge the law when it becomes law as unconstitutional.
No affidavit was submitted in support of the defence of the President and the Minister of Health which may have influenced this decision.
It remains to be seen what will happen on appeal.