ATTENTION: DR A. MOTSOALEDI NATIONAL DEPARTMENT OF HEALTH, SOUTH AFRICA email@example.com
RE: White Paper on National Health Insurance – Additional Comments
Good afternoon Dr Motsoaledi
After further discussion with our attorneys, the South African Private Ambulance and Emergency Services Association (SAPAESA), would like to submit the following comments in addition to our earlier comments on the White Paper on National Health Insurance (NHI):
SAPAESA is advised by our attorney, Mr Schalk Pieterse, from Strombeck Pieterse Attorneys, that the following legal provisions apply with regards to SAPAESA’s objection to the contents of Paragraph 245, Chapter 6.9, Page 44 of the White Paper on National Health Insurance:
- Section 22 of the Constitution (freedom of trade, occupation and profession). Every citizen has the right to choose their trade, occupation or profession freely. The fact that the Department of Health is precluding a service provider to affectively use their own marketing and business tools (their own colour scheme and their own phone number) should and will most certainly be construed in my opinion as an infringement of the constitutional right to freedom of trade. If the Department of Health does try and counter that with section 36, being the limitation of rights clause, SAPAESA would respond by saying the section that the Department of Health is trying to impose will not be law of general application. If the Department of Health tries to argue that section 22 refers to citizens only, they can refer to the case Contract Employment Contractors (Pty) Ltd v Motor Industry Bargaining Counsel 2013(3) SA 308 (LC) where it stated that “citizen” included a juristic person.
- If the Department of Health proceed to try and pass this section and implement this policy, the other laws that SAPAESA would rely on is act 3 of 2000 (the Promotion of Administrative Justice Act). If the Department of Health gives notice that all services public and private must be of a standard colour and that there will be a single national emergency number for both public and private operators, this “notice” will constitute an administrative action (see case of Hendricks and Another v City of Cape Town 2011(6) SA 88 (WCC). That notice of decision and/or making of law, or implementation of policy will be judicially reviewable and it does not meet the standards of administrative justice. The decision will be unreasonable, irrational, arbitrary, not connected to the purpose for which it was made, and be procedurally unfair. It will not meet the standards of section 33 of the Constitution that states that all administrative action must be procedurally fair, reasonable and lawful. The implications and repercussions of such a policy implementation will far outweigh their justification for such a policy implementation – whatever that is. The economic loss that it could potentially cause for private service providers could potentially be huge and service providers may even have a claim against the Department in delict, should they proceed to pass this policy. There are much less intrusive means to improve access to EMS.
- To implement a policy in terms of which all medical emergency vehicles will be a standard colour (whether private or public) and there would be a single national emergency number (whether private or public) simply cannot in our opinion pass constitutional muster with reference to section 22, its case law, and section 33 of the constitution. If such a policy is passed SAPAESA is of the opinion that it could be set aside by way of judicial review in terms of an application to the High Court requesting that the policy decision, which constitutes an administrative action, as indicated in case law above, is unreasonable, irrational, procedurally unfair, and a much less drastic policy can be implemented to “improve access” to medical services.
- In A recent case of Medirite v South African Pharmacy Council (197/2014)  ZASCA 27 (20 March 2015) the court held that a policy decision implemented was unreasonable and irrational, and the principles are much the same. The policy implemented restricted their trade considerably, and they set it aside for being irrational, in that less intrusive means could have been explored, and because the government failed to give good and adequate reasons to justify the policy implementation. (Copy of media release to this case attached).
I trust that the above comments will serve to support our strong, legal objections to Paragraph 245, Chapter 6.9 of page 44 of the White Paper on National Health Insurance.
Chief Executive Officer