The Constitutionality of the National Health Insurance Bill: The Treatment of Asylum Seekers

Abstract

As the supreme law of the land, the Constitution of the Republic of South Africa, 1996 (the Constitution) requires that any law or conduct be consistent with its provisions. The Draft National Health Insurance Bill, 2019 (the Bill) is no exception. Clause 4 of the Bill states that South African citizens, permanent residents and refugees will have access to quality health care services whilst asylum seekers and undocumented migrants will have access to emergency medical services, as well as services for notifiable conditions of public health concern. The treatment of asylum seekers is concerning given the fact that asylum seekers are a vulnerable group which enjoys special status under international law. This article seeks to assess the constitutionality of clause 4 of the Bill in so far as it limits the access to health care services for asylum seekers. The objective is to ascertain the extent to which the differential treatment of asylum seekers is permissible. Clause 4 of the Bill will be benchmarked against sections 9 and 27 of the Constitution and international law.