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




Asylum seeker, access to health care services, unfair discrimination, everyone, reasonable, constitutional, National Health Insurance Bill, retrogressive


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.


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Author Biography

Joanna Botha , Nelson Mandela University

H.O.D Public Law Department.




Alfaro-Velcamp T "Don't Send Your Sick Here to be Treated, Our Own People Need It More": Immigrants Access to Health Care in South Africa (MPhil-dissertation University of Cape Town 2015)

De Vos P "Pious Wishes of Directly Enforceable Human Rights? Social and Economic Rights in South Africa's 1996 Constitution" 1997 SAJHR 67-101

Department of Home Affairs White Paper on International Migration for South Africa (Government Printer Pretoria 2017)

Du Toit M An Evaluation of the National Health Insurance Scheme in the Light of South Africa's Constitutional and International Law Obligations Imposed by the Right to Health (LLM-thesis University of Stellenbosch 2017)

Heeren M et al "Psychopathology and Resident Status: Comparing Asylum Seekers, Refugees, Illegal Migrants, Labour Migrants, and Residents" 2014 Comprehensive Psychiatry 818-825

International Commission of Jurists A Guide for the Legal Enforcement and Adjudication of Economic, Social and Cultural Rights in South Africa (International Commission of Jurists Geneva 2019)

Liebenberg S "South Africa and the International Covenant on Economic, Social and Cultural Rights: Deepening the Synergies" 2020 South African Judicial Education Journal 12-40

Liebenberg S Socio-economic Rights: Adjudication under a Transformative Constitution (Juta Cape Town 2010)

Mukumbang FC, Ambe AN and Adebiyi BO "Unspoken Inequality: How COVID-19 has Exacerbated Existing Vulnerabilities of Asylum-seekers, Refugees, and Undocumented Migrants in South Africa" 2020 International Journal for Equity in Health 1-7

Pieterse M Can Rights Cure? The Impact of Human Rights Litigation on South Africa's Health System (Pretoria University Law Press Pretoria 2014)

Quinot G and Liebenberg S "Narrowing the Band: Reasonableness Review in Administrative Justice and Socio-economic Rights Jurisprudence in South Africa" 2011 Stell LR 639-663

Schockaert L et al "Behind the Scenes of South Africa's Asylum Procedure: A Qualitative Study on Long-term Asylum Seekers from the Democratic Republic of Congo" 2020 Refugee Survey Quarterly 26-55

Wayburne PA Substantive Equality and Adverse Effect Discrimination in the Context of National Health Insurance in South Africa 2016 SAJHR 26-47

Woolman S, Sprague C and Black V "Why State Policies that Undermine HIV Lay Counsellors Constitute Retrogressive Measures that Violate the Right of Access to Health Care for Pregnant Women and Infants" 2009 SAJHR 102-125

Case law

A E v Chief Executive Officer Helen Joseph Hospital (19/15448) [2019] ZAGPJHC 379 (7 October 2019)

AI v Director of Asylum Seeker Management [2019] ZAWCHC 114 (2 September 2019)

Arse v Minister of Home Affairs 2010 7 BCLR 640 (SCA)

Centre for Child Law v Minister of Basic Education 2020 3 SA 141 (ECG)

Equal Education v Minister of Basic Education 2021 1 SA 198 (GP)

Government of the Republic of South Africa v Grootboom 2001 1 SA 46 (CC)

Harksen v Lane 1998 1 SA 300 (CC)

Institute for Democracy in South Africa v African National Congress 2005 3 All SA 45 (C)

Jaftha v Schoeman; Van Rooyen v Stoltz 2005 2 SA 140 (CC)

Khosa v Minister of Social Development 2004 6 SA 505 (CC)

Larbi-Odam v Member of the Executive Council for Education (North-West Province) 1998 1 SA 745 (CC)

Lawyers for Human Rights v Minister of Home Affairs 2004 4 SA 125 (CC)

Mazibuko v City of Johannesburg 2010 3 BCLR 239 (CC)

Minister of Health v Treatment Action Campaign (No 2) 2002 5 SA 721(CC)

Minister of Home Affairs v Watchenuka 2004 1 All SA 21 (SCA)

S v Makwanyane 1995 3 SA 391 (CC)

Scalabrini Centre of Cape Town v Minister of Social Development 2021 1 SA 553 (GP)

Soobramoney v Minister of Health (Kwazulu-Natal) 1998 1 SA 765 (CC)

Somali Association of South Africa v Limpopo Department of Economic Development, Environment and Tourism 2015 1 SA 151 (SCA)

Teddy Bear Clinic for Abused Children v Minister of Justice and Constitutional Development 2014 2 SA 168 (CC)

Union of Refugee Women v Director: Private Security Industry Regulatory Authority 2007 4 SA 395 (CC)


Constitution of the Republic of South Africa, 1996

Immigration Act 13 of 2002

National Health Act 61 of 2003

Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000

Refugee Act 130 of 1998

International instruments

ECOSOC Report of the United Nations High Commissioner for Human Rights UN Doc E/2010/89 (2010)

International Covenant on Civil and Political Rights (1966)

International Covenant on Economic, Social and Cultural Rights (1966)

Maastricht Guidelines on Violations of Economic, Social and Cultural Rights (1997)

UNCERD General Recommendation XXX on Discrimination Against Non-citizens (2002)

UNCESCR Concluding Observations on the Initial Report of South Africa UN Doc E/C.12/ZAF/CO/1 (2018)

UNCESCR General Comment 3: The Nature of States Parties' Obligations UN Doc E/1991/23 (1990)

UNCESCR General Comment 19: The Right to Social Security UN Doc E/C.12/GC/19 (2008)

UNCRC General Comment 19 on Public Budgeting for the Realisation of Children's Rights UN Doc CRC/C/GC/19 (2016)

UNCRC General Comment 20 on the Implementation of the Rights of the Child During Adolescence UN Doc CRC/C/GC/20 (2016)

UNHRC CCPR General Comment 18: Non-discrimination UN Doc HRI/GEN.1.Rev.9 (1989)

Government publications

GG 42598 of 26 July 2019 (Draft National Health Insurance Bill, 2019, Notice of Intention to Introduce and Explanatory Summary Published for Comment)

GN 604 in GG 40945 of 30 June 2017 (Regulations Relating to the Surveillance and the Control of Notifiable Medical Conditions)

National Health Insurance Bill [B11-2019]

Internet sources

Competition Commission 2019

Competition Commission 2019 Health Market Inquiry: Final Findings and Recommendations Report accessed 21 April 2021

Department of Health 2007

Department of Health 2007 Revenue Directive – Refugees/Asylum Seekers with or without a Permit (BI 4/29 REFUG/ASYL 8 2007) accessed 28 February 2022

Department of Home Affairs Date Unknown


Department of Home Affairs Date Unknown Refugee Status and Asylum accessed 22 February 2022

Department of Home Affairs 2021 Address by the Minister of Home Affairs, Dr Aaron Motsoaledi, at the Signing Ceremony of a Partnership with the United Nations High Commissioner for Refugees to Eliminate a Backlog in the Asylum Seeker System accessed 6 May 2021

Mahlathi P and Dhlamini J 2015 Minimum Data Sets for Human Resources for Health and the Surgical Workforce in South Africa's Health System: A Rapid Analysis of Stock and Migration

south_africa_case_studiesweb.pdf?ua=1 accessed 6 May 2021

Mbatha T and Mphahlele K 2019 NHI Bill Deviates from Goal of Universal Health Coverage accessed 7 March 2021

Nxumalo 2020 NHI and the Inequalities of Coverage for Asylum Seekers and Illegal Foreigners accessed 6 March 2021

OHCHR 2015

United Nations Office of the High Commissioner on Human Rights 2015 Protection of Economic, Social and Cultural Rights in Conflict accessed 28 February 2022

Olivier MP and Govindjee A 2021 Asylum-seekers in South Africa and Covid-19: A Catalyst for Social Security Law Reform? accessed 2 March 2022

Pan American Health Organisation and World Health Organisation Date Unknown Universal Health accessed 28 February 2022

Parliamentary Monitoring Group 2020 BMA Bill: NCOP Amendments; Performance Audit on Undocumented Immigrants; with Minister & Deputy Minister accessed 7 March 2021

South African Human Rights Commission 2017 South African Human Rights Commission on Protecting Healthcare Rights of Refugees and Asylum Seekers accessed 6 March 2021


Scalabrini Centre 2020 Urgent Letter: Scalabrini Requests Equal Treatment for Asylum Seekers, Refugees, and Migrants in South Africa's Covid-19 Responses accessed 5 February 2021

Southern Africa Litigation Centre 2019 Submissions by the Southern Africa Litigation Centre on the National Health Insurance Bill, 2019 accessed 6 March 2021

United Nations High Commissioner for Refugees 2002 Executive Committee Conclusion No. 93 - 2002: Conclusion on Reception of Asylum-seekers in the Context of Individual Asylum Systems (No. 93 (LIII) – 2002) accessed 28 February 2022

United Nations High Commissioner for Refugees 2016, updated 2018 "Refugees" and "Migrants" - Frequently Asked Questions (FAQs) accessed 28 February 2022

Willie N 2018 Ensuring Health and Access to Health Care for Migrants: A Right and Good Public Health Practice accessed 28 February 2022



How to Cite

Moyo, P., Botha , J., & Govindjee, A. (2022). The Constitutionality of the National Health Insurance Bill: The Treatment of Asylum Seekers. Potchefstroom Electronic Law Journal, 25, 1–30.