As the National Health Insurance (NHI) Act is being challenged before the courts, the proposed system’s foremost advocate, Health Minister Dr Aaron Motsoaledi, has come out swinging against the judges on the Constitutional Court.

Speaking at an event to mark International Nurses Day this week in Ekurhuleni, Dr Motsoaledi declared that he had suspicions about the impartiality of the Constitutional Court judges who were hearing the case. They had the benefit of private healthcare.

“I am asking the judges who have got that benefit… a benefit that is unfair, please make a judgement over it. That is the trouble, which I am having,” he said.

He continued: “I was looking at those judges in their eyes. They are beneficiaries of the same system that I am talking about, but they must [render] a judgement.”

Judges are covered by the Parmed scheme, which also covers Cabinet members and Members of Parliament.

Parmed, as the minister noted, is “heavily subsidised” by government.

Dr Motsoaledi’s words earned him a rebuke from rule-of-law watchdog group Judges Matter, which said they constituted a disparaging attack on the judges and could be seen as “interfering with the functioning of the courts”.

A representative of the organisation, Mbekezeli Benjamin, said there were judgements that made clear that merely holding some relationship with an institution (such as having an account at a bank involved in litigation) would not constitute inherent bias. Benjamin noted further that the minister and his legal team were probably well aware of this and therefore had not argued for the recusal of the judges.

Since Motsoaledi was a senior member of the executive, Benjamin said, he had a duty to protect the integrity of the courts. “His comments fly in the face of this responsibility.”

These sentiments were echoed by Glynnis Breytenbach, the Democratic Alliance’s spokesperson on justice and constitutional development. “By suggesting that judges are incapable of impartiality, the minister has crossed a dangerous line. These comments undermine the independence of the courts and risk damaging public trust in the Constitutional Court. The Constitution gives judges the responsibility to decide whether laws are constitutional, without pressure from politicians. When a minister suggests judges cannot be fair, it creates the impression that he is trying to influence the outcome of the case.”

South Africa’s courts have often been called on to adjudicate inflammatory issues and have frequently ruled against the government. The response of the African National Congress to this has been mixed, but numerous figures have over time expressed hostility to the courts as undermining the popular will. Dr Motsoaledi’s comment stands firmly in the latter category.

The proposed NHI system is not, however, universally popular with South Africa’s population, including among poorer South Africans. Existing state health systems are often mismanaged, and there is limited belief that bringing all spending under state control will improve health outcomes.