You reported a grievous misapprehension by union federation Cosatu as to the meaning and import of the concept “unconstitutionality” (“Cosatu urges Ramaphosa not to negotiate sections of NHI amid pushback”, March 11).

The nub of the matter is revealed in a verbatim quote from the deputy president of Cosatu: “We do not see why there must be negotiations with anybody about NHI [National Health Insurance] because the bill was discussed for years before it was signed. Now, it has been passed and changing the law after that sounds unconstitutional because you do not do that unless you go back to parliament.”

The question of whether a law is consistent with the constitution is a matter of law to be decided, eventually, by the Constitutional Court. If it is not constitutional it falls to be struck down as invalid by that court.

Section 2 of the constitution stipulates that “law or conduct inconsistent with [the constitution] is invalid”. In the final analysis this means what the court says it means, not what parliament may think it means. It is possible for the courts to send back to parliament for amendment those features of any law that have struck down as invalid.

Cosatu, like the MK party, is hankering after the sovereign parliament of the old order. In the new order, the constitution is our supreme law; its supremacy and that of the rule of law are entrenched in section 1(c). In effect, this means politicians are constrained by what the values, principles, precepts and provisions of the constitution and the rule of law allow. In this case there is an applicable constitutional principle that “efficient, economic and effective use of resources must be promoted”. Whether the NHI law does so is contested.

It is the right of any public interest litigant to challenge the constitutionality of any new law, no matter how many years it remains under discussion in parliament. This step is now being taken by those who doubt the constitutionality and rationality of the NHI legislation. They are within their rights to do so.

If in negotiations they can persuade government of the error of its ways with the legislation, whether on the basis of its unconstitutionality or legal irrationality (failure to comply with the doctrine of legality) so much the better. This legitimate negotiation process could lead to amendments to, or the scrapping of, the new law.

Paul Hoffman
Director, Accountability Now