Advocacy group Judges Matter has called on health minister Aaron Motsoaledi to apologise for questioning the impartiality of Constitutional Court judges presiding over challenges to the National Health Insurance (NHI) Act and to retract his remarks.
In an address to nurses in the Eastern Cape to mark International Nurses Day on Tuesday, the minister said the judges were beneficiaries of the very system NHI sought to change. He attended last week’s top court hearing into challenges to the NHI Act brought separately by the Board of Healthcare Funders (BHF) and the Western Cape provincial government.
“I was looking at those judges, looking at them in their eyes,” said Motsoaledi. ”There is a medical aid called Parmed, and now I’m asking judges who have this benefit, please make a judgment over it. That’s the trouble I am having.”
It was highly unusual for a member of the executive to comment on a matter under consideration, said Judges Matter legal researcher Mbekezeli Benjamin. “For him to enter into this space and make these kinds of remarks does look like interference in the courts,” he said.
Motsoaledi has created public sentiment suggesting if the top court judges rule against him, they are doing so to protect their private interests, said Benjamin.
By suggesting judges are incapable of impartiality, the minister has crossed a dangerous line. When a minister suggests judges cannot be fair, it creates the impression he is trying to influence the outcome of the case
— Glynnis Breytenbach, DA spokesperson on justice and constitutional development
The minister’s failure to retract his remarks when challenged by DA MP Karl le Roux in parliament on Wednesday potentially aggravated the matter, he said.
The minister’s comments violate his constitutional duty to protect the independence of the courts as a member of the executive and as an MP, he said.
The apex court previously ruled judges holding an account with a bank that was party to litigation were not required to recuse themselves (Bernert v Absa Bank 2010), and the same principle applies to judges being members of medical schemes, he said.
The DA has submitted a parliamentary question to President Cyril Ramaphosa asking whether he is satisfied that Motsoaledi’s conduct meets the standards set out in the executive ethics code, and if not, whether he will refer the matter to the public protector for further investigation.
The DA’s spokesperson on justice and constitutional development Glynnis Breytenbach said section 2.1 of the Executive Ethics Code requires members of the executive, to the satisfaction of the president, to:
- act in good faith;
- fulfil their constitutional obligations; and
- conduct themselves in a manner consistent with the integrity of their office and good governance.
Breytenbach said Motsoaledi’s conduct is “shockingly inappropriate” and simply withdrawing his comments and apologising will not go far enough. “He would have to point out that it was a shocking [error of] judgment and shouldn’t be encouraged,” she said. “By suggesting judges are incapable of impartiality, the minister has crossed a dangerous line,” she said.
“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 he is trying to influence the outcome of the case,” she said.
Motsoaledi in a statement said he wanted to clarify his comments about “judges, parliamentarians like himself, and many other prominent and well-to-do South Africans, being beneficiaries of the current unequal health system”.
“This reference was made to demonstrate the systemic challenges caused by gross inequalities within the country’s two-tiered health system, characterised by a well-resourced, heavily state subsidised, private sector which caters for a privileged minority, while the majority are dependent on an under-resourced public sector.
“These comments should in no way be construed as second-guessing the judiciary’s ability to remain impartial when adjudicating challenges to the constitutionality of the NHI. The minister wishes to state categorically that he has full confidence and trusts in the fairness and integrity of the judiciary and its commitment to upholding the rights enshrined in the constitution and the rule of law.
“If by talking about disparities the minister is understood to have been attacking the judges, the minister would like to unreservedly apologise and withdraw whatever statements may have been offensive. The minister wishes to reiterate he will not only accept but fully respect any verdict from the judges of our Constitutional Court,” the statement said.
• This story has been updated with comment from the health minister.
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