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 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 ConCourt 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 got 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 case that was still 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 had created public sentiment suggesting that if the ConCourt judges ruled against him, they were doing so to protect their private interests, said Benjamin.
By suggesting that judges are incapable of impartiality, the minister has crossed a dangerous line ... When a minister suggests judges cannot be fair, it creates the impression that 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 were in violation of his constitutional duty to protect the independence of the courts as a member of the executive and as a member of parliament, he said.
The apex court previously ruled that 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 would apply to judges being members of medical schemes, he said.
The DA said it would submit a parliamentary question to President Cyril Ramaphosa asking whether he was satisfied that Motsoaledi’s conduct met the standards set out in the executive ethics code — and if not, whether he would 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.
“By suggesting that 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 that he is trying to influence the outcome of the case.”
Neither the minister’s spokesperson Sello Lediga nor health department spokesperson Foster Mohale was immediately available to comment.
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