Piet le Roux: Fight harmful State schemes with "maximum appropriate non-cooperation"...

Use "State proofing or maximum appropriate non-cooperation where the State seeks to co-opt ... any non-State actor." That is the advice from Sakeliga CEO Piet le Roux following the latest milestone victory in its fight against the implementation of the NHI Act. "Where the State seeks to co-opt you into an ideological scheme that is clearly harmful, clearly unacceptable, offer the least possible cooperation you can, but do this judicially, do it judiciously, of course," he urges. "There are sometimes risks in not cooperating with the State, but wherever unethical demands that are harmful to society, that are unlawful, that are unconstitutional, are made, I think it's also an ethical duty on people to offer the least possible cooperation." Le Roux describes how useful public interest litigation by Sakeliga and other parties has been. "On all of those cases where we've also achieved good court victories, we have decreased the harms that would have been affected on businesses and on society and on communities, local and nationally.".Sign up for your early morning brew of the BizNews Insider to keep you up to speed with the content that matters. The newsletter will land in your inbox every morning on weekdays. Register here.Support South Africa’s bastion of independent journalism, offering balanced insights on investments, business, and the political economy, by joining BizNews Premium. Register here.If you prefer WhatsApp for updates, sign up to the BizNews channel here..Watch here.Listen here.Edited transcript of the interview.Chris Steyn (00:00.983)Sakeliga has reached an important milestone in its fight against the implementation of NHI Act. With me is Sakeliga CEO, Piet Le Roux. Welcome, Piet Piet Le Roux (00:14.028)Hi Chris. Chris Steyn (00:16.119)Please recap for our viewers the finding by the Pretoria High Court. Piet Le Roux (00:21.826)Yes, so last week the Pretoria High Court ruled and it was actually by agreement between the parties and it was then made an order of court that the NHI implementation must be stayed, that it is prohibited from continuing until the procedural matters are heard and resolved. This stems from an earlier counter application that Sakeliga brought to strengthen our case and the cases of many other litigants against the NHI, because what happened was that the government, the Department of Health, wanted to have the constitutional challenges which we and so many others brought, they wanted to delay that, but in the meantime, continue with implementation, pending some procedural questions. Piet Le Roux (01:18.84)But now this was interdicted. And so until the procedural questions are now resolved, no implementation is allowed. Chris Steyn (01:22.924)And what exactly has the state committed itself to? Piet Le Roux (01:34.104)Three things, the first is that the Minister of Health has undertaken not to ask the President of South Africa to proclaim any implementation or operation of the NHI Act. The second was that the President undertook that he would not proclaim or similarly advance the implementation of the NHI Act. And then also that the department would not implement the NHI Act pending the outcome of the procedural challenges, which is set to be heard in May in the Constitutional Court. That could be drawn out for a long time, or it could be dealt with quickly. Really, fortunately, now it does not matter, because whether it takes long or short, there will be no implementation as agreed by the parties and made an order of call. Chris Steyn (02:36.557)What happens if there is non-compliance by the State? Piet Le Roux (02:42.702)If there is non-compliance, Sakeliga or any of the other parties have 48 hours to approach the court and to have the matter then brought before the court that this was actually in contravention of the court order. So it was agreed also by the parties and it was made an order of court to provide for any failure by the State should it continue with implementation. Piet Le Roux (03:10.742)Of course, there is no guarantee that the State will not in the meantime continue with planning or some kind of awareness. But the point is that no implementation is allowed. Now, we will be monitoring that situation, as will other litigants who have also dedicated lots of resources to get us to this good point where we are now, as we and the other litigants, I'm sure, will be monitoring the conduct of the Department of Health and the government in other spheres of the State to make sure that there is no implementation. And should we be of the opinion that there is a contradiction or something in contravention of this court order, we will then approach the court with provisions of being able to do so within 48 hours. Chris Steyn (03:58.725)OK, what follows after the Constitutional court hearing on procedural matters? Piet Le Roux (04:04.706)Yes, it could either be resolved fairly quickly in an expedited manner after the May hearing, or it could be protracted and take a long time to get to a judgment. Either way, once that process of procedural review is finished, we will then move to the substantive hearing, a substantive matter, and that will be another long court process with not necessarily going directly to the Constitutional court as the current one does, but possibly progressing through the High Court, it depends on all on the merits of the various and the pleas and the arguments of the various and the legal strategies of the various litigants. So lots of variation beyond the procedural hearing in May. And I think we must still look forward to many years of litigation. Piet Le Roux (05:03.33)…even though the best news would be that the NHI is completely scrapped. I think that it is good news because we know now that implementation cannot continue. Also, if we look at the budget by Minister…, it's clear that the NHI is not around the corner, at least not from Treasury's perspective. And this just bolsters the arguments by Sakeliga and all the other litigants that the NHI is unaffordable, that it's unconstitutional and...It just reinforces our view that the NHI is nowhere near implementation. This is very good because the NHI is, of course, a disastrous policy proposition. And many people, I think, if they had considered immigration or what their future in this country looks like to many people, the plans to nationalise health care in this country is a meaningful contributor to the possible decisions to immigrate or leave or edge their bets…. Piet Le Roux (06:01.4)…this development now as well as the multiple years of litigation that lies ahead as well as Treasury's clear non-provision for expenses on NHI means that our recommendation, at least our view at Sakeliga is that NHI is nowhere near implementation and that people do not have to make big strategic decisions as if the NHI is anywhere near implementation. Chris Steyn (06:28.856)So meanwhile, what advice do you have for healthcare businesses as a result of this development? Piet Le Roux (06:36.054)I think at Sakeliga, I like the term State proofing or maximum appropriate non-cooperation where the State seeks to co-opt private businesses, private medical providers, nonprofit or for-profit, any non-State actor. Where the state seeks to co-opt you into an ideological scheme that is clearly harmful, clearly unacceptable, offer the least possible cooperation you can, do this judicially, judiciously, of course. There are sometimes risks in not cooperating with the State, but wherever unethical demands, demands that are harmful to society, that are unlawful, that are unconstitutional are made, I think it's also an ethical duty on people to offer the least possible cooperation. That's the one point of advice. And I think the more people resist participation in unlawful and harmful government prescriptions, the better it is for society and the better it is for a flourishing future for all of us in this country. Chris Steyn (07:40.972)Would you say this is a prime example of how public interest litigation is the best way to fight harmful policy? Piet Le Roux (07:50.136)Well, there are many ways, but this is one of the good ways. Public interest litigation by Sakeliga and the other parties in this litigation has certainly forestalled the implementation of the NHI and is, I think, very encouraging. So public interest litigation is very helpful. This is a good example of it. In other ways, Sakeliga and in other areas of law, for example, on BEE, on procurement, on ESKOM's cuts of power to paying customers just because the municipality didn't pay. On all of those cases where we've also achieved good court victories, we have decreased the harms that would have been affected on businesses and on society and on communities, local and nationally. And so I think this is a good example. Litigation is not the solution to all problems in a country and especially not in a country like ours. where the State fails at so much and harmfullyl intervenes in so many other areas, where its ambitions are so far beyond what is good and so far beyond what it is capable of achieving. In a country such as us, it is still encouraging that the courts offer good remedies in specific domains of law and in specific kinds of disputes. And I think it's very important over the next few years to make full use…. Piet Le Roux (09:18.067)of this relatively functional domain of the State apparatus. Chris Steyn (09:09.358)Is there any other legal battle that have developments that you can update us on? Piet Le Roux (09:32.172)Well, just two weeks ago, there was an important victory for us. It's not the final victory, but it is a very good development in BEE in aviation licensing. So Chris, may recall that last year Sakeliga won what we call the first third wave BEE case. That's where BEE is directly tied to licensing for non-traditional sectors. And in this case, it was aviation. So until the middle of last year, the local airlines regulator was trying to make BEE compulsory for licensing of local aviation services. And we got that by order of the court set aside and an order that said no BEE requirements may be set in awarding domestic air service licenses. What then transpired during the case development for that was that not only local aviation services, but also international aviation services. These are international airline companies flying passengers in and out of South Africa and cargo in and out of South Africa, airlines, European airlines, East Asian airlines. Many of them had also been receiving letters saying that they needed to make some kind of BEE concession, some kind of BEE deal or compliance in order to get licenses to land and provide services in South African airspace. And that we then also made a court case based on the victory we achieved in the domestic licensing case. And just two weeks ago, it's about last week, we got news that both the Minister of Transport as well as the South African regulator for these licenses have both withdrawn and indicated that they will not oppose Sakeliga litigation - and that means our application to set aside BEE in aviation licensing also for international airlines in South Africa is now unopposed and we look forward to the same outcome that we had in the domestic licensing case last year, which is a court order confirming what we have asked of the court. Piet Le Roux (11:58.146)Thank you, Chris.

Piet le Roux: Fight harmful State schemes with "maximum appropriate non-cooperation"...

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