Between Law and Equity: Interview with Elsabe Klinck - Director, Klinck & Samuels, South Africa

Meeting highlights:

• Healthcare integration across borders: Regional socio-economic instability, particularly in neighbouring countries, significantly affects South Africa’s healthcare system, underscoring the interconnectedness of SADC health ecosystems and the need for adaptable legal and regulatory frameworks. 
• NHI implementation challenges: While universal health coverage is widely supported in principle, the current NHI Act lacks a clear implementation roadmap and risks legal battles due to concerns about ethics, exclusion of non-citizens, and unclear procurement and funding mechanisms. 
• Opportunities in regulation and innovation: Africa is rapidly advancing in health regulation, data privacy, and competition law. This evolution creates space for legal frameworks and business strategies that embrace flexibility, ethical principles, and regional cooperation. 
• Need for funding models over price control: Instead of imposing price reductions, Elsabé advocates for innovative pooling and funding mechanisms (e.g., stokvels, low-cost benefit options) to increase healthcare affordability and access across the continent. 
• Leadership grounded in an African context: Effective leadership in Africa requires cultural fluency, historical awareness, and adaptability. Leaders who succeed are those who understand the value of negotiation, community engagement, and resilient, principle-based strategy. 

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EF: In terms of the landscape and how things are going, how do you see 2025 from your perspective? 

EK: It has been an economically challenging year for most people in the healthcare sector, primarily due to U.S. tariffs and developments in South Africa. When it comes to pharmaceuticals and medical devices, we've been somewhat spared. However, healthcare is often tied to socioeconomic conditions, and this is reflected in the migration patterns of people across borders. In South Africa, our constitution guarantees the right to access healthcare to everyone, regardless of citizenship status. And although data shows a minimal influence on health sector budgets, perceptions of scarce resources being used by foreign nationals drive actions against them by certain groups in the country. 

Many of our healthcare professionals also work in neighbouring countries, and private hospital groups such as Mediclinic and Life Healthcare Group have facilities that span borders. In the SADC region, there’s already a certain level of integration. If you walk into a pharmacy in Malawi or Botswana, for instance, products from South African companies are available; It’s all connected. 

I recall that during the COVID-19 pandemic, we encountered issues with sanitisers that are specifically designed for use in dialysis. Almost overnight, we could no longer export them to Eswatini because South Africa needed them. But Eswatini needed them just as urgently;  you can’t pause dialysis. That brought it home for me. We’re not operating in isolation. When one country runs into trouble, it doesn’t just stop there. It spreads. We all feel it. 

Many of my clients use South Africa as a hub for exporting to other African countries. It has been interesting to observe how people are adapting and how African countries are beginning to strengthen their regulatory systems. A few years ago, it was more straightforward: you found a single distributor and that was it. Now, you need a business license, permits, and more. From a legal and business perspective, it's no longer as straightforward. A more in-depth understanding of the dynamics is required, including how to import and export, as well as licensing and compliance regulations. It's complex, but it's also encouraging. There's movement, and many see it as a huge opportunity. 

It’s a great opportunity not just for products, but also for the future of health systems. Many African countries are now considering some form of National Health Insurance. However, when they discuss National Health, it may not have the same meaning as we do when we use the term. There’s also a meaningful overlap with what we in law refer to as Social Security law, the broader category of social protections that includes healthcare as one part. That makes this space exciting. A few years ago, it wasn’t seen as a major priority, but now there’s a real opportunity to tap into it. 

Even on the data privacy side, things are shifting. A few years ago, South Africa was the only country with a law, the so-called POPI Act, the Protection of Personal Information Act. Now, there’s a growing movement across the continent. It has led to important questions: if we’re trading across borders and personal data is involved, what happens when that data is leaked? What rules apply? These kinds of questions are also creating new opportunities. 

The success of many of these companies depends on the leadership, which doesn't throw in the towel just because the national department suddenly adopts new legislation, such as a narrow interpretation of broad-based Black economic empowerment. It's easy to be frustrated by the changes and leave it to others to handle. What matters is having leadership that can face these challenges head-on, with the mindset of moving forward despite the obstacles. 

Many African constitutions are relatively new, and they're not modelled on the old systems found in some developed countries. They're built around core principles, which gives them a certain flexibility. Our constitution is founded on the principles of human dignity, equality, and freedom. When you keep those at the centre, the way you apply and interpret the law can significantly shape what is possible. Our constitutional court has been clear: rigid systems are often unconstitutional, because they don't allow for the flexibility that real life and justice require. 

EF: From your perspective, how do you see universal health and its implementation in South Africa, and what does a roadmap from here to successful implementation look like? 

EK: The NHI Act promises a comprehensive set of benefits, but fails to define exactly how it will be achieved. There's nothing concrete yet. And the few things that have been implemented don't give people a clear sense of direction. There is a movement, the UHAC Universal Health Access Coalition. They've put forward an alternative proposal. Like the NHI, it aims for universal health coverage, but it takes a different route. It focuses on utilising the resources we already have and avoiding the kind of conflict that arises from rigid limitations, such as restricting doctors to only prescribing from a set formulary. 

Currently, the pharmaceutical industry is working to secure a place for its products on the formulary. Meanwhile, doctors are wary as they have their hands tied; therefore, they cannot prescribe what is not on the formulary list. It's causing a lot of frustration on both sides. The alternative proposal suggests a more flexible approach, something that fits with the idea of adaptability built into our Constitution. And that's where people are starting to feel more hopeful. Even those challenging the NHI Act in court are noting that their stance is not against transformation. Our sectors have been unequal for a long time. We're not denying that the system needs to change, especially because of the divide between the public and private sectors. 

After 1994, many companies ceased engaging with the public sector. They stopped calling on public sector doctors or promoting their products there, mainly because we introduced the Essential Medicines List, which became the primary reference point for healthcare professionals. However, companies are now rethinking their engagement strategies, and we're seeing some notable shifts. The essential medicines list is being updated more frequently, and this process has become more dynamic. It's not static; it gets revised. 

Previously, updates to the EML occurred infrequently and with longer periods between such updates. Now, there's wider involvement. For example, there have been recent updates on epilepsy treatment.  

So, the debate around universal health coverage isn't about the goal itself. Most people agree on that. The real issue is how we get there. And the way the current NHI Act is written, it just isn't workable. That's why people are speaking up and showing other ways to enact it. 

Unfortunately, this will be decided in court. The private sector, in particular, feels unheard and misunderstood. Even groups like the Medical Association, which represents both public and private sector doctors, are challenging the Act. They’re doing so partly on behalf of patients. Currently, all patients (except those on medical schemes) have access to free primary care. However, the way the NHI is framed suggests that only citizens will be entitled to unknown primary care benefits. For doctors, that raises a serious ethical issue: are they now expected to turn away non-citizens? If a pregnant woman shows up in labour, it is impossible to turn her away and ignore the human impact. 

For the Minister, this is an ideological issue; it’s about fairness and equity. For the private sector, it’s about business continuity. They’re asking if they will be able to sell their medicines under the NHI, because the Act doesn’t specify that. 

At the same time, we have new public procurement laws coming into effect, as well as numerous exciting conversations about public-private partnerships within a new provision in the National Treasury Regulations. But even with all that progress, there’s still a disconnect. You’ve got National Treasury on one side and the Department of Health on the other, and the coordination isn’t quite there yet. 

I can see that some steps are being taken, such as accrediting GP practices, which is already underway. From the end of July, GPs will begin getting accredited to ensure they provide quality care, which is a good thing. That needs to happen. However, it’s also a significant aspect of implementing the NHI Act. Now, there’s pressure to move ahead with it, and GPs are not ready. Compliance teams are scrambling because they’re suddenly under pressure to get everything in place right now. 

The takeaway for the pharmaceutical and medical device industries is that we need to start taking steps now, regardless of whether the full NHI becomes a reality in the future. We must be prepared either way. Some things are already non-negotiable, like the essential medicines list. That will always be central to what the country provides as a core offering. One of the upcoming plans is to introduce a vital equipment list, which will make many products, such as those from J&J and other device manufacturers, directly relevant. 

The fact that providers, particularly doctors, are being included in the early stages of implementation gives the rest of us a chance to think ahead. It provides us with the space to start shaping what the procurement system could look like, not just as part of the long-term vision under NHI, but even now, in the interim. The minister, in his replies to NHI legal challenges, says NHI is a 10- to 15-year journey. So, the real question becomes: What do we want to happen in that time? How do we improve medicine procurement, whether it's through the state as the funder or through medical schemes? 

There are also promising conversations happening around alternative reimbursement models and value-based pricing. In healthcare provider circles, some GP networks and multidisciplinary groups are already running value-based care models. We were talking the other day about how integrated these setups have become; you'll find your GP, physiotherapist, and other specialists working together. But pharma isn't always at the table. Sometimes, yes, in areas such as orthopaedics or hip replacements, the medical device industry is involved. However, the pharmaceutical industry hasn't yet fully entered that space. We're accustomed to setting a single price and leaving it unchanged. We're not used to pricing based on outcomes. But that's what these value-based models are about: if your product helps deliver better outcomes, you can be compensated accordingly. The group, a collective of providers contributing to a patient's recovery, benefits from better performance and is rewarded for it. 

These conversations are gaining traction, and the bigger goal is access. We're working to make care more accessible to a wider range of people. Even medicines that may seem cheap by other standards can be out of reach for many in Africa. How can we develop funding models that make treatment more affordable? Because when it comes down to it, even here, if someone needs cancer treatment, like immunotherapy, it's not something most people can pay for out of pocket. We need a pooling mechanism. We need to start thinking more creatively about how to make that happen. 

A notable example was shared at a Social Security conference. Someone from the Ivory Coast spoke about a model they use in villages to fund primary care for children. After a child is born, everything from immunisations to follow-up care is financed through something similar to what we call a stokvel in South Africa. A stokvel is a savings group where everyone contributes a set amount each month, and the pooled funds go to one member at a time. In the Ivory Coast example, when someone in the group has a baby, they receive the full pool to cover healthcare costs. In South Africa, stokvels are used widely. People pool their money, and then the person with the next child starting school or the next birthday gets the pot. It’s a way to make something possible that no one could afford on their own. In that village model, the equivalent contribution might be something as small as a man giving up one beer a week. That’s where we need to begin thinking practically and critically about what’s possible. 

I don’t have any illusions that we’ll suddenly convince big pharma or major device manufacturers to drop their prices for Africa. That’s not realistic, and understandably so. Instead of simply stating the product's expense, we need to focus on how to make it more affordable. And that’s not necessarily through price regulation, but through smart funding models. 

We have mechanisms in place for pricing oversight. Many African countries utilise competition law to regulate practices such as exploitative pricing and predatory behaviour. There’s been a lot of growth in that area. I know someone who runs a company called Betweenity, which helps businesses monitor competition laws across the continent. So we have legal tools in place. But in the health sector, the goal isn’t to price regulate everyone. It’s about exploring how we can make healthcare more accessible by pooling funds and managing risk. In South Africa, for example, there’s ongoing talk about low-cost benefit options, health plans designed for affordability. That opens the door for pharma and device companies to ask how they can support or build models that work for more people. 

In many African countries, people still pay cash to see a GP, or to get medicine from a pharmacy, or treatment from a nurse. That’s the reality. Therefore, creating funding models that alleviate the out-of-pocket burden is where the opportunity truly lies. 

Unjani Clinics recently reached their six millionth consultation, and sadly, none of those people have been able to benefit from pooling their money. Imagine if all those consultation fees had been collected into a shared fund. That would've made a huge difference. However, we're now in a situation where people are being told they can't have a low-cost benefit option. They can't use it to access care more affordably. It's such a shame because, in effect, we're saying, "That money is yours, but you can't use it collectively to make things better for yourself or your community." To bring in more investment, we need a stable framework. Investors can deal with uncertainty; it's part of doing business. But what's difficult is the absence of clear principles. You need to know there's something solid that protects your business. 

Right now, the concern isn't just about pricing; it's the assumption that, in the name of equity, companies should lower their prices. Some proponents of NHI have said, "To make this work, we'd need you to accept two-thirds less." However, no one, whether in South Africa or anywhere else on the continent, can cut their prices by two-thirds and remain operational. It's just not feasible. 

What's missing is clarity around the funding model. That's more important than the individual price points. If there were a clear, principled model, people would feel more confident. We're used to navigating rules, as long as the principles are clear and fair. However, the only principle being emphasised is equity, presented in moral terms. And that's where people start to push back. 

The implication is that if you don't support NHI in its current form, then you're not an ethical person. That frustrates people. I used to work in human rights law, and I find it incredibly offensive when people suggest that opposing this version of NHI means you're against human rights. And that's the key issue: many stakeholders aren't rejecting the idea of national health insurance; they're rejecting this particular version of it. They're saying the current framing is unworkable. That distinction matters. 

EF: If you had a final message delivering to the sector through our report, what would your final message be? Secondly, what are you most excited about at the moment? Which area of healthcare and law is most exciting? 

EK: Leaders need to lead effectively within this context. You can't just be parachuted in from another country and start saying, "This will work" or "That won't work." Being a leader in Africa means understanding that things often have a long and complex history, not just in South Africa, but across the continent. You have to understand the legacy of colonialism. You have to understand South Africa's history of apartheid. And if you're a white person criticising a Black minister, you have to recognise that there's a context to that. You can't ignore it. 

Leadership here means knowing that everything is, in some way, a negotiated settlement. That's the reality we work within. The people who excel here are those who can work within that space, who understand it's always a bit of a negotiation. They find their way through it with a sensitivity and awareness that fit the context. Across Africa, there are certain principles that most people agree on, such as human dignity and equality. Those often matter more here than individual freedom. That way of thinking influences how people lead, make decisions, and interact with one another. Strong leaders understand that talking things through really matters. It’s not just a formality, it's part of how we operate. Words like imbizo or indaba reflect something deeper. It’s about sitting down, having honest conversations, listening earnestly, and trying to understand where the other person is coming from. 

Often, new leaders come into South Africa as country managers without the time or the patience to grasp this different way of doing business. But if you can embrace it, that's what makes someone a great leader. That's why people often want those leaders to come back. It's not about their title or whether they work in pharma, devices, insurance, or wholesaling; it's the quality they bring. Their ability to adapt, to stay resilient, and to reflect that resilience in how they run the business. And that's exactly what we need right now. Things are tough, and we need people who can think creatively, who are open to real solutions.  

In the past, we'd challenge things more directly, such as when the single exit price was announced, and we pushed back. Now, the single exit price isn't working as intended, so we need to be clear about what kind of model we want. That's where the opportunity lies. 

More frameworks are emerging now, especially around public-private partnerships. The regulations are changing, and we're starting to see real possibilities. The medical devices master plan from Trade and Industry, for example, can be extended to pharma and even to self-care products. That's a solid first step. And it gives us something to build on. These are the kinds of opportunities that make you feel excited about the future here. When you come back from overseas, you want to kiss the ground. You're reminded that, after everything, you're African. And no place feels more like home.