Various stakeholders within the medical schemes value chain have sharply raised concerns over the
unending court challenges brought by the Board of Healthcare Funders (BHF) against CMS. As an agile
regulator, the CMS endeavours to clarify misconceptions and confusion over BHF’s court challenges.
Chronology of Events
Initially, the main issue brought by BHF, in this case, was to request the court to grant them a general
exemption for medical schemes to offer low-cost benefit options and to declare an alleged moratorium
unlawful by the CMS and Ministry of Health to prevent medical schemes from offering low-cost benefit
options.
In response, the CMS vehemently opposed the application on the basis that there was no moratorium as
alleged by BHF and it would be thus unlawful to grant BHF a general exemption for medical schemes to
offer low costs benefit options.“It must be noted that while the main case/dispute was still ongoing (even after CMS submitted an extensive record of documents that were compliant with relevant information and documents having been exchanged between CMS and BHF), surprisingly BHF brought an interlocutory application alleging that CMS and the Minister were hiding certain information.”
Accordingly, the interlocutory application requested CMS and the NDOH to release an exhaustive list of
documents which the CMS believed were irrelevant and had no bearing on the main application.
Despite CMS’s vehement contestation to the court on the additional requested documents by BHF, Judge
Botha granted the BHF the order they sought, and the CMS, as well as the Minister of Health were
ordered to produce the documents listed in Notice in terms of Rule 30A within 10 (ten) days of the Court
Order, being 24 July 2023.
Before the expiration of rule 18 of the superior court, CMS filed leave to appeal the court order of Judge
Botha as CMS believed that the order was flawed in law and that the judge had no reasons for ordering
CMS and the Minister to produce those documents.
While the CMS legal team was studying the order, BHF concurrently lodged a contempt of court on an
urgent basis. CMS, through its attorneys, moved swiftly and wrote to BHF urging them to withdraw the contempt application as the CMS had already lodged its leave to appeal the court order of Judge Botha and this meant that the court order by Judge Botha would been suspended.
BHF refused to withdraw the contempt application and the application was heard on 8th August 2023 and
the court dismissed BHF’s application on 10 August 2023 with costs in favour of CMS and Minister.
Citing Judge E van der Schyff who emphasised that “in the Practice Manual of the Gauteng High Court
Division that while an application maybe urgent, it may not be sufficiently urgent to be heard at the time
selected by an applicant” and also strongly highlighted that it does “not mean that applicants can
indiscriminately approach the urgent court on the basis of extreme urgency without having regard to the
context and facts of each individual application.”
Based on this order, the contempt application is now in our view moot or rather has been overtaken by
the leave to appeal lodged by CMS and the Minister and CMS/NDOH leave to appeal will be heard in the
1st week of September 2023.
The main application brought by BHF is likely to be heard in later parts of 2024.
