REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: 023855/2024
REPORTABLE: NO (1)
(2)
(3) OF INTEREST TO OTHER JUDGES: NO
REVISED: NO ~ -
12May2025 -
DATE SIGNATU RE
In the matter between:
THE SOUTH AFRICAN POLICE SERVICE MEDICAL
AID SCHEME (POLMED)
and
SIKHALA ATTORNEYS INC
MR KHATHU SIKHALA
KNK HEAL TH CARE SOLUTIONS (PTY) LTD
DOMINGO, AJ
Introduction JUDGMENT Applicant
First Respondent
Second Respondent
Third Respondent
2
[1] This is an opposed motion application brought by the applicant against the
respondents. The applicant seeks firstly, a declarator that the f irst respondent ’s
conduct is unlawful, and an interdict prohibiting them from undertaking recoveries
of money on behalf of the applicant, and an order directing the first respondent
to account to the applicant for all recoveries undertaken since 09 December
2020.
[2] On the day of the court hearing the respondents made no appearance and they
have not provided the court with their heads of arguments. The first and second
respondent s have filed on record an answering affidavit.
Background
[3] The applicant is a closed Medical Aid Scheme that services members of the
South African Police Service and their nominated dependants. The applicant has
about 180 000 principal members and about 500 000 beneficiaries.
[4] This application concerns, in the main , the conduct of the first respondent , a
former sub -contractor of one of applicant’s service providers, which is the third
respondent.
[5] It is common cause that the applicant appointed the third respondent to conduct
recoveries from the applicant’s members who had successfully claimed payment
from the Road Accident Fund (“RAF”) for past medical expenses under
circumstances where the applicant had paid for those past medical expenses. In
order to effectively execute its duties, the third respondent appointed the first
respondent as its sub -contractor. The applicant terminated its agreement with
the third respondent on 09 December 2020.
[6] It is submitted by the applicant that the termination of its agreement with the third
respondent, naturally, ought to have been the end of the first respondent’s
involvement with the third party recoveries for past medical expenses on behalf
of the applicant. However, the applicant has submitted that the first respondent
continues to date to represent itself as a ser vice provider of the applicant and
continues to collect and receive money belonging to the applicant into its trust
account.
3
[7] It is submitted by the applicant that on average the applicant, pays R10 million a
month in medical related claim s to healthcare professionals for injuries sustained
by its members in motor vehicle accidents alone, where a third party was involved
or at least partially liable.
[8] Rule 14 of the applicant’s rules provi de that:
“[T]he member is under a duty to disclose all and any health information or matters
relating to any incidents (resulting from actions of third parties) which give rise to any
third party claim s to the scheme…
14.5 …in the event of claims reimbursed on behalf of members which arose from
actions of omissions of any other party, the member shall :
14.5.1 be liable to repay to the scheme all amounts paid by the scheme and recovered
by or on behalf of the member from the party responsible to compensate such
member. ”
[9] The applicant has submitted that despite members being obliged to disclose this
information , members do not. To that end, the applicant, procured the services
of the third respondent to conduct these recoveries in terms of an agreement
signed between the parties on or about 11 May 2020.
[10] It is submitted by the applicant that in terms of this agreement, the third
respondent had to provide the following services:
10.1 Investigating and identifying members who have submitted RAF claims ;
10.2 Procuring from members who su bmitted RAF claims an undertaking and
delivering such undertaking to the applicant ;
10.3 Monitoring all RAF claims submitted by members and/or by their
attorneys ;
10.4 Ensuring that members who have successfully claimed from the RAF
refund to the applicant all amounts which the applicant is entitled to in
terms of an undertaking ;
10.5 Maintaining comprehensive records relating to all RAF claims ; and
4
10.6 Complying with reporting obligations set out in clause 7.3 of the
agreement.
[11] Under the assignment and sub -contracting clause, the applicant stated that the
agreement further contemplated:
“[T]hat the service provide r will appoint attorneys to conduct the legal work in so far as
the recovery is concerned hereof, the service provider shall not be entitled to (i) assign
the agreement or any part thereof or any benefit or interest therein or (ii) sub -contract
any part of the services to any third party without prior written consent of POLMED.”
[12] It is common cause that the first respondent was appointed as the sub -contractor
to assist the third respondent with these recoveries.
[13] It is also common cause that the agreement between the applicant and the third
respondent terminated on 09 December 2020 pursuant to an audit report that
found that the appointment of the third respondent was irregular.
[14] It is submitted by the applicant that since the termination of the agreement, the
third respondent has refused to return the files that belong to the applicant and
refuses to fully account for the recoveries undertaken during the subsistence of
the contract. The applicant has subsequently instituted a claim for the
debatement and abatement of the account, which claim is in arbitration.
[15] The applicant has informed the court that the arbitration ha d concluded at the
time of the deposing of its affidavit in this matter , and judgment had been handed
down in favour of the applicant, however, the defendants in the arbitration matter
had noted an appeal.
Relief
[16] The relief sought by the applicant is as follows:
16.1 The applicant seeks an order declaring the conduct of the first
respondent, as unlawful and an interdict that prohibit s the first
respondent from representing themselves to the public at large as the
applicant’s service provider and from collecting money due to the
applicant ;
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16.2 Conse quent thereto, the applicant further seeks anciliary relief in terms
whereof the first respondent is directed to repay the money so collected
and to provide the applicant with a list of all collections it has undertaken
on behalf of the applicant since 9 December 2020.
Issues
[17] The issues for determination in this matter are as follows:
17.1 Whether or not the first respondent is entitled to present itself as a
service provider of the applicant ;
17.2 Whether or not the conduct of the first respondent is unlawful.
Points in limine
[18] The first and second respondent raised three points in limine, namely; the
defence of lis pende ns, non-joinder and dispute of facts.
a) First point in limine: lis pendens
[19] The first and second respondent in its answering affidavit has averred that the
applicant is abusing the court proce ss as there is currently a pending case on
arbitration instituted by the applicant, arising from the same cause of action and
on the same set of facts, which matter remains not finalised. The first and second
respondent submitted that to institute these proceedings against the respondents
offend s the lis pendens principle and amoun ts to double jeopardy, and as such
this application stands to be dismissed with punitive costs or stopped pending
finalisation of the arbitration.
[20] The first and second respondent further averred that this application is disguised
to creat e an impression that the applicant has recently, after it has instituted
arbitration proceedings against the respondents, become aware that the first
respondent is receiving payments in respects of its files. It is contended by the
first and second respondent that it cannot be true as the applicant had raised this
application before even instituting arbitration proceedings, raised and argued it
during arbitration.
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[21] Alternatively, the first and second respondent relied on section 6(1) of the
Arbitration Act 42 of 1965 (“Arbitration Act”) and submitted that the applicant is
prohibited in terms of section 6(1) of the Arbitration Act from instit uting these
proceedings, wherefore the respondents pray for the stay of these proceedings
pending the finalisation of the arbitration hearing.
[22] It is trite in our law, that there are three requ irements for a successful reliance on
the defence of lis pendens ; i) the litigation is between the same partie s, ii) the
cause of action is the same, and iii) the same relief is sought in both sets of
proceedings.
[23] In other words, as state d in Electrolux South Africa (Pty) Ltd v Rentek Consulting
(Pty) Ltd1:
“A plea of lis alibi pendens is based on the proposition that the dispute between the
parties is being litigated elsewhere and, therefore, it is inappropriate for the dispute to
be litigated in the court in which the plea is raised. The policy consideration underpinning
the lis alibi pendens doctrine is that there should be a limit to the extent to which the
same issue is litigated between the parties as it is desirable that there be finality in
litigation. Also, a situation should be avoided where different court s pronounce on the
same issue with the r isk that they may reach different conclusions .”
[24] It is submitted by the applicant that the arbitration proceedings are instituted in
terms of a contract the applicant ha d with the third respondent. The relief sough t
and the cause of action in the arbitration proceedings are different to this
application. The cause of action in that application is on a contractual clause that
obliges the third respondent to return files to the applicant and to account to the
applicant. While the cause of action in this matter, pertains to th e unlawful
conduct of the first respondent and to interdict the first respondent from
purporting to act on behalf of the applicant and from collecting money on behalf
of the applicant without instru ctions from the applicant.
[25] I am in agreement with the applicant that the pleaded case in this matter differs
from the plea ded case in the arbitration proceedings instituted by the applicant
1 Electrolux South Africa (Pty) Ltd v Rentek Consulting (Pty) Ltd 2023 (6) SA 452 (WCC) at para
11.
7
primarily against the third respondent. I am also in agreement with applicant that
there is no contract between the applicant and the first respondent, thus there is
no arbitration clause they are subject to in terms of the Arbitration Act . In other
words, there can be no arbitration clause in terms of the Arbitration Act absent
an arbitration agreement. Furthermore, as stated by the appli cant, the arbitration
proceedings have concluded, and the arbitration award was in favour of the
applicant and the defen dants in that matter have appealed the arbitration award.
[26] In the premises, I find that t he first and second respondents first point in limine is
without success.
b) Second point in limine: non -joinder
[27] It is submitted by the first and second respondent s that before the third
respondent was contracted by the applicant, there was another service provider
named Batsumi Claims Management Solutions Pty Ltd (“Batsumi”) with whom
the applicant had a contract to provide similar services as the third respondent.
The first respondent was sub -contracted by the said service provider to render
services , by virtue of which they are in possession of the applicant’s claim files.
The first and second responde nts contend that Batsu mi has a direct and
substantial interest in this m atter and ought to be joined but have not, and this
constitutes and irregularity warranting the dismissal of the applicant’s application.
[28] The applicant contend ed that th is point in limine raised by the first and second
respondents lack legal fou ndation as no relief was sought against Batsum i and
there are no legal rights of Batsumi that will be offended by the relief sought in
this application.
[29] The applicant submitted that it has now become “settled law that joinder of a
party is only required as a matter of necessity, as opposed to a matter of
convenience, if that party has a direct and substantial interest which may be
affected pre judicially by the judgment of the court in the proceedings
concerned. ”2 The rule is that a person is a necessary party and should be joined
if such a person has a direct and substantial interest in any order that the court
2 See Judicial Service Commission v Cape Bar Council 2013 (1) SA 170 (SCA) at para 12.
8
might make, or if such order cannot be sustained or carried out into effect without
prejudicing that party, unles s the court is satisfied that he or she has waive d his
or her right to be joined.3
[30] In Absa Bank L td v Naude NO and Others4 the court set out the terms for non -
joinder as follows:
“The test whether there has been non -joinder is whether a party has a direct and
substantial interest in the subject matter of the litigation which may prejudice the party
that has not been joined. ”
[31] I am in agreement with the applicant that a “direct and substantial interest” means
an interest in the right which is the subject matter of the litigatio n and not merely
an indirect financial interest in the litigation.5 As stated in Pheko and Others v
Ekurhuleni City6:
”The test for join der requires that a l itigant have a direct and substantial interest in the
subject matter of the litigation, that is , a a legal interest in the subject matter of the
litigation which may be affected by the decision of the court. This view of what constitutes
a direct and substantial interest has been ex plained and endorsed in a number of
decisions by our courts.”
[32] In the premises, I am of the view that in this matter, the cause of action arises,
and the focus of the applicant's relief sought is against the f irst respondent who
as a sub-contractor to the third respondent has continued recoveries for RAF
claims for the applicant, despite the applicant terminating its contract with the
third respondent on 09 December 2020. It is common cause that the third
respondent had appointed the first respondent as its sub -contractor to assist in
undertaking recoveries. The relief sought by the applicant in this matter, is not a
consequence of the the sub-contract agreement between Batsumi and the first
3 Economic Fr eedom Fighters Student Command v Minister of Higher Education, Science and
Technology and Others (7641/2) [2021 ] ZAGPPHC 205 (11 March 2021) at para 84; see also
Erasmus Superior Cou rt Practice 2nd ed Volume 2 at p D1 -125.
4 2016 (6) SA 540 (S CA) at para 10.
5 See Henri Viljoen (Pty) Ltd v Awerbuch Bro thers 1953 (2) SA 151 (O) 169 ; United Watch &
Diamond Co (Pty) Ltd v Disa Hotels Ltd and Another 1972 (4) SA 409 (C) at 415G -H.
6 2015 (5) SA 600 (CC) at para 56.
9
respondent . Thus, Batsumi has no direct and substantial inte rest in the subject
matter of this litigation.
[33] I find that the second point in limine raised by the first and second respondents
is without success.
c) Third point in limine : dispute of facts
[34] The first and second respondents submitted that motion proceedings are not to
be utilised where a genuine dispute of fact exists or is even anticipated. It is
contended by the respondents that a litigant with a genuine factual dispute must
proceed by action or ris k dismissal for attempting to have a factual dispute
ventilated on motion proceedings.
[35] The factual dispute referenced in the first and second respon dents answering
affidavit deal with the factual matters arising from the first respondent ’s service s
rendered to and on behal f of Batsumi. No other factual dispute is identified by
the first and second respondents .
[36] I am in agreement with the applicant that a party that raised the question of
dispute of facts has to identify the issues in dispute and ask that said issues be
accepted on the version of the respondent on the basis of the Plascon -Evan s
principle7, failing which, that such disputes be referred to oral e vidence.
[37] Where disputes of fact have arisen on affidavits in motion proceedings8, final
relief may nonetheless be granted, if the allegations or denials of the respondents
are so far -fetched or clearly untenable that the court is justified in rejecting them
merely on the papers, and/or where the facts as stated by the respond ents,
together with the admitted facts in the applicant’s affidavit, justify such an order,
or where it is clear that the facts, alth ough not formally admitted, cannot be
denied and must be regarded as admitted.9
7 Plascon -Evans Paints (TVL) Ltd v Van Riebeeck Paints (Pty) Lt d 1984 (3) SA 623 (AD) at 634H -
635C.
8 See Room Hire Co (Pty) Ltd v Je ppe Street Mansions (Pty) Ltd 1949 (3 ) SA 1155 (TPD) at
1162.
9 Supra note 7 a bove; Stellenbosch Farmers’ Winery Ltd v Stellenvale Winery (Pty) Ltd 1957 (4)
SA 234 (C) at para 245E -G.
10
[38] The applicant has pr ovided evidence by way of annexures to its founding affidavit
(see paragraph 46 below). The applicant’s facts as alleged are undisputed by the
first and second respondent. T he first and second respondent only submitted that
it acts by virtue of a lien it has. To that end, there are no factual disputes.
[39] The applicant’s evidence is not refuted by the first and second respondents, all
they s ay is that the money it receives “are monies in respect of Batsum i files
which work was already done, and contractually, these monies belong to
Batsumi .”
[40] A lien (right of retention) is the right to retain physi cal control of another’s
property, whether moveable or immoveable, as a means of securing payment of
a claim relating to the expenditure of money or something of monetary value by
the possessor (termed “retention” or “lien holder”, while exercising his or her lien)
on that property, until the claim has be en satisfied.10
[41] I am in agreement with the applicant ’s contention that at the essence of this
concept is the fact that there must be a debt and /or improvement of the property
of, or under the control of the applicant in this instance. It is clear from the fact of
this case that we are not dealing with an improvement lien. This leave the space
only for one a spect, that is the debtor/creditor lien. This too does not find
expression because the applicant does not and n ever had a contract with the
first respondent. Consequently, the firs t respondent cannot exercise or claim a
lien against the applicant , because it has no claim against the applicant, t here is
no debt. And if there is no debt, there is nothing to secure.
[42] In the premises, I find that the third point in limine raised by the first and second
respondents is without success.
Misrepresentation and evidence of collections
[43] It is common cause that the first respondent is a separate entity to the third
respondent. The first respondent was a sub -contractor to the third respondent
and has no agreement or business arrangement with the applicant.
10 The Law of South Africa ( LAWSA) 15(2) (2008) at para 49.
11
[44] It is submitted by the applicant that the first respondent presents itself to the
public at large as an agent of the applicant. An example of this is a
correspondence provided to the court date d 01 April 2022 , below is an extract
from the correspondence :
“Our client will accept the amount tendered by the Road Accident Fund in the sum R261
025.41.
We further confirm our trust particulars as follows:
Sikahala Attorneys Trust Account
First National Bank
REF: POLMED/64104103791 /NDLAGAMANDLA ”
[45] The applicant averred that by making a statement such as above, the first
respondent has purported to be acting on the mandate of the applicant, which is
untrue, and the first respondent has further purported to be acti ng on instructions
from the applicant, this too is incorrect . To that end, the applicant submitted they
seek an order directing the first respondent to put an end to this conduct.
[46] By way of annexures and confirmatory affidavits the applicant presented the
following evidence to the court :
46.1 On the 08 December 2022, acting under the belief that the first
respondent represented the applicant, Komane Attorneys, after it
received the amount of R261 025,41 from the RAF for past medical
expenses, deducted its own fees and transferred to the first respondent,
using the same reference provided by the first respondent an amount of
R231 007,49.
46.2 On the 24 February 2021, the first respondent admitted that it received
payments in the amount of R279 723 ,51 and that it paid it over to the
applicant.
46.3 On the 09 March 2021, the first respondent informed the applicant that
it had paid the applicant an amount of R9 36 849,39.
12
46.4 The applicant’s recovery services are now conducted by Karl Els
Attorneys on behalf of the applicant. On 28 October 2022, Ka rl Els
Attorneys informed the applicant that it had discovered that Ackerman
Swart Attorneys pa id an amount of R105 795,19 on behalf of one of the
applicant’s members named A Tshangana to the first respondent. Karl
Els Attorneys ha d compiled a report of payments from information it
obtained from other attorneys who, believing that the first respondent
was acting on behalf of the applicant, made payments to the first
respondent on behalf of of the applicant.
46.6 From the Karl Els Attorneys report of payments , it was noted that the first
respondent received payment from TARR A who claimed from the RAF
on behalf of Delene F, an amount of R50 589, 81 on 30 January 2023,
and again an amount of R173 619, 14 was paid to the first respondent on
31 January 2023 form Luthuli Mkhanyisi.
46.7 Buckle KA made payments to the first respondent in the amount of R5
712,20 on 17 December 2022. A further amount of R123 463,24 was
paid to the first respondent on behalf of Nkwadipho GMS and on behalf
of Smit G who claimed from the RAF on behalf of Christoffel, an amount
of R160 711,33 was also paid to the first respondent during February
2022. On behalf of Punjabi Derby, the law firm Niehaus McMahon
Attorneys made payment t o the first respondent in the amount of R46
368,68.
[47] As stated earlier, the evidence above is not refuted by the first respondent, all it
says is that the money it receives, “are monies in respect of Batsumi files which
work was already done, and contractually, these monies belong to Batsumi.”
Declarator
[48] The following are the jurisdictional grounds the applicant must meet before the
grant of th e declarator :
13
48.1 The applicant must be an interest ed person in the subject matter .11 The
right must attach to the applicant personally and should not be a
derivative interest.12
48.2 The applicant must have an interest in an existing, future, or contingent
(conditional title to) right. The court will not decide abstract, academic or
hypothetical questions unrelated to such interest.13
[49] Taking into account the totality of evidence presented in this case, I am satisfied
that the appl icant has met the jurisdictional requirements for the de clarator it
seeks.
Interdict
[50] It is trite in our law that in order to be successful in seeking interdictory relief, the
applicant will have to show (i) that they have a clear right; (ii) an injury actually
committed or reasonable apprehension of harm ; and (iii) the absence of an
alternative rem edy or relief. The discretion of a court to refuse an interdict ,
provided the three requisites are present is very limited.
[51] It is submitted by the applicant that the first respondent collects money due to
the applicant. It is alleged that the respondent presents itself as an agent or
service provider of the applicant. The applicant is entitled to those funds in terms
of Rule 14 of its Rules . The applicant contended that the firs t respondent ’s
conduct clearly infringes on the applicant’s rights . I am of the view that the
applicant has established the existence of a clear right which it seeks to enforce.
[52] The second requisite for an interdictory relief is an injury actually committed or
reasonable apprehension of harm. The applicant has submitted that the term
“injury” should be understood to mean an infringement of the right, which has
been established, and resultant prejudice. Prejudice, the applicant contended is
not synonymous with damages, and it is sufficient to establish potential prejudice,
While a reasonable apprehension of injury /harm is one that a reasonable person
11 Milani and Another v South African Medical and Dental Council and Another 1980 (1) SA 899
(T) at 902H -903A.
12 Harms Civil Procedure in the Superior Court at p A4.18.
13 Supra.
14
might entertain on being faced with the facts, the test is thus objective, and the
applicant need not establish on a balance of probabilities that the injury will
follow . Where a party is seeking to protect ownership, irreparable prejudice is
presumed.14
[53] Taking into account the totality of evidence in this matter, I am in agreement with
the applicant that the actions of the first respondent has caused prejudice to the
applicant , as the fir st respondent has continued to collect recoveries from the
RAF due to the applicant under the misrepresentation that it represent s the
applicant .
[54] The third requisite for interdictory relief is the absence of a n alternative
remedy/relief. It is the applicant’s contention that it has no other remedy . The
applicant averred that it has no contract with the first respondent . The applicant
had asked the first respondent to sop its conduct, and the applicant also pointed
out that the first respondent , insists that they continue to receive money f rom the
“files that belong to Batsumi.” The applicant contended that there is no such thi ng
as “Ba tsumi files” wh en it comes to the applicant’s members. The applicants
contended that it has no other means to obtain the protection it seeks save for
this application.
[55] In the premises , I find that the applicant has met the requisites for interdict ory
relief, I therefore grant the prohibitory interdict.
Order
[56] In in the circumstances, I hereby order the f ollowing:
56.1 It is declared that the conduct of the first respondent, in so far as
it continues to undertake collection s on behalf of the applicant and
accepts and/or receives payments on behalf of the applicant
under circumstances where the first respondent is not a service
provide r of the applicant be and is hereby declared unlawful.
14 Supra at p A5.4
15
56.2 The first respondent is hereby prohibited and interdicted from
continuing to present itself as a service provide r of the applicant.
56.3 The first respondent is hereby prohibited and interdicted from
continuing to undertake collections and to receive int o its Trust
Account, funds belonging to the applicant, which funds are paid
into its Trust Account by members of the applicant who have
successfully claimed payments for past and where applicable
future medical expenses from the Road Accident Fund.
56.4 The first respondent is hereby directed to furnish the applicant
with a consolidated report containing a list of all names, file
numbers and payments that it has received since 09 December
2020 to date of this order.
56.5 The first respondent is directed to pay the applicant all monies
received by it , on behalf of the applicant, and paid to it by
members of the applicant who have successfully claimed
compensation for past and where applicable future medical
expenses against the RAF from the 09 December 2020 to date of
this order.
56.6 In the event that the first respondent fails to comply with the
orders in paragraphs 56.4 and 56.5 above within 14 days from the
date of this order , that an independent auditor be appointed by
the Independent Regulatory Board of Auditors (IRBA) to:
56.6.1 Undertake an audit of the first respondent’s Trust
Account from the period 09 December 2020 to date
of this order;
56.6.2 To determine the amounts received by the first
respondent in relation to the Road Accident Fund
recoveries pertaining to payments made by
members of the applicant to the first respondent
pursuant to successful claims for compensation for
56.6.3 past and where applicable, future medical expenses
against the Road Accident Fund; and
To furnish the applicant with a report containing the
exact amount collected by the first respondent in
relation to the aforementioned claims.
56.7 It is declared that the first respondent is liable to pay to the
applicant the amount so determined by the independent auditor
referred to above.
56.8 Costs of this application are to be paid by the first respondent on
an attorney and client scale.
W DOMINGO
ACTING JUDGE OF THE HIGH COURT
PRETORIA
Delivered: This judgement was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation to the parties' legal
representatives by email and by uploading it to the electronic file of this matter on
Case lines. This matter was heard in open court on 12 February 2025. The date for
hand down is deemed to be 12 May 2025.
APPEARANCES
For the Applicant:
For the First Respondent:
For the Second Respondent: ADVOCATE ITUMELENG HLALETHOA instructed
by MALUKE ATTORNEYS, MR EDDISON
MOGANE and MR LUFUNO MATHIVHA
NO APPEARANCE
NO APPEARANCE
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For the Third Respondent: NO APPEARANCE
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