nature. A final order against the Fourth Respondent was made on the 20 th of February
2026 and does not form part of the reasoning of this judgment.
2. From the outset it is important to reiterate that the Applicant appeared in person . In this
regard the guidance set out in Mpange and Others v Sithole,1 proved invaluable:
“15. It has been long accepted that the Court should make allowance for the
inexperience of lay litigants who “cannot be cannot be expected to display the same
ability of draughtsmanship and precision of language as is expected by a legally trained
and experienced pleader ” This approach was restated by the Constitutional Court in
Xinwa and others v Volkswagen of South Africa (Pty) ltd [2003] ZACC 7; 2003 (4) SA
390 CC , where was said
“ Pleadings prepared by laypersons must be construed generously and in the light
most favourable to the litigant. Lay litigants should not be held to the same standard
of accuracy, skill and precision in the presentation of their case required of lawyers.
In construing such pleadings, regard must be had to the purpose of the pleading as
gathered not only from the content of the pleadings but also from the context in
which the pleading is prepared. Form must give way to substance.” [at paragraph 13]
16. In the present case, the applicants have set out all relevant facts and the context to
those facts. Over the course of four Court appearances, the true legal issues and
remedies possibly available have been discussed and argued in great detail
notwithstanding that they were not all identified by the applicants in their Notice of
Motion and supporting affidavits. There has been no prejudice to the respondent.
Indeed, respondent’s counsel submitted in the Heads of Argument which he prepared
that the remedy of specific performance should be ordered and, in argument, presented
certain proposals as to how this could be implemented”
Background to urgent application
certain proposals as to how this could be implemented”
Background to urgent application
3. The Applicant suffers from chronic epilepsy , bipolar disorder and ADHD. He had
previously been a member of the Discovery Health Medical Scheme, which scheme
provided him with the necessary medication and , where required, emergency medical
treatment for inter alia the aforementioned conditions.
4. He had been a partner in a tax consultancy company until he terminated said
partnership on ethical considerations. His employment at the tax consultancy firm was
1 Mpange and Others v Sithole (07/7063) [2007] ZAGPHC 202; 2007 (6) SA 578 (W) (22 June 2007)
formally terminated on the 6 th of October 2025. His membership with Discovery Health
Medical Scheme, however, had been terminated on the 31st of August 2026 already.
5. These dates, namely the termination of his membership of the scheme and termination
of his employment, form the nub of the factual dispute between the Applicant and the
First to Third Respondents.
6. On the 23 rd of December 2025 the Applicant applied for membership of the medical
scheme of the First Respondent (“Fedhealth”). The scheme approved his application for
membership however it imposed the following waiting periods based on the fact that
there was a break in membership from the previous medical scheme (Discovery) for
more than ninety (90) days:
6.1. Three (3) months general waiting periods;
6.2. Twelve (12) months conditions waiting period on the disclosed conditions;
6.3. The waiting periods also exclude prescribed minimum benefit cover.
7. These waiting periods were imposed per Section 29A(1) of the Medical Schemes Act,
No 131 of 1998 ("MSA") which provides that:
“29A. Waiting periods.
(1) A medical scheme may impose upon a person in respect of whom an application is made
for membership or admission as a dependant, and who was not a beneficiary of a medical
scheme for a period of at least 90 days preceding the date of application-
(a) a general waiting period of up to three months; and
(b) a condition-specific waiting period of up to 12 months.”
8. Aggrieved by the imposition of the aforementioned waiting periods the Applicant
approached the Registrar of the Council for Medical Schemes (Second Respondent)
(“CMS”), arguing that the exemption contained in Section 29A(6)(a) of the MSA applied
to him:
“(6) A medical scheme may not impose a general or condition -specific waiting period on a
person in respect of whom application is made for membership or admission as a dependant,
and who was previously a beneficiary of a medical scheme, terminating less than 90 days
and who was previously a beneficiary of a medical scheme, terminating less than 90 days
immediately prior to the date of application, where the transfer of membership is required as a
result of—
(a) change of employment; or
(b) an employer changing or terminating the medical scheme of its employees, in which case
such transfer shall occur at the beginning of the financial year, or reasonable notice must have
been furnished to the medical scheme to which an application is made for such transfer to
occur at the beginning of the financial year.”
9. Fedhealth had calculated the ninety-day window period until application date (23
December 2025) from date of termination of membership with Discovery (31 August
2025) whereas, according to the Applicant, it should have calculated same from the
date of termination of employment, namely the 6 th of October 2025. Had Fedhealth
calculated the period from that date, he would have been without medical aid cover for a
period of less than ninety days and as a result the waiting periods as envisaged in the
MSA would not have been applicable to him.
10. As a result, he requested the Registrar:
10.1. Immediately waive the 3 -month general and 12 -month condition -specific waiting
periods.
10.2. Provide full, backdated cover for all PMB conditions and emergency services
effective 01 January 2026.
10.3. Recognize the formal "Change of Employment" date as 06 October 2025.
11. On the 4th of February 2026 the Registrar found that Fedhealth’s application of the MSA
and its provisions was correct and that they were entitled to impose the waiting periods
per Section 29A(1) thereof.
12. In the interim it should be noted that the Applicant, being without medical cover had
been unable to obtain the necessary preventative treatment for his medical conditions
which in turn resulted in his inability to properly function and concomitantly earn an
income in his new company. He also therefor could not make payment of the monthly
premiums towards Fedhealth. On the 10th of February 2026 Fedhealth therefor issued a
final demand for payment of the premiums threatening summary termination of his
medical cover by the 16th of February 2026.
13. It was based on this threat of withdrawal of medical aid cover that the Applicant initially
framed urgency in bringing the matter to this Court in the early morning hours of Monday
the 16th of February 2026.
the 16th of February 2026.
Proceedings of the 16th of February 2026
14. In his founding papers, the Applicant argued urgency on the basis that the withdrawal of
his medical aid cover would result in the immediate cessation of life sustaining
medication which according to him is a direct violation of Regulation 8(3) of the Medical
Schemes Act, which upon his construction , mandates funding for prescribed minimum
benefit emergencies regardless of arrears.
15. In his original notice of motions, he sought the following relief:
“2. That a Rule Nisi be issued calling upon the Respondents to show cause on a date to be
determined by this Honourable Court, why an order should not be made final in the
following terms:
2.1. Interdicting and Restraining the 1st Respondent from suspending or terminating the
Applicant's medical scheme membership …………… pending the final determination of this
matter.
2.2. Ordering a 90 -day stay on all premium payments and arrears collections by the 1st
Respondent, effective from the date of this order, to allow for the Applicant's clinical
stabilisation and professional recovery.
2.3. Directing the 1st Respondent to immediately authorise and fund a Home -Based
Stabilisation Bridge, to be conducted under the clinical oversight of Dr……., including the
administration of compounded Ketamine nasal spray (as a cost -effective PMB alternative)
monitored by Sr ………..(Professional Nurse).
2.4. Directing the 1st Respondent to pay an emergency infrastructure and clinical stipend of
R30,000.00 into the Applicant's business account …………… within 4 (four) hours of the
granting of this order, for the preservation of the Applicant's practice and clinical nutrition.”
16. When h is application was heard at 10h00 on the 16 th of February 2026 , n one of the
Respondents had (understandably considering the extremely truncated time periods)
given notice of intention to oppose as yet.
17. During the course of his submissions, it became evident that the fundamental underlying
urgency in his application related to the imminent threat posed by the non -medication of
his very severe chronic conditions and especially his epilepsy which ha d previously,
following an attack, resulted in a brain haemorrhage.
18. Whether the failure to obtain timeous preventative and emergency treatment was due to
18. Whether the failure to obtain timeous preventative and emergency treatment was due to
the withdrawal of membership benefits as a result of non -payment or due to the waiting
periods applied, the nature of the imminent harm remained constant.
19. However, vis-à-vis the relief sought against the First, Second and Third Respondents as
initially framed I had indicated to the Applicant that his reliance on medical scheme
cover to provide treatment for these conditions (whether it be by virtue of the nature of
prescribed benefits or by virtue of the alternative calculation of the waiting periods ), is
reliant on him being a member of the medical scheme. In essence the relief sought
against the First to Third Respondents would become moot should his membership be
terminated on the 16th due to non-payment.
20. Given the wide -ranging nature of the relief sought against the First, Second and Third
Respondents as well as the extremely trunc ated time periods for their opposition , I
deemed it prudent to frame an order preserving the status quo to afford them an
opportunity to meaningfully respond to the application. As a result, I made an order in
terms of which the matter was set down for argument on Friday the 20 th of February
2026 as well as order interdicting the First Respondent from suspending or terminating
his membership pending the outcome of that hearing. The order also provided time
frames for filing of answering affidavits and replying affidavits herein.
21. The First Respondent (Fedhealth) opposed the application and filed its answering
affidavit. The Second and Third Respondents have filed notices to abide.
22. The App licant, on the 17 th of February 2026, settled the arrear payments. In his
amended Notice of Motion, he withdrew prayer 2.4 supra.
Proceedings of 20 February 2026
23. At inception of the hearing, the Applicant indicated that he also withdrew prayer 2.3 of
the amended Notice of Motion (authorisation funding of the home -based stabilisation
bridge) after consultation with his medical care provider. He therefore persisted with:
23.1. Prayer 2.1: Interdicting and Restraining the 1st Respondent from suspending or
terminating the Applicant's medical scheme membership (.........) pending the final
determination of this matter.
23.2. Prayer 2.2: Ordering a 90 -day stay on all future premium payments by the 1st
Respondent, effective from 1 March 2026, to allow for the Applicant's clinical
stabilisation and professional recovery following the 27 February 2026 IRP6 revenue
surge.
stabilisation and professional recovery following the 27 February 2026 IRP6 revenue
surge.
24. However, the draft order uploaded on the 19 th of February 2026 encom passes different
relief than the remaining prayers 2.1 and 2.2 of the amended Notice of Motion.
“2. The First Respondent is directed to immediately reinstate the Applicant's membership
without the imposition of any condition-specific exclusions or waiting periods.
3. It is declared that the Applicant's application for membership fell within the 90 -day period
contemplated in Section 29A(1)(a) of the Medical Schemes Act, calculated from the termination
of his professional association on 6 October 2025.
4. The First Respondent is directed to provide final authorization for all chronic protocols,
medications, and specialist consultations as prescribed for the Applicant's clinical conditions
(Epilepsy and Mental Health), within 24 hours of the granting of this Order.”
25. The difference in the framing of the relief sought created some confusion as to the
nature of these proceedings: W hereas the amended Notice of Motion (ostensibly)
provides for interim relief pending finalisation of future proceedings (the nature of those
proceedings will be discussed presently), the draft order provides for final relief
26. Whilst allowance must be made for the drafting and legal submissions of a lay litigant,
this must be countenanced against the rights of the opposing party to know the case
they are called upon to meet. As such , having framed the relief sought in the notice of
motion as being interim relief, I intend to make my determination based on the
requirements for such relief. This also accords with the line of reasoning pursued by the
Applicant at the hearing in which he lay emphasis on the balance of convenience in
granting the interim relief sought noting that the only prejudice should he at a later stage
be proven wrong to be suffered by the First Respondent is an adjustment in funds which
they can recover from him whereas if the relief is not granted his life is in imminent
danger.
27. That having been said, as pointed out by Fedhealth, the Applicant’s pleadings do not
indicate the nature of the pending proceedings which the interim relief are subject to.
28. From a conspectus of the papers filed by the Applicant as well as following questioning
by this Court at the hearing, it would seem that the Applicant in all probability will appeal
the decision of the CMS Registrar per Section 49 of the Medical Schemes Act which
provides that such appeal must be lodged with the CMS Appeals Committee within thirty
provides that such appeal must be lodged with the CMS Appeals Committee within thirty
(30) days of the decision. In this regard I note that in the founding affidavit one of the
grounds of urgency advanced was that the appeals process is lengthy and would not be
concluded in sufficient time to offer him substantial redress. Likewise in his
supplementary note on rebuttal, he notes that: “ the balance of convenience is absolute:
the scheme faces a minor financial adjustment; I face permanent physical injury or
death”.
Interpretation of Section 29A(6)
29. Even though the interim relief sought is founded on the imminent danger posed to the
Applicant’s right to life or right to health in terms of the Constitution, insofar as the right
to be assessed for purposes of the present application is concerned, the right must be
established within the context of the “main” future application. In other words, whilst the
Applicant undoubtedly has a constitutional right to life and a right to health, in the
present proceedings he needs to establish a prima facie right that is the subject matter
of the infringed right that he will rely upon for purposes of obtaining final relief.
30. In casu with regards to the pending review/appeal of the Registrar’s determination , the
Applicant’s main contention is that , properly constructed , he has a right in terms of
Section 29A(6)(a) to not have waiting periods imposed on his benefits in terms of his
medical scheme coverage with Fedhealth.
31. The Applicant contends that no waiting period can be imposed in instances where the
change of medical scheme results from change of employment. He concedes that
Section 29A(6) does make this exception subject to the gap in membership of a medical
scheme not having exceeded a period of 90 days. The dispute lies with , as the
Applicant as termed, the “triggering date” for the calculation of the 90 days. He argues
that the correct interpretation of S27A(6)(a) would be that the 90-day window period is
calculated from date of termination of employment, whereas the Registrar had
determined that the calculation is from date of termination of membership of the
previous scheme.
32. Section 29A(6) reads as follows:
“(6) A medical scheme may not impose a general or condition-specific waiting period on a person
in respect of whom application is made for membership or admission as a dependant, and
who was previously a beneficiary of a medical scheme , terminating less than 90 days
immediately prior to the date of application, where the transfer of membership is required as
a result of—
(a) change of employment; or
(b) an employer changing or terminating the medical scheme of its employees, in which case
such transfer shall occur at the beginning of the financial year, or reasonable notice must
such transfer shall occur at the beginning of the financial year, or reasonable notice must
have been furnished to the medical scheme to which an application is made for such
transfer to occur at the beginning of the financial year.”
33. I have underlined the operative portions of the section. On a simple interpretive
approach there is no other construction than the following: the word “ terminating”
applies to the previous “medical scheme”. Subsection (a), “ change of employment” , is
one of the listed causes of the “transfer of membership.” There is no construction of the
section and subsection that allows for any other interpretation than that the membership
of the previous medical scheme must have been terminated less than 90 days before
the application to the new medical was made.
34. Accordingly, the Applicant has no right founded on this section, to not have waiting
periods imposed upon him.
Alternative argument based on regulation 8(3)(b)
35. I have also considered the remote possibility of the future proceedings relating to the
more general contention that a medical scheme should not be able to contract itself out
of providing emergency life sustaining treatment (PMB’s) as contended for in the
Applicant’s practice note
36. The Applicant indicated that the basis for such a contention relates to his interpretation
of Regulation 8(3) of the Medical Schemes Act as read with Section 2 9A(1) thereof. For
the sake of evincing a full consideration of the submissions made and giving the
Applicant an unwarranted berth and benefit of doubt I will briefly address the argument
below
37. The Applicant relies selectively the selective wording of Regulation 3(b) : ” Immediate
medical or surgical treatment for a prescribed minimum benefit condition was required
under circumstances or at locations which reasonably precluded the beneficiary from
obtaining such treatment from a designated service provider.”
38. However, the regulation must be read within the correct context:
Regulation 2: “..... subject to Section 29(1)(t) of the Act the rules of a medical scheme may in
respect of any benefit option provide that:
(a) …;
(b) A co-payment or deductible the quantum of which is specified in the rules of the medical
scheme may be imposed on a member if that member or his or her dependants obtained
such services from a provider other than a designated service provider, provided that no co -
payment or deductible is payable by a member if the service was involuntarily obtained from
a provider other than a designated service provider. “
Regulation 3:”... for purposes of sub -regulation 2(b) a beneficiary will be deemed to have
Regulation 3:”... for purposes of sub -regulation 2(b) a beneficiary will be deemed to have
involuntarily obtained a service from a provider other than a designated service provider, if:
(a) ....
(b) Immediate medical or surgical treatment for a prescribed minimum benefit condition was
required under circumstances or at locations which reasonably precluded the beneficiary
from obtaining such treatment from a designated service provider; or
(c) .....”
39. It should immediately be apparent from the wording that Regulation 8(3) in itself does
not place a duty on medical schemes to in emergency instances pay for prescribed
minimum benefit conditions.
40. Regulation 8(3) (as well as 8(1) and 8(2)) regulate co -payments for treatments of
prescribed minimum benefit conditions on the circumstances where a beneficiary did not
avail itself of a scheme’s designated service provider. There is simply no scope for an
inference that read with Section 2 9A(1) the regulation dealing with co -payments
somehow imposes the duty on a medical scheme to , regardless of waiting periods
imposed in terms of Section 2 9A(1) of the Act , pay for the emergency treatment of
prescribed minimum benefit conditions.
41. I pause to note that i t was within the context of this regulation that the Applicant placing
reliance on Genesis Medical Scheme v Registrar of Medical Schemes and Another 2
originally asserted that a medical scheme must pay for emergency treatment for
prescribed minimum benefit conditions regardless of whether any arrears are due.
Genesis related to the circumstances under which a medical scheme may levy
contributions where a prescribed minimum benefit condition was not treated by the
scheme’s designated service provider. It in no way or form relates to either the question
of non -payment or arrears nor does it infer any duty of payment under any and all
circumstances of emergency treatment of prescribed minimum benefits.
Rationality of Fedhealth’s decision
42. The Applicant also argued that Fedhealth is constitutionally barred from imposing the
12-month waiting period in respect of emergency PMB conditions where such conditions
also constitute conditions excluded on the basis that they are specified conditions.
43. The Applicant’s argument seemed to be that his right to healthcare in terms of Section
27 of the Constitution is being disproportionately limited by the interpretation afforded to
27 of the Constitution is being disproportionately limited by the interpretation afforded to
the MSA by Fedhealth and/or the manner in which Fedhealth has chosen to apply the
provisions of the MSA.
44. The Applicant contends that Fedhealth is incorrect in stating that they are bound to
apply the 12-month exclusionary period as per Section 2 9(1)(a). According to him they
2 Genesis Medical Scheme v Registrar of Medical Schemes and Another (CCT139/16) [2017] ZACC 16; 2017 (9) BCLR
1164 (CC); 2017 (6) SA 1 (CC) (6 June 2017)
have a discretion whether or not to impose the waiting periods. In this regard it is
undoubtedly so that the Act states that medical schemes may impose waiting periods as
per Section 27A. According to the Applicant the imposition of the waiting periods is
discretionary and may be waived by Fedhealth. It is the decision of Fedhealth not to
waive the imposition of the waiting periods in his case that he would want to review and
set aside.
45. The Applicant contends that Fedhealth, a medical scheme performs a public function
and therefore every exercise of power by it must be rational and fair. The essence being
that it is subject to review in terms of PAJA or the principle of legality.
46. The First Respondent (Fedhealth) denies that it is a public body exercising public
administrative functions and in this regard has referenced the recent case of Famous
Idea Trading 4 (Pty) Ltd t/a Deli Road Career Pharmacy v Government Employees
Medical Scheme and Others (2026) ZACC where the constitutional Court definitively
held that the conduct of business of medical schemes does not constitute administrative
action.
47. The Applicant denies that Famous Idea Trading is applicable to the facts in casu as the
facts in that matter related to the commercial doings of a medical scheme whereas in
casu the decision is made within the context of the broader statutory rights and duties to
healthcare. He relies on the decision of the constitution Court in Swanepoel N. O. v
Profmed 2024 ZACC 23 which, according to him, definitively held that decisions
affecting a member’s rights under the Act do constitute administrative action it can also
involve the exercise of public power.
48. In Swanepoel, it was held that:
“[54] The decision of the Appeal Board appears to me to constitute administrative
action. In terms of the definition of administrative action in PAJA, the Appeal Board’s
decision is by an organ of state exercising public powers and performing public functions
decision is by an organ of state exercising public powers and performing public functions
under legislation. The Appeal Board exercises a public function – its establishment under
the MSA serves the purpose of scrutinising decisions of the Council and, indirectly, those of
the Registrar (since those decisions are appealed to the Council). This is very similar to
internal appeals within other public bodies. Thus, the Appeal Board is performing a public
function when it exercises its statutory appeal power over a decision of a scheme to
terminate the membership of one of their members. The conclusion is therefore inescapable
that the Appeal Board is an organ of state whose decisions constitute administrative action.”
49. The Applicant has misapplied the dicta in Swanepoel which related to the CMS appeal
board, to Fedhealth, a medical scheme . The provisions of PAJA, or the principle of
legality, apply to the CMS appeal board’s ruling in respect of decisions taken by a
medical scheme, but do not apply directly to the medical scheme’s decisions
themselves.
General arguments based on constitutionality/invalidity
50. The Applicant’s arguments relating to constitutionality were raised tangentially within the
context of his arguments relating to interpretation and application of either Section
29A(6) and Regulation 8(3)(b) as discussed supra.
51. No standalone challenge was brought to the legislation or the regulations themselves. At
most the Applicant submitted that the imposition of a 12-month waiting period for
specified conditions (which also constitute prescribed minimum benefit conditions ) is a
disproportionate limitation on his right to health in terms of Section 27 of the
Constitution, which does not serve the purpose (anti-selection) of imposing such waiting
periods. This argument was raised at the hearing within the context of the two
interpretative arguments discussed supra without any independent substantiation.
52. To elevate this, and the other general arguments based on the Constitution, to constitute
validity challenges to the MSA and the Regulations would not only require submissions
and argument not presented in the present application, but would also be completely
outside the bounds of a Court merely providing assistance in framing of issues on behalf
of an unrepresented litigant.
Unjustified enrichment
53. The Applicant, belatedly, in his “notes on rebuttal” obliquely raised an argument based
on unjustified enrichment (within the context of his argument based on Regulation 8(3)).
The totality of the argument was that:
“Their demand for a monthly contribution of R5,488.00 while contractually excluding the
“Their demand for a monthly contribution of R5,488.00 while contractually excluding the
very life -sustaining treatment they are legislatively mandated to provide is not
"underwriting"; it is unjust enrichment and a "death sentence by paperwork."
54. I do not intend to embark on an in -depth evaluation of the merits of the argument as
same had not been developed in the pleadings nor fully expanded on in the proceedings
themselves. Suffice to say that, given my findings supra, the Applicant would not have
proven that there was no legal cause (Sine Causa) for Fedhealth’s “enrichment”
Finding
55. From the aforementioned it should be evident that regardless of whether the application
is of an interim nature or a final nature, the Applicant has failed to prove any right ( prima
facie or clear) that would entitle him to the interim relief sought per the amended notice
of motion or even the final relief per the draft order. My findings are dispositive to each
of the arguments raised pertinently by the Applicant and even to those raised by
inference on a generous interpretation of the Applicant’s arguments. As Madlanga, J
writing for the majority in Eskom Holdings SOC Ltd v Vaal River Development
Association (Pty) Ltd and Others 2023 (4) SA 325 (CC) (23 December 2022) Madlanga,
J remarked:
“[251] There are legal questions that are capable of easy resolution to any judge worth their
salt. Those must be decided definitively. If, as a matter of law, the right asserted by the
applicant for interim relief is held not to exist at all, that will be the end of the matter. And that
will result in a saving in costs as there will be no subsequent litigation...”
56. As indicated supra technically the amended Notice of Motion only makes provision for 2
prayers both of which by necessary implication are to be dismissed. However, even
assuming the order sought per the draft order was properly canvased and in issue
between the parties, those would also have to be dismissed.
Costs
57. The First Respondent contended costs on a high Court scale with counsel fees at scale
C on the basis that the application was stillborn ab initio alternatively that it should have
been withdrawn upon receipt of the answering affidavit. Despite arguing various factors
which traditionally are taken into account for punitive attorney and client scale costs, to
its credit, Fedhealth did not contend for such an order.
58. The Applicant on the other hand relied on the Biowatch principle to assert that no order
as to costs should be made against him.
as to costs should be made against him.
59. I am mindful of the fact that Fedhealth is not a state entity . However, sight should not be
lost of the fact that the Second Respondent, the Council for Medical Schemes, does
exercise public functions in terms of statute. Even though t he disjointed manner in
which the relief sought was phrased by the Applicant ha d the effect that no relief was
sought against the CMS in this application, as discussed supra, any interim relief would
probably have been granted pending final relief against CMS registrar or CMS appeal
board.
60. That the Applicant in bringing this application sought vindication of his constitutional
rights is undoubtable : B y virtue of the provisions of the MSA he is excluded from
receiving treatment for very serious conditions that whilst being defined as prescribed
minimum benefit conditions, are due to their pre -existing nature and diagnosis also now
excluded as condition specific exclusions for a period of 12 months. Left untreated,
these conditions pose a very real threat to his health and even his life. The fact that the
finding herein went against him, does not detract from his bona fides in launching this
application.
61. In this regard the following dicta of the Constitutional Court in Economic Freedom
Fighters v Gordhan and Others; Public Protector and Another v Gordhan and Others
2020 (6) SA 325 (CC) (29 May 2020) finds application:
“[82] Whilst this Court must be slow to interfere in the exercise of a true discretion, which
includes the granting of a costs order, here it is entitled to interfere. That is so because the
High Court’s decision was influenced by a misdirection on the applicable principles on the
matter. For the reasons already advanced above, these matters are of a constitutional
nature. That much is perspicuous from the High Court’s careful engagement with the principles
set out in OUTA. Therefore, the High Court erred in not applying Biowatch to the question of
costs.
[83] Regardless of the EFF’s motivation to involve itself in these proceedings, as a private party
acting seemingly in the public interest, it pursued arguments of genuine constitutional
concern. Although those arguments have been unsuccessful in both the High Court and on
appeal before this Court, it would be parsimonious to contend that the constitutional arguments
the EFF raised were of a specious or opportunistic calibre. The EFF therefore should have
the EFF raised were of a specious or opportunistic calibre. The EFF therefore should have
received the benefit of the Biowatch principle and should not have had costs awarded against it.
[84] Accordingly, as far as the order of the High Court instructed the EFF to pay Mr Gordhan’s,
Mr Pillay’s and Mr Magashula’s costs that part of the order should be set aside.”
62. Even though he erred in the legal application and principles thereof, it cannot be said
that the constitutional arguments or rights alluded to by the Applicant were raised
speciously or opportunistically.
63. Furthermore, I am persuaded that it would also not be in the interest of justice to order
the Applicant to pay Fedhealth’s costs: It is already abundantly clear that he is