THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case 2026-090602
In the matter between:
3SXITY HEALTH (PTY) LTD Applicant
and
COUNCIL FOR MEDICAL SCHEMES Respondent
JUDGMENT
DU PLESSIS J
Introduction
[1] In this urgent application (Part A), the applicant seeks interim relief arising from
the respondent’s failure to determine the applicant’s application for renewal of its
accreditation as a Managed Health Care Organisation (“MHCO”) in terms of
Regulation 15B of the General Regulations
1 promulgated under the Medical Schemes
Act2 (“the Act”) before the expiration of the accreditation.
1 GNR 1262 of 20 October 1999 (“the Regulations”).
2 131 of 1998.
(1) REPORTABLE: Yes☐/ No ☒
(2) OF INTEREST TO OTHER JUDGES: Yes☐ / No ☒
(3) REVISED: Yes ☒ / No ☐
Date: 30 April 2026
2
[2] The relief is framed as an order compelling the respondent to renew its
accreditation, alternatively an order directing that the accreditation be deemed to
continue on the same terms and conditions as before, pending the final determination
of review proceedings and/or an appeal to the Appeal Board contemplated in the Act.
The applicant further seeks an order compelling the respondent to provide documents
and information underlying the serious allegations raised in a letter dated 19 March
2026, and to afford the applicant a reasonable opportunity to respond to those
allegations.
[3] What makes this somewhat more complicated is that the respondent scheduled
a board meeting for 29 April 2026, at which they will decide on the accreditation. The
respondents thus say that this application is premature; they should have waited for
the board’s decision. The applicant, however, makes it clear that what it is reviewing
is not the decision to be made, but the failure to make the decision
3 before the
expiration of the date, and, further, the procedural irregularities in the decision to be
made, in that they could not properly exercise their right to audi. The facts will clarify
these positions.
Background
[4] The applicant is a company conducting the business of a managed health care
organisation (“MHCO”) and has provided this service for decades, with its
accreditation routinely renewed. The respondent is the Council for Medical Schemes
(“CMS”), the statutory regulator established under the Act. It is the decision-maker for
the accreditation and renewal under Regulation 15B.
[5] The applicant provides services to Siswe Hosmed Medical Scheme and
SABMAS. It can provide these services only if it is accredited. The applicant’s
accreditation expired on 25 April 2026. It is common cause that it submitted its
accreditation application on 16 January 2026, more than the required three months
before the expiry date.
before the expiry date.
3 It relies on Oosthuizen’s Transport (Pty) Ltd v MEC, Road Traffic Matters, Mpumalanga 2008 (2) SA 570 (T) and
Director: Mineral Development, Gauteng Region v Save the Vaal Environment [1999] ZASCA 9.
3
[6] During 2024 and 2025, concerns arose regarding the applicant's affairs,
including a KPMG investigation concluded in 2025 and reports generated in the
context of curatorship and other regulatory oversight. This culminated in a letter dated
19 March 2026, in which the respondent set out a series of concerns regarding
whether the applicant remained fit and proper, whether it had the necessary systems,
resources, skills and capacity, and whether it met the regulatory requirements for
renewal.
[7] The applicants submit that the letter was framed very generally, that some
instances showed that a conclusion had already been reached, and that there was no
underlying documentation or source material to enable them to respond meaningfully.
They requested the supporting material, including the full KPMG report, reports and
updates from Ms Mpakati and Mr Fleming (the former and current curators), records
of meetings, complaints, discussions, and other source material underlying the
concerns raised in the 19 March 2025 letter.
[8] On 13 April 2026, the applicant requested that its accreditation remain in place
pending a proper process for engaging with the concerns once it receives the
documentation. The respondent, in turn, indicated that the board will decide on 29 April
2026 (after the accreditation expires). In other words, the applicant’s accreditation
lapsed by efflux of time on 25 April 2026, before the respondent decided to renew.
[9] The applicant’s case is thus twofold: first, that the respondent failed to make a
timely decision in a manner compatible with the regulatory framework; and second,
that the process followed by the respondent is not in line with the requirements of
procedural fairness and audi alteram partem, as required by the regulations
themselves and by section 33 of the Constitution.
[10] The applicant submits that it is not asking me to make a final decision on
whether they meet every substantive criterion for renewal. It’s rather that they are in a
whether they meet every substantive criterion for renewal. It’s rather that they are in a
position of losing accreditation before the respondent makes a decision, while at the
same time, they do not have access to the information that would enable them to
4
respond meaningfully to the concerns raised. They submit absent interim relief, they
risk devastating commercial consequences.
[11] The respondent opposes this application on several grounds. Firstly, the matter
is not urgent, as any perceived urgency is self-created, as the applicant has been
aware of the underlying concerns for a considerable time. Second, the application is
premature because no final decision on renewal had yet been made when the
application was launched, which means the specialist regulatory committee remained
seized with the matter. Third, they submit that the applicant has not exhausted internal
remedies (relying on section 50(3) of the Act read with section 7(2) of the Promotion
of Administrative Justice Act
4 (“PAJA”). Finally, the respondent submits that the
applicant is, in substance, seeking pre-litigation discovery and, if it wishes to access
the documents, should do so through the proper mechanisms.
[12] This leaves the court with the narrow question of where a regulator delays
determination of a renewal application until after the existing accreditation expires, and
where the regulated party shows that the process was procedurally unfair, may the
Court grant interim restorative and preservative relief pending either a proper decision,
review proceedings, or an internal appeal?
[13] The question is further complicated by the fact that the decision had not been
taken by the time the application was launched and argued, and was supposedly taken
only two days after the hearing. Still, the decision sought to be reviewed by the
applicant is not this decision, but rather the failure to make a timeous decision, which
muddies the water as to what the effect of any decision made will be. The matters of
urgent court are often muddy.
Urgency
[14] While there is some substance to the respondent’s argument that the applicant
had known for some time of the difficulties that might complicate the renewal, this
had known for some time of the difficulties that might complicate the renewal, this
argument loses force when the request for information needed to enable a meaningful
response is taken into account. After the 19 March 2026 letter, which I agree makes
4 3 of 2000.
5
general ascertains (for instance, referring to complaints without stating what they
were), the applicant asked for the information on which these general ascertains were
based to reply meaningfully. At the heart of this is a KPMG report released in June
2025, which the applicant says it received only as an executive summary, not the full
report. With the accreditation already expired
5 and the applicant having no opportunity
to access the information needed to respond, there is no substantial redress in due
course, and the applicant, if successful, would need an interim arrangement pending
whatever actions it needs to take in Part B.
The merits
[15] Regulation 15B(3) provides that, in considering an application for accreditation,
the Council may take into account information derived from whatever source only if
such information is disclosed to the applicant and the applicant is given a reasonable
opportunity to respond thereto.
[16] Regulation 15B(4) requires the Council, after considering an application, either
to grant it if satisfied that the relevant criteria are met, or to refuse it with reasons.
Regulation 15B(5) provides that, if accreditation is granted, it is granted for twenty-four
months and must be accompanied by a certificate clearly specifying the expiry date.
[17] Regulation 15B(7) provides that a person wishing to renew accreditation must
apply for renewal at least three months before the date of expiry, and must furnish the
Council with such information as the Council may require.
[18] The structure thus envisions a timely application to ensure that the Council will
use the period before expiry to request further information, enabling it to decide the
accreditation lapses. Hence, the three-month requirement. Otherwise, an MHCO
could find itself in a legal vacuum, with its accreditation expiring before the Council
decides on the renewal application.
decides on the renewal application.
5 It should be noted that the applicant did try and enroll the matter on the previous week’s urgent roll before the
expiration of the accreditation, but on severe truncated t imeframes, which enrollment was not allowed, and they
were advised to enroll it on the normal “Thursday for Tuesday” urgent roll. This, of course, added an extra layer of
complication to the matter in that by the time the matter was heard, the accreditation expired.
6
[19] Yet this is exactly the position the applicant finds itself in. Its accreditation
expired by efflux of time on 25 April 2026, and Council would only thereafter decide
whether renewal should be granted, perhaps with retrospective or backdated effect if
it is renewed. This is not a clean approach and will result in a period during which the
MHCO is no longer accredited, but is expected to await a decision on whether it has
been accredited after all.
[20] This regulatory vacuum is not contemplated in Regulation 15B, where, on a
purposive reading of the regulation, an MCHO must apply timeously for renewal to
enable Council to do what it needs to do and make a timeous decision before the
expiration of the accreditation.
[21] This the respondent did not do. Instead, it stated that a decision would be made
only after the accreditation expired. Moreover, the respondent seeks to rely on adverse
material from a variety of sources, without providing the applicant with these
documents to reasonably meet the allegations.
[22] I have already indicated that I agree with the applicant that the 19 March 2026
letter was insufficient to meet the allegations. The applicant was forewarned that it
does not meet two of the three regulatory criteria. Still, many of the allegations were
framed broadly and abstractly, which would not enable a meaningful answer. The
applicant requested the specific documents it would need to do so.
[23] Regulation 15B(3) is clear on this. It states
(3) In considering an application for accreditation in terms of this regulation, the Council
may take into consideration any other information regarding the applicant, derived from
whatever source, if such information is disclosed to the applicant and she or he is given
a reasonable opportunity to respond thereto.
[24] The information that the Council relies on “derived from whatever source” must
be disclosed to the applicant. Not only the conclusions reached, but the premises on
be disclosed to the applicant. Not only the conclusions reached, but the premises on
which those conclusions were based. The respondent’s submission that the applicant
7
should have resorted to PAIA is thus unpersuasive, as the regulations themselves
place an obligation on the respondent to provide that information.
[25] The conclusion that I reached above should not be interpreted as a finding that
the concerns reflected in the letter or the report are unfounded. That is not before me,
and the conclusions reached by the respondent in its 19 March 2026 letter may be
well-founded. The point is simply that the applicant was entitled to confront them fairly
and to answer to them, before the consequences of the non-renewal took effect.
[26] As to the respondent’s argument that the applicant had to exhaust internal
remedies, that may be so in instances where there is a straightforward review of a
completed decision. Section 7(2)(c) of PAJA would then be an obstacle to the
applicant’s case. The present matter, however, is somewhat unique. At the time the
application was launched and argued, no final decision refusing renewal had been
made (although it was contemplated, based on the correspondence between the
parties in the preceding months). The argument in part A is that the respondent failed
to make a timely decision on the renewal of the application before its expiry and did
so without complying with Regulation 15B(3).
[27] On these facts, section 7(2) of PAJA does not, in my view, deprive me of the
power to grant purely interim, preservative relief. Internal remedies do not resolve the
immediate problem, as there is no decision to appeal before the harm resulting from
the non-renewal materialises.
[28] This does not undermine the internal appeal remedy. Once the respondent has
made a lawful decision after a fair process, the applicant will remain obliged to pursue
the internal remedy required by the Act. The present relief is therefore temporary and
preservative, and not meant to substitute the decision of the respondent.
[29] Which brings me to the next question of whether it is competent to preserve
[29] Which brings me to the next question of whether it is competent to preserve
accreditation that has lapsed. An analogous situation arose in Olifantsfontein
Resources Facility (Pty) Ltd v MEC: Gauteng Department of Agriculture, Rural
8
Development and Environment,6 where the Court granted urgent interim relief pending
review by authorising the applicant to conduct and perform all activities, exercise all
rights and carry out all obligations permitted in terms of an amended waste
management licence, notwithstanding an adverse administrative appeal decision that
had set the licence aside. The court did so as an interim, just and equitable
arrangement pending final determination of the review.
[30] While the factual situation differs, the principle provides guidance. The relief
need not be understood as this Court granting fresh accreditation in substitution for
the respondent’s statutory power. That would be improper. Rather, it is restorative and
preservative relief, directed at maintaining, for an interim period, the position that
existed before the respondent failed to decide timeously and in a procedurally
compliant manner, which created potentially irreversible consequences.
[31] As long as such relief is temporary and narrow, and preserves the respondent’s
power to make the substantive decision once a procedurally fair process has occurred,
such relief is competent.
7
[32] That then leaves the determination of whether the applicant is entitled to the
interim interdict.
8 The applicant has shown a prima facie right, grounded in Regulation
15B(3) and the broader right to procedurally fair administrative action. On the papers,
the loss of accreditation jeopardises the applicant’s existing contractual relationships,
its business continuity and the employment of its workforce. This harm is manifest.
The balance of convenience favours a limited order preserving the status quo. If no
interim relief is granted, the applicant may suffer irreversible commercial and
reputational harm before a lawful process is completed. The respondent remains the
substantive regulatory authority and remains free to determine the renewal application
after a fair process, which means it suffers less harm. Any concerns it may have
after a fair process, which means it suffers less harm. Any concerns it may have
regarding the beneficiaries' interests
9 can be addressed through other processes
under the regulations. The applicant did not have any alternative remedies at the time
6 [2026] ZAGPJHC 339.
7 In terms of PAJA section 8 and in terms of section 172(1)(b) of the Constitution, a court may make an order that
is just and equitable in constitutional matter, such as administrative actions by public institutions.
8 Webster v Mitchell 1948 (1) SA 1186 (W) at 1189.
9 Section 7(a) of the Act.
9
of the hearing and may appeal once a decision is properly made. The applicant thus
satisfied the requirements of an interdict.
[33] As to the relief, the applicant’s prayer that the Court “renew” the accreditation
is too intrusive of the respondent’s statutory function, even though the effect of the
order I will make is the same. Still, I would rather frame it as limited interim relief,
authorising the applicant, pending the defined further process, to conduct all activities,
exercise all rights, and carry out all obligations permitted under its accreditation as it
stood immediately before 25 April 2026. It is thus not a decision on entitlement to
renewal, nor does it make any finding on KPMG or related allegations, or on whether
the applicant complies with the renewal criteria. It merely preserves the applicant’s
position from being lost before the legality and fairness of the process can be
vindicated.
[34] The applicant sought costs on the attorney-and-client scale should they be
successful, on the basis that this is premised on the respondent having made a timely
decision. The time constraints of the urgent court do not allow me to go into detail on
the concerns I have regarding the applicant’s conduct over the course of the year, as
evidenced in the papers. The acrimony between the parties has no single source. The
matter is, however, sufficiently complex and involves weighty issues, warranting a
scale C cost order.
Order
[35] The following order is made:
1. The applicant’s non-compliance with the Uniform Rules of Court
relating to forms, service and time periods is condoned, and this
matter is heard as one of urgency in terms of Rule 6(12).
2. Pending the final determination of the relief sought in Part B of
this application and/or of any further timeously instituted judicial
review proceedings to be instituted by the applicant in respect of
the decision regarding the renewal of its accreditation as a
Managed Health Care Organisation in terms of Regulation 15B(7)
Managed Health Care Organisation in terms of Regulation 15B(7)
of the General Regulations promulgated in terms of the Medical
Schemes Act, 1998, under GNR 1262 of 20 October 1999, and/or
10
an appeal to the Appeals Board of the Council for Medical
Schemes against the respondent’s failure or refusal to renew the
applicant’s accreditation as an MHCO or at all, whichever comes
last, the applicant is authorised to conduct and perform all
activities, exercise all rights and carry out all obligations permitted
in terms of its accreditation as a Managed Health Care
Organisation as it stood immediately before 25 April 2026, subject
to the same terms and conditions that were applicable thereto.
3. Within 30 days of this order, the respondent shall provide the
applicant with the documents and information reasonably
necessary to enable the applicant to respond meaningfully to the
concerns and allegations set out in the respondent’s letter dated
19 March 2026, including, to the extent applicable, the categories
of material identified in prayer 3 of Part A of the notice of motion.
4. After providing the documentation referred to in paragraph 3
above, if a response is still required of the respondent, the
respondent shall afford the applicant a reasonable opportunity,
not exceeding three months, to provide its response to the
allegations contained in the Respondent’s letter dated 19 March.
5. The costs of Part A of this application, including those of two
counsel, shall be paid by the Respondent on Scale C.
_____________
WJ du Plessis
Judge of the High Court, Gauteng Division,
Johannesburg
Date of hearing:
28 April 2026
Date of judgment:
30 April 2026
For the applicant:
JPV McNally & PK Sila instructed by
Webber Wentzel Attorneys
For the respondent:
J Brett SC & D Matlatle instructed by
Mothle Jooma Sabdia