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[2026] ZAGPPHC 658
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Registrar of Medical Schemes v Council for Medical Schemes and Others (2024-006593) [2026] ZAGPPHC 658 (15 June 2026)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case
Number:
2024-006593
(1)
REPORTABLE:
YES
/NO
(2)
OF INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED:
YES
/NO
DATE
15/6/2026
SIGNATURE
In
the matter between:
REGISTRAR
OF MEDICAL SCHEMES
Applicant
and
COUNCIL
FOR MEDICAL SCHEMES
First Respondent
SOUTH
AFRICAN POLICE SERVICE MEDICAL
Second Respondent
SCHEME
(POLMED)
MINISTER
OF HEALTH
Third Respondent
JUDGMENT
MBONGWE,
J:
INTRODUCTION
[1]
This matter concerns a review brought by the Registrar of Medical
Schemes (“the Registrar”)
seeking to set aside the ruling
of the Appeal Committee of the Council for Medical Schemes (“CMS”)
dated 7 February
2023, alternatively 11 May 2023. The Appeal
Committee held that the Registrar’s invocation of section 43 of
the Medical Schemes
Act 131 of 1998 (“MSA”) deprived
Polmed of its rights under section 47 of the Act, and that complaints
must be dealt
with strictly in accordance with section 47.
[2]
The Registrar challenges the ruling on the basis of legality and
common law review. Polmed,
supported by the CMS, opposes the
application, contending inter alia that the Registrar lacks locus
standi, that the application
is fatally delayed, moot, and
procedurally defective.
FACTUAL
BACKGROUND
[3]
Following Polmed’s Annual General Meeting in September 2021, a
complaint was lodged
by Mr Gous alleging governance irregularities.
The Registrar, instead of processing the complaint under section 47,
invoked section
43 and addressed enquiries to Polmed. Polmed
responded but later objected, contending that section 43 was ultra
vires.
[4]
Polmed appealed under section 49(1). The Appeal Committee upheld the
appeal, directing
that complaints must be processed under section 47.
The Registrar subsequently complied with the ruling, processed the
complaint
under section 47, and dismissed it. That dismissal was
upheld on appeal in November 2024.
ISSUES
[5]
The following issues arise:
a)
Whether the Registrar has locus standi to challenge the ruling of the
Appeal Committee;
b)
Whether the application is fatally delayed;
c)
Whether the matter is moot or perempted;
d)
Whether internal remedies were exhausted;
e)
Whether the Registrar’s reliance on legality/common law review
is correct;
f)
Whether section 43 may lawfully be invoked to process complaints.
LOCUS
STANDI
[6]
Section 18(3) of the MSA obliges the Registrar to act in accordance
with the provisions
of the Act and the directions of the CMS. The
Registrar is the executive officer of the CMS, not an adversary.
[7]
In
Registrar
of Pension Funds v Howie NO
,
[1]
the Court held that a registrar cannot adopt an adversarial position
against an appeal tribunal, as this undermines public confidence
and
upsets statutory design. The principle was reaffirmed in
MEC
for Transport v Transport Appeal Tribunal
[2]
and
Ombud
for Financial Services Providers v Harms NO
.
[3]
[8]
Applying these authorities, the Registrar lacks locus standi to
challenge the Appeal Committee’s
ruling. His role is regulatory
and impartial, not adversarial.
DELAY
[9]
The ruling was delivered on 7 February 2023. The Registrar instituted
review proceedings
almost a year later, without explanation.
[10]
In
Buffalo
City Metropolitan Municipality v ASLA Construction,
[4]
the Constitutional Court held that unexplained delay renders a review
unreasonable. Similarly, in
Altech
Radio Holdings v Tshwane City
,
[5]
legality reviews must be brought without undue delay.
[11]
The Registrar’s unexplained delay is
unreasonable and fatal.
MOOTNESS
AND PEREMPTION
[12]
The Registrar complied with the ruling, processed the complaint under
section 47, and dismissed it. That
dismissal was upheld on appeal.
The relief sought is therefore academic. Courts do not issue advisory
opinions on abstract disputes
.
[6]
[13]
By complying with the ruling, the Registrar acquiesced. The doctrine
of per emption, explained in
Hlatshwayo
v Mare & Deas
[7]
and reaffirmed in
SARS
v CCMA
[8]
prevents a litigant from approbating and reprobating. The Registrar,
having abided by the ruling, cannot now contest it.
FAILURE
TO EXHAUST REMEDIES
[14]
Section 50 of the MSA provides an internal appeal mechanism. The
Registrar did not pursue this remedy. In
Koyabe
v Minister of Home Affairs
[9]
the Court emphasised that internal remedies must be exhausted before
approaching court.
[15]
The Registrar’s failure to exhaust remedies
further undermines the application.
REVIEW
PATHWAY
[16]
The Registrar deliberately avoided PAJA, invoking legality/common law
review. Yet PAJA is the primary pathway
for administrative reviews.
In
Genesis
Medical Scheme v Ngalwana
[10]
,
the Court held that the Registrar cannot bypass PAJA to avoid its
requirements.
[17]
The application is procedurally defective.
SECTION
43 vs SECTION 47
[18]
The Registrar argues that section 43 empowers him to investigate “any
matter” connected with
a scheme’s business, including
complaints. He likens section 43 enquiries to section 44 inspections,
which are investigative
and not appealable.
[11]
[19]
Polmed counters that section 47 is peremptory for complaints,
affording procedural safeguards.
The Appeal Committee agreed.
[20]
While section 43 is broad, its purpose is investigative, not
adjudicative. Section 47 specifically governs
complaints, ensuring
audi alteram partem. To allow section 43 to supplant section 47 would
undermine statutory safeguards. The
Appeal Committee’s
interpretation is correct.
CONCLUSION
[21]
The Registrar lacks locus standi, delayed unreasonably, failed to
exhaust remedies, and rendered the matter
moot by complying with the
ruling. Even on the merits, section 47 governs complaints, not
section 43.
ORDER
The
application is dismissed.
The
Applicant is ordered to pay the costs of the Second Respondent,
including the costs of two counsel.
MPN
MBONGWE
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION
PRETORIA
APPEARANCES
For the Applicants:
M RIP (SC)
With:
MATLATLE
Instructed by:
For the First
Respondent:
JH DREYER (SC)
With:
JW SCHABORT
Instructed by:
Date of Hearing:
07 May 2026
Date of
Judgment:
15 June 2026
THIS
JUDGMENT WAS ELECTRONICALLY TRANSMITTED TO THE PARTIES’ LEGAL
REPRESENTATIVES AND UPLOADED ONTO CASELINES ON 15 JUNE
2026.
[1]
[2016]
1 All SA 694 (SCA).
[2]
[2016]
ZAKZPHC 90.
[3]
[2017]
ZAGPPHC 812.
[4]
2019
(4) SA 331 (CC).
[5]
2021
(3) SA 25 (SCA).
[6]
Legal
Aid SA v Magidiwana
2015
(2) SA 568
(SCA).
[7]
1912
AD 242.
[8]
2017
(1) SA 549 (CC).
[9]
2010
(4) SA 327 (CC).
[10]
NO
[2013] ZAGPPHC 546.
[11]
Bonitas
Medical Fund v CMS
[2016] 4 All SA 684
(SCA).