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[2014] ZAWCHC 173
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Genesis Medical Scheme v Chairperson of the Appeal Board of the Council for Medical Schemes and Others (15418/2013) [2014] ZAWCHC 173; [2015] 1 All SA 672 (WCC) (21 November 2014)
IN THE HIGH COURT
OF SOUTH AFRICA
(WESTERN CAPE
DIVISION, CAPE TOWN)
CASE
NO: 15418/2013
DATE:
21 NOVEMBER 2014
REPORTABLE
In the matter
between:
GENESIS MEDICAL
SCHEME
................................................
Applicant
And
THE CHAIRPERSON
OF THE APPEAL
BOARD OF THE
COUNCIL FOR
MEDICAL
SCHEMES
..................................................
First
Respondent
THE COUNCIL FOR
MEDICAL SCHEMES
..........
Second
Respondent
THE REGISTRAR OF
MEDICAL SCHEMES
..........
Third
Respondent
CHRISTIA
WOLLNER
..........................................
Fourth
Respondent
DONNA LESLIE LE
ROUX
......................................
Fifth
Respondent
WILLEM JOHANNES
SMIT
..................................
Sixth
Respondent
JUDGMENT: 21
November 2014
DAVIS J
Introduction
[1] This appeal
concerns whether the applicant was entitled to rely on the provisions
of s 48 of the Medical Schemes Act 131 of
1998 (‘the Act’)
when it lodged three separate appeals against decisions of the third
respondent which were taken in
terms of s 47 (2) of the Act in favour
of the fourth, fifth and sixth respondents.
[2] The application
concerns one crisp point. It is common cause, that if this court
finds in favour of the applicant, the decision
of the Appeal Board of
the Council for Medical Schemes (‘the Appeal Board’)
decision was materially influenced by an
error of law. It would
then follow that the applicant would be entitled to have the merits
of the appeals determined by the Appeal
Committee of the Council for
Medical Schemes (‘the Appeal Committee’) in terms of s 48
of the Act.
The background
[3] The fourth,
fifth and sixth respondents lodged separate complaints against the
applicant in terms of s 47 (1) of the Act. The
fourth and sixth
respondents complained that applicant had refused to pay the costs of
doctors in private practice for the treatment
of multiple sclerosis,
a prescribed minimum benefit condition included in the diagnosis and
treatment pairs listed in Annexure
A to the General Regulations made
under the Act (See GN R1262 in GG 20556 of 20 October 1999 as
amended). Fifth respondent complained
that applicant refused to pay
for certain medication prescribed by a doctor in private practice for
a treatment of her dependent’s
Crohn’s Disease which is
also a prescribed minimum benefit condition.
[4] The Registrar
acted in terms of s 47 (1) of the Act and requested the applicant to
furnish written comments on these complaints
within 30 days. On 19
January 2011, in the case of fourth respondent, 24 December 2010 in
the case of fifth respondent and 27
January 2011 in the case of sixth
respondent, the Registrar, acting in terms of s 47(2), determined the
complaints in favour of
fourth, fifth and sixth respondent. The
Registrar’s ruling in each case contained the following final
paragraph: ‘This
decision is binding… within 30 days of
the date of the decision hereof’.
[5] Applicant then
appealed against these decisions of the Registrar in terms of s 48 of
the Act. It did so on 18 April 2011, in
the case of fourth
respondent, on 10 March 2011 in the case of fifth respondent and 07
March 2011 in the case of sixth respondent,
that is more than 30 days
but less than three months after the rulings had been made by the
Registrar. At the hearing before the
Appeal Committee, a preliminary
point was raised that the appeal should have been lodged in terms of
s 49 of the Act; that is within
30 days from the date of the
Registrar’s ruling in terms of s 49 (1) of the Act. The Appeal
Committee upheld this objection
and therefore dismissed the appeals.
On a further appeal to the Appeal Board, the decision of the Appeal
Committee was upheld,
albeit for different reasons.
The applicant’s
case
[6] In order to
understand the case brought by the applicant, it is necessary to
reproduce the key provisions of the Act. Section
47 reads as
follows:
‘Complaints
(1) The Registrar
shall, where a written complaint in relation to any matter provided
for in this Act has been lodged with the Council,
furnish the party
complained against with full particulars of the complaint and request
such party to furnish the Registrar with
his or her written comments
thereon within 30 days or such further period as the Registrar may
allow.
(2) The Registrar
shall, as soon as possible after receipt of any comments furnished to
him or her as contemplated in subsection
(1), either resolve the
matter or submit the complaint together with such comments, if any,
to the Council, and the Council shall
thereupon take all such steps
as it may deem necessary to resolve the complaint.
Complaint is defined
in section 1 to mean:
‘a complaint
against any person required to be registered or accredited in terms
of this Act, or any person whose professional
activities are
regulated by this Act, and alleging that such person has-
(a) acted, or failed
to act, in contravention of this Act; or
(b) acted improperly
in relation to any matter which falls within the jurisdiction of the
Council’.’
Section 48 reads
thus:
’48 Appeal to
Council
(1) Any person who
is aggrieved by any decision relating to the settlement of a
complaint or dispute may appeal against such decision
to the Council.
(3) An appeal
contemplated in subsection (1) shall be in the form of an affidavit
directed to the Council and shall be furnished
to the Registrar not
later than three months, or such further period as the Council may,
for good cause shown, allow, after the
date on which the decision
concerned was made.’
[7] Mr Fagan, on
behalf of the applicant, submitted that s 47 clearly dealt with the
resolution of complaints as defined in section
1 of the Act. The
Shorter Oxford English dictionary (6 ed) includes amongst the
definition of resolve ‘solve (a problem)’
and ‘decide,
to determine (a doubtful point)’. If the Registrar, acting in
terms of s 47 (2), determined the complaint,
a person aggrieved by
his resolution of the complaint, could appeal against it in terms of
s 48 (1).
[8] To the extent
that there was any ambiguity with regard to the word ‘settlement’
as employed in s 48 (1) of the Act,
this was clarified by Schutz JA
in Consolidated Employees Medical Aid Society and others v Leveton
1999 (2) SA 32
(SCA) at 39 I:
‘Quite apart
from the express provision for finality in the rules, I consider that
the expression “the settlement”
in the Act indicates an
intention that a decision of a disputes committee shall be final as
between a member and the scheme and
its members.’
As s 48 (1) referred
to persons who are aggrieved by any decision relating to a
‘settlement of a complaint’, it followed,
in Mr Fagan’s
view, that in this case, the applicant, aggrieved by the decision of
the Registrar, had recourse to a right
of appeal pursuant to s 48 (1)
of the Act.
[9] To the extent
that the appeal board had relied on s 49 of the Act, it is necessary
to refer to the wording thereof:
‘Appeal
against decision of Registrar
(1) Any person who
is aggrieved by any decision of the Registrar under a power conferred
or a duty imposed upon him or her by or
under this Act, excluding a
decision that has been made with the concurrence of the Council, may
within 30 days after the date
on which such decision was given,
appeal against such decision to the Council and the Council may make
such order on the appeal
as it may deem just.
(2) The operation of
any decision which is the subject of an appeal under subsection (1)
shall be suspended pending the decision
of the Council on such
appeal.
(3) The Registrar or
any other person who lodges an appeal in terms of subsection (1) may
in person or through a representative
appear before the Council and
tender evidence or submit any argument or explanation to the Council
in support of the decision which
is the subject of the appeal.’
[10] Mr Fagan
contended that s 49 dealt with appeals against decisions of the
Registrar, other than those which had been taken by
the Registrar in
terms of s 47. As an example he cited the refusal by the Registrar
of a proposed rule amendment by a medical
scheme in terms of s 31 of
the Act. Mr Fagan also referred to s 49 (3) which provides that only
the Registrar and the person lodging
the appeal might appear before
the Council. It would mean that, as in the present appeal, the
applicant would not have been permitted
to so appear. This
interpretation would be incongruent with the principles of natural
justice. By contrast, s 49 (3) would make
sense where a dispute about
a rule amendment was raised, which is purely a matter between the
Registrar and the medical aid scheme
in question. No breach of
natural justice would then exist.
Second and third
respondent’s case
[11] Mr Breitenbach,
who appeared together with Ms Lapan on behalf of the second and third
respondents, contended that s 49 was
the operative section in dealing
with appeals of this nature. In the first place, s 49 (1) provide
for appeals by any person
who is aggrieved by any decision of the
Registrar under a power conferred or a duty imposed upon him or her
under the Act. This
meant that any decision by the Registrar,
including one taken pursuant to s 47 (2), fell within the plain
meaning of 49 under this
particular dispensation.
[12] In his view, s
47 contemplated two forms of dispute resolution mechanisms, namely
where the Registrar took it upon himself
or herself to resolve the
complaint and where the Registrar decided to submit the complaint
together with comments to the Council
whereby the latter body would
resolve the complaint. Where appeals are concerned, s 48 (1)
referred to the ‘what’;
that is the matter against which
the appeal was lodged. By contrast, s 49 (1) referred to the ‘who’,
that is the identity
of the body against whose decision the appeal
was lodged. As the appeal was against the decisions of the Registrar
in the present
case, s 49 (1) covered the appeal. In other words, s
49 provides for appeals against decisions of the Registrar aggrieved
by this
decision, and the appeal mechanism is set out in s 49.
[13] Mr Breitenbach
referred further to s 29 (1) (j) of the Act which provides as
follows:
‘(1) The
Registrar shall not register a medical scheme under s 24, and no
medical scheme shall carry on any business, unless
provision is made
in its rules for the following matters:
…
(j) The settlement
of any complaint or dispute.’
[14] In terms of
this section, Mr Breitenbach argued that medical schemes were obliged
to include in their rules a mechanism for
the settlement of any
complaint or dispute. In the event that an aggrieved party
complained to the appropriate mechanism within
the medical scheme and
was aggrieved by a decision which followed, the aggrieved party had
a right to appeal to the Council in
terms of s 48(1). In other
words, s 48 (1) catered expressly for appeals which flowed by way of
a decision through the internal
processes of the medical scheme
pursuant to the mechanism that had been set up in terms of s 29 (1)
(j) of the Act. That was
its primary purpose, whereas s 49 catered
for appeals which were based on the Registrars decision.
Evaluation
[15] This case turns
on the interpretation of three provisions of the Act in particular s
47, 48 and 49. It therefore raises the
question of the role of
statutory interpretation. Du Plessis Interpretation of Statutes at 57
has said about interpretation:
‘Language
allows access to the meaning of the enactment, but is a means not a
goal in itself and should never be identified
as the said meaning of
the enactment as such. The real meaning of an enactment may in fact
remain hidden to an interpreter who
adheres merely to “clear
language” or who qualifies this language – if it happens
not to be so clear –
without due cognisance of all the other
coequal structural elements which constitutes the overall context of
meaning in which
the enactment prevails’.
[16] This approach
is not dissimilar from what Wallis JA appeared to have in mind in his
exposition of the interpretation of statutes
in Natal Joint
Municipal Pension Fund v Endumeni Municipality
2012 (4) SA 593
(SCA)
at para 26. In respect of ambiguous language he said:
‘In resolving
the problem, the apparent purposes of the provision and the context
in which it occurs will be important guides
to the correct
interpretation. An interpretation will not be given that leads to
impractical, unbusinesslike or oppressive consequences
or that will
stultify the broader operation of the legislation or contract under
consideration.’
[17] It is precisely
because language does not inextricably contain a fixed or definitive
meaning that lawyers seek to persuade
courts to adopt a particular
meaning of words to be borne by way of a particular interpretation of
the choice of the words employed
in a particular provision of an
applicable statute. Notwithstanding the contested nature of
language, the expression employed
by the legislature is interpreted
by way of the provision read in context. This exercise then produces
an appropriate meaning
to the language so used. See Natal Joint
Municipal Pension Fund supra at para 25.
[18] While at a
preliminary stage of interpretation, recourse to a dictionary may
prove of assistance in ascertaining the ‘ordinary’
meaning of the words so employed, the complex structure of language
may require a more nuanced analysis. In a case such as the
present,
the nuance does need to extend into teleological terrain. Rather, an
interpretation which better makes sense of the architecture
of the
complaint and appeal procedures adopted by the legislature must be
preferred over one which generates greater anomalies,
is less
congruent with the basic principles of our legal system, albeit that
the plain words can carry this advocated meaning.
[19] Section 47 is
designed to deal with complaints as defined. It introduced a new
procedure which was never contained in the
earlier Act, that is the
Medical Schemes Act 72 of 1967. The Act introduced this mechanism
for complaints to be processed either
by the Registrar or the
Council. Section 48, on the plain language employed by the
legislature, informs the reader of its consequences.
Any person who
is aggrieved by a decision and who seeks to settle a complaint or a
dispute may appeal against this decision to
the Council. The plain
language indicates that, where a decision is made pursuant to s 47
(2), the aggrieved party has recourse
to an appeal to the Council in
terms of s 48.
[20] Mr Breitenbach
concedes that s 48 would apply to any decision relating to a
settlement of the complaint taken by a mechanism
set up in terms s 29
(1) (j) of the Act. Absent this mechanism, s 48 would be redundant.
It would be redundant because, if the
Council sought to settle the
compliant pursuant to a referral by the Registrar in s 47 (2), the
appeal against this decision of
the Council would be lodged under s
50, which provides for an appeal from the decision of the Council to
an Appeal Board.
[21] Expressed
differently, where the Registrar chooses not to settle the complaint
but refers it to the Council, an appeal against
the decision of the
latter body does not fall within the scope of s 48 but rather falls
to be disposed of in terms of s 50. If
Mr Breitenbach is correct, it
would mean that the only appeal which would fall within the scope of
s 48 would be those which are
heard by the Council from the internal
mechanism which is set up by the medical aid pursuant to s 29 (1)
(j).
[22] This
interpretation conflicts with the definition of ‘complaint’.
An internal body which seeks to settle a complaint
is a body which
forms part of a particular medical scheme. The complaint is lodged,
in effect, against a medical scheme. This
means that when a party
complains to the internal mechanism and is dissatisfied with the
decision taken by this internal body,
the complaint must now be
processed in terms of s 47 by the Registrar. In the event that the
Registrar takes upon himself or herself
to resolve this complaint, an
appeal from the attempt by the Registrar to resolve the complaint
falls within the scope of s 48.
This conclusion must follow from
the very idea of s 47, which envisages an external body, whether the
Council or the Registrar,
which must hear and resolve the complaints
which had been lodged against the medical scheme, whether taken by
the scheme or pursuant
to a decision of the latter’s internal
mechanism as set up in terms of s 29 (1)(j).
[23] This is not to
say that the words employed by the legislature may not be sufficient
to carry the weight of Mr Breitenbach’s
interpretation.
However, Mr Fagan’s interpretation gives full meaning to the
entire structure of s 48, which is to the effect
that all parties
affected by the resolution of a complaint are entitled to appear
before the Council. This consequence is not
provided for in terms
of s 49.
[24] This
interpretation gains further credence when the various decisions
taken by the Registrar, all of which are subject to s
49 appeal are
considered, including a s 21 appeal relates to the designation of
medical schemes, s 22 relating to the registration
of medical
schemes, s 33 relating to the approval and withdrawal of benefit
options, s 36 (1) relating to the approval of an audit
or an audit
committees, s 36 (9) which empowers a Registrar to appoint an audit
or, s 37 which requires a trustee of the scheme
to furnish financial
statements on a quarterly basis, s 39 involving the rejection of
returns by the Registrar, s 42, a requirement
of further particulars
and s 43 dealing with inspections and reports, whereby the Registrar
can make various decisions, including
some that hold fairly drastic
consequences for the scheme.
[25] All of these
decisions do not require the attendance of any other party, other
than the Registrar, if for example, a decision
is made which is
adverse to the Registrar. Viewed accordingly, this would explain why
only an affected party, such as the Registrar,
would be entitled to
participate in an appeal in terms of s 49.
[26] Further support
for this interpretation is to be found by reference to the earlier
Act, of 1967. As I indicated earlier,
the 1967 Act does not contain
any similar provisions to s 47 of the Act. It however provided for
an appeal against decisions
of the Registrar in terms of s 37. The
1967 Act contained no provision which empowered the Registrar to
resolve a complaint.
But section 49 of the Act is reproduced exactly
in the same format as s 37 of the 1967 Act. It provides for appeals
from a range
of decisions similar to those which I have set out
earlier in this judgment. It was only when the mechanism contained
in s 47
became law, that there was a necessity for a resolution of
disputes which flowed from s 47, by way of a specific appeal process
pursuant to s 48.
[27] It is
linguistically possible to argue that s 49 applies to all decisions
taken by the Registrar, including those which resolve
a complaint as
defined. The better and more coherent meaning, as I have set out
earlier, is however to be found by way of recourse
to the various
structural elements of the Act; that is the overall context in which
the meaning of the individual provisions is
to be understood.
[28] The
interpretation which I have given to ss 48 to 50 of the Act make it
clear that a complaint made by a member of the medical
scheme
concerning a decision of a functionary not to pay a certain benefit,
which is lodged with the internal complaints resolution
committee of
the scheme, does not constitute a complaint against the scheme
itself. This internal complaints resolution committee
forms part of
the scheme itself. Only when a decision is taken by this complaints
resolution committee which is adverse to the
member can the member
lodge a complaint against the scheme, as opposed to a complaint
within the scheme itself; until then the
procedures involves an
appeal against a decision of one section of the scheme to another,
similarly situated; that is to the internal
mechanism created in
terms of s 29 (1) (j) of the Act.
[29] Once an
analysis is undertaken of all of the relevant sections, it becomes
clear that s 47 empowers the Registrar to resolve
a complaint. That
complaint is a complaint against the medical scheme as opposed to its
internal institutions. The appeal against
this complaint must now be
lodged in terms of s 48. Similarly, where the Registrar refers the
complaint to the Council, which,
in turn, resolves the complaint, an
appeal is lodged to the Appeal Board against the decision of the
Council in terms of s 50 of
the Act.
[30] This
interpretation gives a meaning and a coherence to all of the relevant
sections of the Act. By contrast, were Mr Breitenbach’s
interpretation to be correct, the only complaint which would be the
subject of the appeal in terms of s 48 would be an appeal against
the
decision of an internal body of a medical scheme. But this appeal
does not trigger off an automatic application of s 48.
It triggers
a complaints procedure pursuant to s 47. In the manner in which I
have sought to interpret the relevant provisions,
s 48, 49 and 50,
all are given a meaning which promotes the integrity of the entire
complaints design of the Act.
Conclusion
[31] For these
reasons the application is upheld. The following order is made.
1. The ruling of the
Appeal Board of the Council for Medical Schemes (the Appeal Board)
handed down on 26 July 2013 in which the
Appeal Board dismissed the
applicant’s appeal against the ruling of the Appeal Committee
of the Council for Medical Schemes
handed down on 20 September 2001
is reviewed and set aside.
2. The ruling of the
appeal body is substituted by way of the following decision:
“The appeal is
upheld.”
3. The matter is
referred back to the Appeal Committee for consideration and
determination of the merits of the appeals of the applicant
regarding
the merits of the complaints of fourth, fifth and sixth respondents.
4. The costs of this
application are to be borne by second and third respondents jointly
and severally.
DAVIS J
I agree
ENGERS AJ