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[2015] ZAWCHC 124
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Genesis Medical Scheme v Minister of Health; In re: Medi-Clinic Southern Africa (Pty) Ltd and Others v Treatment Action Campaign NPC and Others (15268/14) [2015] ZAWCHC 124; [2015] 4 All SA 302 (WCC) (29 July 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
CASE
NO: 15268/14
DATE:
29 JULY 2015
In
the matter between:
GENESIS
MEDICAL
SCHEME
.............................................................................................
Applicant
And
THE
MINISTER OF
HEALTH
............................................................................................
Respondent
And
MEDI-CLINIC
SOUTHERN AFRICA (PTY) LTD
................................
First
applicant to intervene
HOSPITAL
ASSOCIATION OF SOUTH AFRICA
.............................
Second
applicant to intervene
THE
COUNCIL FOR MEDICAL
SCHEMES
.......................................
Third
applicant to intervene
THE
REGISTRAR OF MEDICAL SCHEMES
...................................
Fourth
applicant to intervene
B
BRAUN AVITUM (PTY)
LTD
................................................................
Fifth
applicant to intervene
MULTIPLE
SCLEROSIS SOCIETY OF
SOUTH
AFRICA
........................................................................................
Sixth
applicant to intervene
INFERTILITY
AWARENESS ASSOCIATION
OF
SOUTH
AFRICA
.............................................................................
Seventh
applicant to intervene
THE
SOUTH AFRICAN PRIVATE
PRACTITIONERS
FORUM
..................................................................
Eighth
applicant to intervene
PETER
FRANCOIS
COLIN
....................................................................
Ninth
applicant to intervene
And
TREATMENT
ACTION CAMPAIGN NPC
.............
First
applicant for admission as amicus curiae
THE
SOUTH AFRICAN DEPRESSION
AND
ANXIETY GROUP
........................................
Second
applicant for admission as amicus curiae
PEOPLE
LIVING WITH CANCER
.......................
Third
applicant for admission as amicus curiae
JUDGMENT
DELIVERED
ON 29 JULY 2015
BLIGNAULT
J
[1] This judgment
deals with a number of applications brought by various parties for
leave to intervene in pending review proceedings
in which an order is
sought that Regulation 8 made under the Medical Schemes Act 131 of
1998 (‘the
Medical Schemes Act&rsquo
;) be reviewed and set
aside. I shall refer to the review proceedings as the main
application.
[2] Applicant in the
main application is Genesis Medical Scheme (‘Genesis’), a
medical scheme registered in terms of
section 24
of the
Medical
Schemes Act having
its registered office at 4
th
Floor, The
Terraces, Black River Park, Fir Street, Observatory, Cape Town.
[3] Respondent in
the main application is the Minister of Health, c/o The State
Attorney, Cape Town. He has the power and
duty to make
regulations in terms of the
Medical Schemes Act. He
does not
oppose or support the main application and he abides the decision of
the court.
[4] Genesis seeks
the following relief in the main application: An order
reviewing and setting aside
Regulation 8
of the regulations made in
terms of the
Medical Schemes Act, published
by the Minister of Health
in Government Notice R.1262 in Government Gazette
11677
of 20
October 1999 and amended by Government Notice R1360 published in
Government Gazette 24007 of 4 November 2002.
[5] A number of
parties applied for leave to intervene in the main application in
order to oppose it. The first applicant
to intervene was
Medi-Clinic Southern Africa (Pty) Ltd but it withdrew its
application. The second applicant to intervene
is the Hospital
Association of South Africa. Its application is opposed by
Genesis. The third and fourth applicants
to intervene are The
Council for Medical Schemes and The Registrar of Medical Schemes.
Genesis does not oppose their applications.
[6] Fifth applicant
to intervene is B Braun Avitum (Pty) Ltd. Sixth applicant to
intervene is the Multiple Sclerosis Society
of South Africa, seventh
applicant to intervene is the Infertility Awareness Association of
South Africa, eighth applicant to intervene
is The South African
Private Practitioners Forum and the ninth applicant to intervene is
Peter Francois Colin. Their applications
to intervene are
opposed by Genesis.
[7] The Treatment
Action Campaign NPC, the South African Depression and Anxiety Group
and People Living with Cancer apply to be
admitted as
amici
curiae.
Their applications are not opposed.
[8] Genesis’
founding affidavit was deposed to by Mr Dennis Van der Merwe, its
principal officer. Genesis’ first
main contention is that
Regulation 8
is
ultra vires
in that it is in conflict with and
extends beyond what is contemplated by sub-sections 29(1)(o) and (p)
and sub-section 67(1) of
the
Medical Schemes Act. Its
second
main contention is that
Regulation 8
is not rationally connected to
the purpose for which it was made. Genesis’ challenge to
the validity of
Regulation 8
, he says, is based on the principles of
legality, rationality and the rule of law.
[9] Mr Van Der Merwe
claims that Genesis has standing in the main application. As a
registered medical scheme it is subject to the
Medical Schemes Act
and
the regulations made thereunder. Genesis is therefore
directly affected by
Regulation 8
which deals with ‘
Prescribed
Minimum Benefits’
(PMBs).
Regulation 8
impacts
materially on the benefits that Genesis is required to pay and the
scheme rules that Genesis must have registered.
Genesis therefore brings this application, in the first instance, in
its own interest.
In addition, Genesis
also brings this application in the public interest. It is not
in the interests of the public for there
to be an ultra vires,
unlawful and irrational regulation in force, and more particularly
one which has a deleterious effect on
the viability of medical
schemes.’
The statutory
framework
[10] Mr Van der
Merwe describes the statutory framework.
Regulation 8
bears the
heading ‘
prescribed minimum benefits’
. He
submits that certain provisions of the
Medical Schemes Act are
particularly relevant. Sub-section 29(1) precludes any medical
scheme from carrying on business unless provision is made
in its
rules for the matters listed in paragraphs (a) to (u) of that
sub-section. Paragraphs 29(1)(o) and 29(1)(p) read as
follows:
‘
(o)
The scope and level of minimum benefits that are to be available to
beneficiaries as may be prescribed
[by
regulation]
.
(p)
No limitation shall apply to the reimbursement of any relevant health
service obtained by a member from a public hospital where
this
service complies with the general scope and level as contemplated in
paragraph (o) and may not be different from the entitlement
in terms
of a service available to a public hospital patient.’
[11]
In terms of paragraphs (g) and (q) of sub-section 67(1) of the
Medical Schemes Act the
Minister is empowered to make regulations
with regard to the following matters:
‘
67
Regulations
(1)
The Minister may, after consultation with the Council, make
regulations relating to -
… …
(g)
the prescribed scope and level of minimum benefits to which members
and their registered dependants shall be entitled to under
the rules
of a medical scheme;
… …
(q)
all other matters which he or she considers necessary or expedient to
prescribe in order that the purposes of this Act may be
achieved.’
[12]
The Minister made Regulation 8 in terms of
section 67(1)(g)
or
67
(1)(q) of the
Medical Schemes Act. It
must be read with the
definitions contained in
Regulation 7.
They read as follows:
7
Definitions
For
the purposes of this chapter-
'designated
service provider' means a health care provider or group of providers
selected by the medical scheme concerned as the
preferred provider or
providers to provide to its members diagnosis, treatment and care in
respect of one or more prescribed minimum
benefit conditions;
'emergency
medical condition' means the sudden and, at the time, unexpected
onset of a health condition that requires immediate
medical or
surgical treatment, where failure to provide medical or surgical
treatment would result in serious impairment to bodily
functions or
serious dysfunction of a body organ or part, or would place the
person's life in serious jeopardy;
'prescribed
minimum benefits' means the benefits contemplated in section 29(1)(o)
of the Act, and consist of the provision of the
diagnosis, treatment
and care costs of-
(a)
the Diagnosis and Treatment Pairs listed in Annexure A, subject to
any limitations specified in Annexure A; and
(b)
any emergency medical condition;
'prescribed
minimum benefit condition' means a condition contemplated in the
Diagnosis and Treatment Pairs listed in Annexure A
or any emergency
medical condition.’
[13] Regulation 8
reads as follows:
‘
8
Prescribed Minimum Benefits
(1) Subject to
the provisions of this regulation, any benefit option that is offered
by a medical scheme must pay in full, without
co-payment or the use
of deductibles, the diagnosis, treatment and care costs of the
prescribed minimum benefit conditions.
(2) Subject to
section 29(1)(p) of the Act, the rules of a medical scheme may, in
respect of any benefit option, provide that-
(a) the
diagnosis, treatment and care costs of a prescribed minimum benefit
condition will only be paid in full by the medical scheme
if those
services are obtained from a designated service provider in respect
of that condition; and
(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 dependant obtains 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.
(3) For the
purposes of subregulation (2)(b), a beneficiary will be deemed to
have involuntarily obtained a service from a provider
other than a
designated service provider, if-
(a) the service
was not available from the designated service provider or would not
be provided without unreasonable delay;
(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) there was no
designated service provider within reasonable proximity to the
beneficiary's ordinary place of business or personal
residence.
(4) Subject to
subregulations (5) and (6) and to section 29(1)(p) of the Act, these
Regulations must not be construed to prevent
medical schemes from
employing appropriate interventions aimed at improving the efficiency
and effectiveness of health care provision,
including such techniques
as requirements for pre-authorisation, the application of treatment
protocols, and the use of formularies.
(5) When a
formulary includes a drug that is clinically appropriate and
effective for the treatment of a prescribed minimum benefit
condition
suffered by a beneficiary, and that beneficiary knowingly declines
the formulary drug and opts to use another drug instead,
the scheme
may impose a co-payment on the relevant member.
(6) A medical
scheme may not prohibit, or enter into an arrangement or contract
that prohibits, the initiation of an appropriate
intervention by a
health care provider prior to receiving authorisation from the
medical scheme or any other party, in respect
of an emergency medical
condition.’
[14] Annexure A to
Regulation 8 lists a large number of prescribed minimum benefits.
The list is preceded by the following
Explanatory Note:
‘
The
objective of specifying a set of Prescribed Minimum Benefits within
these Regulations is two-fold:
(i) To
avoid incidents where individuals lose their medical scheme cover in
the event of serious illness and the consequent
risk of unfunded
utilisation of public hospitals.
(ii) To
encourage improved efficiency in the allocation of Private and Public
health care resources.
The
Department of Health recognises that there is constant change in
medical practice and available medical technology. It is also
aware
that this form of regulation is new in South Africa. Consequently,
the Department shall monitor the impact, effectiveness
and
appropriateness of the Prescribed Minimum Benefits provisions. A
review shall be conducted at least every two years by the
Department
that will involve the Council for Medical Schemes, stakeholders,
Provincial health departments and consumer representatives.
In
addition, the review will focus specifically on development of
protocols for the medical management of HIV/AIDS. These reviews
shall
provide recommendations for the revision of the Regulations and
Annexure A on the basis of:
(I)
inconsistencies or flaws in the current regulations;
(ii)
the cost-effectiveness of health technologies or interventions;
(iii)
consistency with developments in health policy; and
(iv)
the impact on medical scheme viability and its affordability to
Members.’
[15] For
illustrative purposes I quote the description of two prescribed
minimum benefits:
Categories
(Diagnosis and Treatment Pairs) constituting the Prescribed Minimum
Benefits Package under
section 29(1)(o)
of the
Medical Schemes Act
(listed
by Organ-System chapter)
Brain
and nervous system
CODE:
906A
DIAGNOSIS:
ACUTE GENERALISED PARALYSIS, INCLUDING POLIO AND GUILLAIN-BARRE
TREATMENT:
MEDICAL MANAGEMENT; VENTILATION AND PLASMAPHERESIS
CODE:
341A
DIAGNOSIS:
BASAL GANGLIA, EXTRA-PYRAMIDAL DISORDERS; OTHER DYSTONIAS NOS
TREATMENT:
INITIAL DIAGNOSIS; INITIATION OF MEDICAL MANAGEMENT’
[16] Mr Van der
Merwe provides a short description of the nature of medical schemes.
A medical scheme is a non-profit organisation
that is owned by its
members. The essential element of its business is to pay for
healthcare services provided to its members
by healthcare providers
in return for the payment of a premium or contribution.
[17] Medical schemes
typically offer members and prospective members a choice of benefits
to suit a member’s particular healthcare
needs. There is
a correlation between the benefits offered and the contribution
asked. The
Medical Schemes Act compels
every medical scheme to
balance its risk. This means that it must levy members a
monthly contribution that is sufficient
to meet likely claims,
maintain sufficient reserves and ensure that the medical scheme is
financially sound at all times.
It is essential that medical
schemes should be able to limit benefits.
[18]
Mr Van der Merwe submits that
section 21(1)(p)
of the
Medical Schemes
Act is
ungrammatical and vague. He explains his view of the proper
interpretation of
section 29(1)(p):
‘
Based
on the first part of the paragraph, it would appear at first glance
there are two potential options in this regard:
it could be the
“reimbursement” or the “service” that “may
not be different” from the entitlement
in terms of a service
available to a public-hospital patient. However, on closer
analysis, it is clear that what must have
been intended by the
legislature was for the word “service” to be the subject
of the last portion of the paragraph.
In other words, the
latter portion of
section 29(1)(p)
merely indicates that the scheme’s
obligation to provide full reimbursement for PMBs obtained from
public hospitals relates
to services which are no different from, and
thus no more or no less than, he sort of services which public
hospitals provide to
their ordinary patients.’
[19] That
interpretation, he says, would not detract from the first part of
section 29(1)(p)
, which appears to limit a medical scheme’s
obligation to provide reimbursement for PMBs to those instances where
the service
is obtained from a public hospital. When read in
that way,
section 29(1)(p)
also protects both the members and the
medical schemes: The member is protected by ensuring that he or
she is entitled to
ordinary public-hospital care at full
reimbursement which the scheme is protected by not having to provide
full reimbursement where
the member, because of his or her
medical-aid membership, receives a more extensive service than would
have been provided to any
ordinary public-hospital patient.
[20] Mr Van der
Merwe argues that a medical scheme is only required to provide
reimbursement in full for a service falling within
the prescribed
scope and level of minimum benefits where (i) the service is provided
by a public hospital; and (ii) such service
corresponds with (ie is
not more extensive than) the service which such hospital provides to
its ordinary public-hospital patients.
He submits further that
Genesis’ interpretation is consistent with
sections 67(1)(g)
,
29A
(2) and (3) of the
Medical Schemes Act.
[21
] According to Mr
Van der Merwe Regulation 8 and
sections 29(1)(o)
and (p) of the
Medical Schemes Act are
accordingly incompatible.
Regulation 8
also exceeds what is permitted by
section 67(1).
[22] The purposes of
the
Medical Schemes Act, he
says, are undermined by regulations which
result in potentially ruinous expenses for medical schemes, thereby
threatening their
very existence. The option of increasing
contributions to match the cost of PMBs is not generally available to
medical schemes.
First, there is the difficulty of
unpredictability. Secondly, contributions would in all
probability have to be increased
to such an extent that even fewer
people than at present would be able to afford membership of a
medical scheme. Thirdly,
experience shows that the Registrar
will not allow schemes to increase their contribution rates
significantly. Far from being
‘
necessary or
expedient’,
Regulation 8
thus impedes the implementation of
the objectives and provisions of the
Medical Schemes Act.
[23
] Mr Van der
Merwe contends that
section 33(2)
of the
Medical Schemes Act is
a
further indication that
Regulation 8
is the
ultra vires
.
The Registrar is precluded by that subsection from approving any
benefit option submitted to him for his approval by a medical
scheme
unless the Council for Medical Schemes (‘CMS’) is
satisfied, amongst other things, that the option (a) includes
the
prescribed benefits, (b) will be self-supporting in terms of
financial performance, (c) is financially sound, and (d) will
not
jeopardise the financial soundness of any existing benefit option
within the scheme.
[24] In terms of
Regulation 8
as presently worded, PMBs have at least two distinct
characteristics. They are unpredictable on the basis of past
experience,
and therefore extremely difficult to factor in to an
option’s actuarial projections of the contributions that will
be required
to cover benefits payable in the ensuing year. They
are potentially ruinously expensive in the light of the fact that
regulation 8
requires medical schemes to pay without limitation for
the treatment of PMB conditions.
[25] In conclusion
Mr Van der Merwe summarises Genesis’ contentions. It was
beyond the power of the Minister to make
regulations requiring
medical schemes to reimburse members in respect of services obtained
from providers other than public hospitals.
It was also beyond
the power of the Minister to make regulations requiring schemes to
provide reimbursement in an amount exceeding
the actual cost of
obtaining the service in question from the public hospital
concerned. It was also beyond the power of
the Minister to
impose effectively unlimited reimbursement obligations on medical
schemes, inasmuch as even the obligation of full
reimbursement in a
public hospital is only applicable where the service is not more
extensive than the service ordinarily provided
by the hospital in
question to its public-hospital patients.
Second
applicant to intervene
[26] Second
applicant to intervene is the Hospital Association of South Africa
(‘HASA’). It was previously an
association not for
gain, incorporated and registered as such under section 21 of the
Companies Act 61 of 1973. HASA is now,
by reason of item
4(1)(a) of transitional arrangements forming part of Schedule 5 to
the 2008 Companies Act, deemed to be a non-profit
company, as that
term is defined in section 1 of the 2008 Companies Act.
[27]
HASA’s founding affidavit was deposed to by its chief executive
officer, Mr Dumisani Sizwe Bomela. He contends
at the outset
that HASA seeks leave to intervene to oppose the main application for
the following reasons. HASA represents
its members and, as
such, has a direct and substantial legal interest in the subject
matter of the review application. The
interests of each of the
members of HASA may be prejudicially affected by the judgment of the
court in the review application,
HASA has
prima
facie
grounds for opposing the review
application and its application is not frivolous or vexatious and is
seriously made.
[28] Mr Bomela
describes HASA’s direct and substantial interest in the subject
matter of the main application. HASA,
he explains, is a
voluntary association which has as its members a number of private
hospital groups and private hospitals operating
within South Africa.
It is an umbrella body which represents the vast majority of South
Africa’s private hospitals.
It acts on behalf of its
members, but does not do so to the exclusion of its members who will
themselves often participate individually
and to the extent of a
particular interest that they may have in any issue in respect of
which HASA acts.
[29] HASA’s
212 members constitute more than 80% of South Africa’s private
hospitals by bed numbers. The objects
and purposes of HASA
include to assist the private hospital industry in expanding access
to healthcare and preserving the quality
of healthcare services.
It seeks to do so by facilitating collaboration between private
hospitals and government, other local
and international healthcare
stakeholders, the media and public. HASA represents its members
inter alia
in engaging with regulatory bodies and stakeholders
in the formulation of regulations and legislation governing the
provision of
healthcare services generally and private hospitals in
particular. HASA represents its members in respect of legal and
social
policy and those areas of policy as agreed to from time to
time by its members.
[30] Insofar as the
members of HASA provide services to a member of a medical scheme or
his or her dependants, the payment for such
a service or for such
services must be effected within the terms of the
Medical Schemes
Act. In
a number of instances the members of HASA contract
directly with medical schemes, in a manner permitted under the
Medical Schemes Act and
the Regulations (including as designated
service providers), in terms of which the prices at which services
are provided by HASA’s
members to medical schemes are agreed
between those members and the medical scheme concerned. These
prices would apply irrespective
of whether or not a service is
provided that falls under the rubric of PMBs or not.
[31] There are no
tariffs imposed on the costs of PMBs in the private healthcare sector
and heathcare providers are fully reimbursed
by medical schemes for
the costs of APMBs that are provided to the beneficiaries of the
medical schemes. Accordingly, the
members of HASA are fully
reimbursed by medical schemes for the PMBs that are provided to the
beneficiaries of the medical schemes.
This reimbursement arises
from the operation and application of
Regulation 8.
[32] Mr Bomela
submits that should Genesis succeed in the review application, and
should the court set aside
Regulation 8
, the interests of each of the
members of HASA shall be affected, as the members of HASA will no
longer be fully reimbursed by medical
schemes for the PMBs provided
to beneficiaries of the medical schemes. The members of HASA
will subsequently be reimbursed
for PMBs by medical schemes in
accordance with a tariff determined unilaterally at the discretion of
the medical scheme concerned.
Therefore, any contracts that
members of HASA have with medical schemes for the provision of PMBs
shall be negatively affected
by the imposition of a tariff by each
medical scheme. This is so because the members of HASA shall no
longer be fully reimbursed
for the provision of PMBs to beneficiaries
of the medical schemes in accordance with
Regulation 8.
[33] He argues, in
short, that the members of HASA shall be reimbursed for PMBs in
accordance with a tariff determined at the discretion
of each medical
scheme. This will in turn be dependent upon the benefit option
of the beneficiary of that medical scheme.
The result would be,
for example, that in the case of an emergency admission to a private
hospital arising from a motor vehicle
accident, the member of HASA
who admits that patient will be faced with the uncertainty of not
knowing if the medical scheme will
meet the costs of that admission
and, if so, what the extent of that reimbursement will be. It
will not know if a co-payment
is required or a deductible, under the
rules of the medical scheme concerned. It may be forced to
either limit access to
its private hospital or, more likely, to admit
at risk to itself of not being able to recover the expenses and
costs. This
will almost certainly limit or curtail access to
healthcare services on the part of members of the public.
[34] In light of the
above, the imposition of a tariff by a medical scheme on healthcare
providers for the provision of PMBs will
be materially prejudicial to
the interest of the members of HASA and to the public generally and
members and beneficiaries of medical
schemes.
[35] It follows that
any application that concerns the proper interpretation and
application of the provisions of the
Medical Schemes Act and
Regulation 8
has a direct bearing on the nature of the business
activities conducted by each of the members of HASA. Those
members would
themselves have a direct and substantial interest in
the outcome of the main application. As the mandated
representative
of its members HASA itself has a direct and
substantial interest in the relief sought in such an application.
Third and
fourth applicants to intervene
[36] Third applicant
to intervene is the Council for Medical Schemes (‘the Council’)
and fourth applicant to intervene
is the Registrar of Medical Schemes
(‘the Registrar’). Their applications are supported
by an affidavit deposed
to by Mr Daniel Malesela Lehutjo, the acting
Registrar and the acting Chief Executive of the Council.
[37] The Registrar
and the Council intend to oppose the main application. The
neutral attitude of the Minister prompted them
to take up this
attitude. Mr Lehutjo describes the functions of the RMS and the
CMS. They include,
inter alia
, the power to implement
Regulation 8.
He contends that the setting aside of
Regulation
8
will affect their own functions but also the rights and interests
of members of medical schemes.
Fifth
applicant to intervene
[38] Fifth applicant
to intervene is B Braun Avitum (Pty) Ltd (‘Braun’) a
South African private company carrying on
business at 253 Aintree
Road, Hoogland Ext 41, Northriding, Johannesburg, Gauteng.
[39] Its founding
affidavit in this application for intervention was deposed to by its
managing director Ms Marguerite Claire Anderson.
She is a
registered nurse and midwife and she has a certificate in Business
Management from the University of Witwatersrand Business
School.
She has had extensive training and experience in the field of kidney
dialysis.
[40] Braun is a
provider of dialysis and related services and equipment to some 32
clinics located both within and outside of private
hospitals
throughout South Africa. They typically provide between 5 and
15 dialysis stations at such institutions and they
treat a total of
approximately 900 patients around the country at any one time.
Some of these services are provided to patients
at, or from, state
hospitals and the balance are provided to patients being treated at
private hospitals and clinics. Nationwide,
there are
approximately 10 000 patients on dialysis. The state is
able to provide dialysis services to a maximum of
approximately 20%
of these patients. The remaining patients receive dialysis from
Braun and other similar private service
providers.
[41] One of Braun’s
principal reasons for wishing to intervene is that the setting aside
of
Regulation 8
, particularly in the manner in which Genesis seeks to
do, will have severe and deleterious consequences for many, if not
most,
members of Medical Schemes in South Africa who suffer from
kidney disease and who are in need of life saving dialysis and other
such treatments. Dialysis treatment is a costly services to
provide as it involves,
inter alia
, expensive equipment,
highly trained personnel and the provision of physical facilities at
which the time consuming procedures
may be carried out. This
means that there are very few people in South Africa who could,
without considerable financial assistance,
afford to undergo this
treatment. A typical session costs a private patient
approximately R1 600,00 per session.
Typically patients
receive three sessions of dialysis a week.
[42] Braun cannot
provide this service and meet all of the costs consequent upon the
service at the rates paid by state hospitals
for dialysis in terms of
the service level agreements entered into between the state and
Braun. The charges levied and paid
to Braun by the state for
these state patients are to some extent subsidised by Braun.
Were Braun to be limited to charging
patients (and hence medical
schemes) at state hospital rates it would go out of business in South
Africa and it would not be able
to provide dialysis services to
either private or to state institutions and their respective
patients. The situation for
these patients would be
considerably worse if Genesis were to get its way and confine
treatment for PMBs to state hospitals and
facilities only.
[43] Ms Anderson
submits that in circumstances where Braun alone (excluding other
private dialysis service providers) were unable
to provide its
services, some 900 South Africans would be deprived of dialysis
services and simply die of renal failure.
As it is, there are
already insufficient dialysis facilities available in this country to
treat all of those who require such treatment
and the effect of the
setting aside of
Regulation 8
would considerably worsen the situation
for those South Africans who suffer from kidney disease.
[44] She contends
that Braun accordingly has a direct and substantial interest in
maintaining the existence and application of
Regulation 8
, at the
very least in substantially the same form as it is now applied in
practice in order to sustain its business and to enable
it to provide
these life-saving services in South Africa. The state cannot
accommodate all of the patients who are presently
cared for in
private health care institutions and private health care institutions
cannot treat patients at the cost levels that
state hospitals are
able to do.
[45]
Mr Anderson summarises Braun’s claim to intervene in the main
application. It wishes to intervene as a party acting
in its
own interest inasmuch as the constitutionality of
Regulation 8
is in
issue. The right to access health care services and to receive
medical treatment, which is guaranteed in the Bill of
Rights, will be
threatened or infringed should
Regulation 8
be declared invalid.
Braun furthermore has a direct legal and financial interest which
will be prejudicially affected should
Regulation 8
be declared
invalid. Braun also acts on behalf of the kidney patients who
will be affected.
Sixth
applicant to intervene
[46] Sixth applicant
to intervene is the Multiple Sclerosis Association of South Africa
(‘MSSA’). It is a non-profit
organisation
represented in this application by its Vice-chairperson Ms Samantha
Ann Gregory. She holds the degrees of MBChB
and LLB. She
has practised as a doctor since 1994 and she commenced practising as
an attorney in 200. Although her
primary profession is that of
a patent attorney, she continues to practise medicine. She has
experience of the everyday interactions
between patients with
Multiple Sclerosis and their medical schemes. In her capacity
as attorney she also represents Braun
and seventh applicant, the
Infertility Awareness Association of South Africa, in the present
matter.
[47] The MSSA is a
registered non-profit organization aimed at advocating the needs of
those who suffer from MS. Its aim and
purpose is to increase
awareness of the condition and, most relevantly, to secure continued
and affordable healthcare for Multiple
Sclerosis patients. The
MSSA and its branches have a current membership of approximately
1 500 members. It is
estimated that between 6 000 and
7 000 people in South Africa have been diagnosed with one of the
various forms of Multiple
Sclerosis. The MSSA represents its
members in bringing this intervention application. Its
opposition will also work
to the benefit of those Multiple Sclerosis
patients who are not members of the MSSA.
[48] Dr Gregory
provides a full description of the nature and symptoms of Multiple
Sclerosis. It is a chronic and ongoing
neurological disorder.
There is no cure for multiple sclerosis. Treatment typically
focuses on speeding recovery from
attacks, slowing the progression of
the disease and managing various symptoms.
[49] Dr Gregory
refers to a number of considerations which support the contention
that the MSSA has
locus standi
to intervene in the main
application. The MSSA as the representative of its members and
as an advocate of those with Multiple
Sclerosis is an interested
party to the proceedings and has a direct and substantial interest in
the outcome of the application.
The setting aside of
Regulation
8
and the PMBs will have a severely detrimental effect on patients
with MS. The fact that the facilities offered by the state
are
unable to meet the public demand for these treatments means that the
private facilities perform a valuable and life-saving
function.
Most Multiple Sclerosis patients will be unable to obtain any
treatment at a public facility at all. Accordingly
and in the
event that it is permitted to intervene in the main application, the
MSSA would oppose any declaration of invalidity
of
Regulation 8.
Ms Anderson submits that this would be in the interests of justice in
that its members would then continue to be able to
access their
rights to healthcare in terms of the provisions of section 27 of the
Constitution of the Republic of South Africa
108 of 1996 (‘the
Constitution’). In addition, there can be no prejudice
occasioned to any other party by the
intervention of the MSSA in the
main application.
Seventh
applicant tor intervene
[50] Seventh
applicant to intervene is the Infertility Awareness Association of
South Africa (‘IFAASA’). Its chairperson,
Ms Meggan
Jill Zunckel deposed to its founding affidavit in this matter.
[51] IFAASA is a
non-profit company. The object of the company is to raise
public awareness and understanding of infertility
as a disease,
provide an educational platform for individuals suffering from
infertility as well as information for family and
friends, to lobby
for change in policies and laws relating to infertility and, most
importantly for purposes of the main application,
to advocate on
behalf of the infertile patient with medical schemes.
[52] The relief
which Genesis seeks in the main application will impact negatively
upon the right of IFAASA’s members to receive
full
compensation, the PMB, for the diagnosis and treatment of
infertility. The relief sought by Genesis will also impact
on
those members of the public suffering from infertility who are
members of medical schemes but are unaware of the main application.
The interpretation which Genesis attempts to attach to Regulation
8(1) will result in financial hardship for IFAASA’s members
and, in some instances, may even result in patients being unable to
afford the treatment to which they are entitled.
[53] For many women,
having access to appropriate health services such as those provided
for in Annexure ‘A’ can mean
the difference between
recurrent miscarriages and a pregnancy resulting in a live birth.
Denying access to the PMBs, which
would be the effect of the relief
sought by Genesis, could result in women not seeking medical
intervention due to issues of affordability.
Such treatments would
otherwise have been available to prevent complications of infertility
such as recurrent miscarriages.
Recurrent miscarriages can be
life-threatening to a woman.
Eighth and
ninth applicants to intervene
[54] Eighth and
ninth applicants to intervene are the South African Private
Practitioners Forum (‘SAPPF’) and Dr Peter
Francois Colin
(‘Dr Colin’). They are jointly referred to herein
as ‘the doctor applicants’.
The SAPPF is a not for
profit company representing approximately 2 400 specialist
medical practitioners. Dr Colin is a psychiatrist
in private practice
and a part-time consultant in the Department of Psychiatry at the
University of Pretoria. He is also
the Chairperson of the
SAPPF. The founding affidavit of SAPPF in the present
application was deposed to by Mr John Christopher
Archer, its chief
executive officer. Mr Archer also represents Dr Colin.
[55] Mr Archer
contends that the SAPPF is entitled to intervene in its own interest,
in the interest of its members, in the interest
of patients who
benefit and stand to benefit from the health services provided by its
members and in the public interest.
Dr Colin is entitled to
intervene in his own interests and in the interests of his patients.
[56] The SAPPF has
been constituted, amongst other things, to serve as a representative
body of private medical practitioners in
South Africa and to promote
the practice and professional and allied interests of its members in
South Africa. In terms of
its memorandum of incorporation,
SAPPF has standing to sue and be sued.
[57] It is Dr
Archer’s contention that the relief sought by Genesis will have
a material impact on the members of SAPPF and
on Dr Colin. PMB
conditions are largely (though not exclusively) specialist or
hospital based. Whichever approach is
adopted, the extent to
which a medical scheme reimburses a doctor has a material impact on
the amount that the doctor charges (and
is paid) for the service,
which, in the case of emergency medical treatment, the doctor is
obliged to perform.
[58] If Genesis is
successful in obtaining the relief it seeks, the regulatory scheme
pursuant to which doctors are reimbursed will
be unlawful and new
regulations will have to be made. Doctors’ existing
rights to full reimbursement from medical schemes
(as provided by
Regulation 8) will be removed. A probable consequence is that
medical schemes would be able to determine,
without regulation, the
rate at which doctors are reimbursed for minimum benefits in the
private sector, to the detriment of doctors.
[59] The doctor
applicants contend that Regulation 8 is a measure intended to
facilitate access to health care services by ensuring
that privately
insured patients (ie medical scheme beneficiaries) have access to a
minimum package of care from their medical schemes.
Doctors in
turn are obliged to give effect to such care. If Regulation 8
is set aside it will materially alter this package
with potentially
adverse consequences for doctors and the patients they care for.
[60] Regulation 8
seeks to ensure an equitable allocation of resources within the
health care and public health care sectors.
The relief sought
by Genesis, if granted, will have material consequences for the
privately insured sector. It will result
in medical schemes
having the power to determine for themselves the basis upon which
they will reimburse patients and service providers
for a minimum care
package. In short, the full costs of the minimum care package
will no longer have to be insured by medical
schemes. This will
inevitably have an impact on the provision of healthcare, the sharing
of the cost of healthcare and the
allocation of available resources,
including the accessibility of doctors to patients.
Furthermore, it may lead to privately
insured patients having to seek
services from the public sector as their private medical insurance
may no longer cover a minimum
package of care.
[61]
The doctor applicants accordingly seek leave to intervene in the main
application in order to oppose it.
The
amici
curiae
[62] The three
applicants to be admitted as
amici curiae
are the Treatment
Action Campaign (‘TAC’), the South African Depression and
Anxiety Group (‘SADAG’) and
People Living with Cancer
(‘PLWC’). They intend to oppose the main
application.
[63] Their
applications to be admitted are motivated in an affidavit deposed to
by Mr Anele Boyce Yawa, the Chairperson of the TAC.
Ms Zane
Wilson on behalf of SADAG and Ms Janie du Plessis on behalf of PLWC
confirmed her allegations insofar as they apply to
their
organisations.
[64] Mr Yawa
provides particulars of the manner in which the proposed
amici
curiae
complied with the requirement of High Court Rule 16A(6).
He also describes in some detail the nature of their respective
activities and their interest in the subject matter of the main
application. He submits finally that all three proposed
amici
curiae
qualify to be admitted as such.
Discussion
[65] The
applications of third and fourth applicants to intervene and the
applications of the
amici curiae
are not opposed by Genesis.
I have considered these applications and I am satisfied that each of
these parties has made out
a proper case to intervene or be admitted
as an
amicus curiae,
as the case may be. I accordingly
propose to grant orders to that effect.
[66] I proceed to
discuss the opposed applications. The applications were heard
together on 25 June 2015. Second applicant
to intervene was
represented by two counsel. Fifth, sixth and seventh applicants
to intervene were jointly represented by
the same counsel.
Fifth, eighth and ninth applicants to intervene were represented by
two counsel and Genesis was represented
by three counsel. I
propose to deal with submissions on behalf of these applicants to
intervene as one unit. I trust
that I am not neglecting any
material element of their arguments.
[67] The contentions
of counsel for the applicants to intervene are basically
straightforward. They argued that the affidavits
filed on
behalf of their clients show clearly that they and their members and
the public have real, direct and substantial interests
in the
retention of Regulation 8 in its present form. They provided
full reasons for the contention that these interests
will be affected
substantially if Regulation 8 were to be set aside. They
accordingly wish to avail themselves of the opportunity
to defend the
validity of Regulation 8.
[68] It appears from
the submissions of counsel for Genesis that they do not appear to
dispute the factual allegations upon which
the applicants to
intervene rely. Nor do they deny that financial interests of
these applicants and their members may be
affected if Regulation 8 is
set aside. Their argument appears to be that the alleged losses
do not afford these applicants
a ‘
legal right’
to
intervene as respondents in the main application.
[69] The starting
point of their argument is the well-known statement of Corbett J in
United Watch & Diamond Co (Pty) Ltd and Others v Disa Hotels
Ltd and Another
1972 (4) SA 409
(CPD) at 416BC:
‘…
when
one comes to examine the decisions to intervention it would seem that
the test of a direct and substantial interest in the
subject-matter
of the action is again regarded as being the decisive criterion.’
[70] The gist of the
argument on behalf of Genesis appears from the following passages in
their heads of argument:
’
19.
As to what a direct and substantial interest involves: it is
well-established that what is entailed is a “legal
interest”
in the litigation which may be prejudicially affected by the judgment
of the court, and not merely a financial
interest (which is only an
indirect interest in the litigation), or another form of an indirect
or derivative interest. Examples
of persons having a direct and
substantial interest are joint owners, joint contractors and
partners. By contrast, a sub-tenant
or another person with a
contractual relationship with a tenant does not have a direct and
substantial interest, but merely a derivative
one.
20. A person with
a direct and substantial interest would – as HASA asserts –
be entitled to be cited as a respondent
in the first place; and the
failure to join such a person would accordingly render an application
defective and susceptible to
a special plea of non-joinder.
However, that merely makes the point about how narrow the range of
persons with a direct and
substantial interest in a matter really is.
For it is well-established that the right to claim that another
person should have
been joined in proceedings is a very limited and
confined one, and would essentially be confined to a situation where
the court
order sought would directly (and not indirectly) affect the
legal interests of a third party adversely.’
[71] The argument
thus appears to rest on two legs. The first is that a mere
financial interest or another form of an indirect
or derivative
interest is not sufficient to confer
locus standi
on a
proposed respondent. The second is that a person only has a
legal right to intervene as a respondent if it is required
as a
matter of law that it be joined. The applicants to intervene,
so it was submitted, do not qualify in terms of any one
of these two
criteria.
[72] It seems to me,
however, that Genesis’ contentions do not hold water. The
first leg of the argument is based on
a wrong premise. If a
particular financial interest is a mere indirect interest, then it
is, by definition, not a direct
interest. In the present case,
however, the evidence produced by the applicants to intervene
provided ample proof that their
interests will be directly and
substantially affected by the setting aside of Regulation 8.
[73]
The problem with the second leg of Genesis’ argument is that it
fails to distinguish between two kinds of joinder, namely
joinder of
necessity and joinder of convenience. This distinction has been
applied in the common law even before the advent
of the
Constitution. It is summarised in the judgment of Cilliers AJ
(Goldsmith J and Joffe J concurring) in
Rosebank Mall (Pty) Ltd
and Another v Cradock Heights (Pty) Ltd
2004 (2) SA 353
(WLD)
para [11]:
‘
[11]
It is important to distinguish between necessary joinder (where the
failure to join a party amounts to a non-joinder), on
the one hand,
and joinder as a matter of convenience (where the joinder of a party
is permissible and would not give rise to a
misjoinder), on the other
hand. In cases of joinder of necessity the Court may, even on appeal,
mero motu raise the question of
joinder to safeguard the interests of
third parties, and decline to hear the matter until such joinder has
been effected or the
court is satisfied that third parties have
consented to be bound by the judgment of the Court or have waived
their right to be
joined.’
[74]
Cilliers
et al
Herbstein & Van Winsen
The Civil
Practice of the High Courts of South Africa
5
th
edition 208 – 209 describes the difference between the two
forms of joinder in similar terms:
‘
It
is important to distinguish between necessary joinder, where the
failure to join a party amounts to a non-joinder, and joinder
as a
matter of convenience, where the joinder of a party is permissible
but does not give rise to non-joinder. In cases of
joinder of
necessity, if the parties do not raise the issue of non-joinder, the
court should raise it mero motu to safeguard the
interests of third
parties and it should decline to hear the matter until such joinder
has been effected, or until the court is
satisfied that the third
parties have consented to be bound by the judgment or have waived
their right to be joined. This
can be done even on appeal.’
[75]
Erasmus
Superior Court Practice
B1-96 deals with the
difference between these two forms of joinder as follows:
‘
Apart
from the obligatory joinder of a party who has a direct and
substantial interest in the subject-matter of the litigation,
a
defendant may be joined under the common law on grounds of
convenience, equity, the saving of costs and the avoidance of
multiplicity
of actions.’
[76]
In a footnote to this text the authors refer to a line of cases in
which joinder of convenience was allowed. I quote
from two of
them. In
Roberts Construction Co Ltd v Verhoef
1952 (2)
SA 300
(W) at 308H-309A it was said:
‘
This
established practice is no doubt based on considerations of
convenience in the administration of justice. Convenience is a
factor
of great and often decisive importance in matters of procedure. See
Van der Lith v Alberts and Others,
1944 T.P.D. 17
at p. 22, and the
further cases cited arguendo by counsel for the appellant at p. 18 of
the report. I do not decide that the present
case is one where the
respondent could claim as of right that the present employer should
be joined. I need go no further than
to say that this is a case where
I consider it desirable that the present employer should have an
opportunity of being heard. This
is in the exercise of the discretion
referred to by VAN DEN HEEVER, J.A., at p. 666, in fine, of the
report of Sheshe's case, and
I base myself on considerations of
convenience.’
[77]
In
Ploughmann NO v Pauw and Another
2006 (6) SA 334
(C) para
[15] H J Erasmus J said this:
‘
The
second respondent was joined by an order of Court. This was clearly
done under the inherent power of the Court to order
the joinder of a
further party to an action which has already begun, in order to
ensure that persons interested in the subject-matter
of the dispute
and whose rights may be affected by the judgment of the Court shall
be before the Court, and it also enables the
Court to avoid
multiplication of actions and to avoid waste of costs (see SA Steel
Equipment Co (Pty) Ltd and Others v Lurelk (Pty)
Ltd
1951 (4) SA 167
(T) at 172H - 173A; Harding v Basson and Another
1995 (4) SA 499
(C)
at 501I). In my view, the second respondent has been properly
joined.’
[78] In the present
case the applicants to intervene do not claim that they should have
been joined as a matter of necessity nor
does the court. They
accept that their joinder is to be regarded as a joinder of
convenience which is in the discretion of
the court.
[79]
The contentions on behalf of Genesis do not, furthermore, attach
sufficient weight to the judgments in which the Constitutional
Court
which are to the effect that a broader and more expanded test of
standing should be applied in constitutional litigation.
See,
for example,
Ferreira v Levin NO and Others; Vryenhoek and Others
v Powell NO and Others
1996 (1) SA 984
(CC) at para [229] (per
O’Regan J):
‘
This
expanded approach to standing is quite appropriate for constitutional
litigation. Existing common-law rules of standing have
often
developed in the context of private litigation. As a general rule,
private litigation is concerned with the determination
of a dispute
between two individuals, in which relief will be specific and, often,
retrospective, in that it applies to a set of
past events. Such
litigation will generally not directly affect people who are not
parties to the litigation. In such cases, the
plaintiff is both the
victim of the harm and the beneficiary of the relief. In litigation
of a public character, however, that
nexus is rarely so intimate. The
relief sought is generally forward-looking and general in its
application, so that it may directly
affect a wide range of people.’
And
in the same matter at para [165] (per Chaskalson P):
‘
I
can see no good reason for adopting a narrow approach to the issue of
standing in constitutional cases. On the contrary, it is
my view that
we should rather adopt a broad approach to standing. This would be
consistent with the mandate given to this Court
to uphold the
Constitution and would serve to ensure that constitutional rights
enjoy the full measure of the protection to which
they are entitled.’
[80]
In
Kruger v President of Republic of South Africa and Others
[2008] ZACC 17
;
2009 (1) SA 417
(CC) at para
[24]
the standing of an attorney was
recognized in a case dealing with the validity of a proclamation in
the area of law in which he
practised. The Constitutional Court
(per Skweyiya J) said this:
‘
We
should in my view nonetheless adopt a generous approach to standing
in this case. In so doing I am mindful of the fact that
constitutional litigation is of particular importance in our country
where we have a large number of people who have had scant educational
opportunities and who may not be aware of their rights. Such an
approach to standing will facilitate the protection of the
Constitution.’
[81] In
Giant
Concerts CC v Rinaldo Investments (Pty) Ltd and Others
2013 (3)
BCLR 251
(CC) para [41] Cameron J summarised the position with regard
to own-interest standing as follows:
‘
These
cases make it plain that constitutional own-interest standing is
broader than the traditional common law standing, but that
a litigant
must nevertheless show that his or her rights or interests are
directly affected by the challenged law or conduct. The
authorities
show:
(a)
To establish own-interest standing under the Constitution a litigant
need not show the same “sufficient, personal
and direct
interest” that the common law requires, but must still
show that a contested law or decision directly affects
his or her
rights or interests, or potential rights or interests.
(b)
This requirement must be generously and broadly interpreted to accord
with constitutional goals.
(c)
The interest must, however, be real and not hypothetical or academic.
(d)
Even under the requirements for common law standing, the interest
need not be capable of monetary valuation, but
in a challenge to
legislation purely financial self-interest may not be enough –
the interests of justice must also favour
affording standing.
(e)
Standing is not a technical or strictly-defined concept. And
there is no magical formula for conferring it. It is
a tool a court
employs to determine whether a litigant is entitled to claim its
time, and to put the opposing litigant to
trouble.
(f)
Each case depends on its own facts. There can be no general rule
covering all cases. In each case, an applicant
must show that he or
she has the necessary interest in an infringement or a threatened
infringement. And here a measure of
pragmatism is needed.
’
[82] Counsel for
Genesis argued, however, that the approach reflected in the
Constitutional Court cases referred above, dealt with
the
standing
of an applicant or plaintiff and not the right of a defendant or
respondent to join as a defendant or respondent. According
to
counsel this is a material difference.
[83] I do not agree
with the latter submission. In terms of section 34 of the
Constitution everyone has the right to have
any dispute that can be
resolved by the application of law decided in a fair public hearing
before a court or, where appropriate,
another independent and
impartial tribunal or forum. Genesis’ contentions would
result in a situation which is in conflict
with section 34. It
would not be rational or equitable, furthermore, to limit the right
of access to the courts in a case
of competing litigants to the party
who is the first to institute the proceedings in question. I may add
that I have not been referred
to any authority supporting the
distinction sought to be drawn by counsel for Genesis.
[84]
Counsel for Genesis invoked the judgment of Van Heerden J in
Gory
v Kolver NO and Others
2007 (4) SA
97
(CC)
in support of an argument that a
direct and substantial interest in the subject matter of the
litigation has become a more stringent
requirement for standing under
the Constitution. They base this argument on a statement by the
learned Justice which is to
the effect that a direct and substantial
interest in the subject matter of the litigation is a necessary but
not sufficient condition
for standing. In paras [12] and [13]
Van Heerden AJ said this:
‘
[12]
In disputes concerning the constitutional validity of a statute, it
would – so it was submitted be impractical if “the
test
of a direct and substantial interest in the subject-matter of the
action is again regarded as being the decisive criterion”
(
emphasis added).
This
Court would not be able to function properly if every party with a
direct and substantial interest in a dispute over the constitutional
validity of a statute was entitled, as of right as it were, to
intervene in a hearing held to determine constitutional validity.
[13]
This submission is a convincing one. In every case this Court
must ultimately decide whether or not to allow intervention
by
considering whether it is in the interests of justice to grant leave
to intervene. Thus, in cases involving the constitutionality
of a
statute, while a direct and substantial interest in the validity or
invalidity of the statute in question will ordinarily
be a necessary
requirement to be met by an applicant for intervention, it will not
always be sufficient for the granting of leave
to intervene. Even if
the applicant is able to show a direct and substantial interest, the
Court has an overriding power to grant
or to refuse intervention in
the interests of justice. Other considerations that could weigh with
the Court in this regard include
the stage of the proceedings at
which the application for leave to intervene is brought, the attitude
to such application of the
parties to the main proceedings, and the
question whether the submissions which the applicant for intervention
seeks to advance
raise substantially new contentions that may assist
the Court.
[85] In my view,
however, the
Gory
judgment it does not advance Genesis’
case. It is not inconsistent with the wide approach to standing
which was confirmed
in the Constitutional Court judgments referred to
above. What the judgment shows is that the court exercises a
wide discretion
when it decides whether a particular litigant has the
required standing to approach a court. The overarching
criterion is
the interests of justice.
[86] In the present
case I am of the view that there are a number of material
considerations which support the applicants’
right to intervene
as respondents. The interests of these applicants and their
members in the relief sought by Genesis are
real, direct and
substantial. The applicants act on behalf of huge numbers of
healthcare providers. The relief would
probably also affect the
availability of healthcare services to many members of the public.
The Minister of Justice elected
to abide the court’s judgment.
In these circumstances it is desirable that Genesis’ attack on
the validity of
Regulation 8 be properly defended. Applicants
to intervene further propose to lead evidence which would be
representative
of the vantage point of each of them.
[87] In the light of
all these considerations I am firmly of the view that it would be in
the interests of justice to grant leave
to all the applicants to
intervene in the main application.
Costs of suit
[88] The
applications of second, fifth, eighth and ninth applicants to
intervene were opposed by Genesis. These applicants
are
successful in the present application and they ask for orders that
Genesis pay their costs. Genesis submitted, however,
that their
costs should be costs in the cause. I do not agree. The
success of the applicants in the present intervention
applications is
independent of the outcome of the main application. Second,
fifth, eighth and ninth applicants to intervene
are accordingly
entitled to their costs, which, in the case of second, eighth and
ninth applicants to intervene, include the cost
of two counsel.
[89] Third and
fourth applicants asked for costs only in the event of opposition by
Genesis. Genesis did not oppose their
applications and it is
therefore not liable for their costs. Counsel for sixth and
seventh applicants to intervene informed
the court that their legal
representatives rendered their services on a
pro bono
basis.
The applications of the
amici curiae
were not opposed and they
do not ask for costs.
Conclusion
[90] In the result,
I grant the following orders:
(1) Second, third,
fourth, fifth, sixth, seventh, eighth and ninth applicants to
intervene are granted leave to intervene as respondents
in the main
application.
(2) First, second
and third applicants for admission as
amici curiae
in the main
application
,
are admitted as such.
(3)
Genesis is ordered to pay the costs of second, fifth, eighth and
ninth applicants to intervene, which include the cost of two
counsel.
SIGNED
A
P BLIGNAULT