The High Court in Pretoria has dismissed an urgent contempt-of-court application by the Board of Healthcare Funders (BHF) against the Council for Medical Schemes (CMS), the Registrar of Medical Schemes, and the Minister of Health.
The judgment is the latest development in the litigation between the BHF and the CMS over low-cost benefit options (LCBOs).
The BHF represents most of the country’s medical schemes and healthcare funders, representing schemes and administrators with nearly 4.5 million beneficiaries.
LCBOs are cheap, pared-down benefit packages that do not provide all the benefits required by the Medical Schemes Act – in particular, the prescribed minimum benefits.
In August last year, the BHF applied to the High Court to overturn what it calls “the moratorium” that prohibits medical schemes from providing LCBOs. It wants the CMS to provide medical schemes with an exemption from the Act until the regulator has finalised a legal framework for LCBOs.
The CMS says there is no moratorium and providing medical schemes with a general exemption would be unlawful.
The CMS started work more than seven years ago on developing guidelines that will enable medical schemes to offer LCBOs.
Litigation over the record
Since the BHF filed its main application last year, it has brought further applications concerning the record relating to the CMS’s and the Minister’s decisions on LCBOs.
The BHF does not believe it has been provided with a complete record. It says the record does not include the “source documents” upon which the decisions were based or the documents reflecting deliberations on how the decisions about LCBOs were made.
The BHF launched an application, in terms of Rule 30A of the Uniform Rules of Court, for the CMS and Minister to provide a list of documents that it believed the respondents should have produced.
The respondents contended that some of the documents do not exist, and the Rule 30A application was an abuse of the court process.
In a judgment delivered on 10 July, Acting Judge GB Botha gave the CMS and the Minister of Health until 24 July to produce all the documents listed by the BHF. But the CMS and the Minister failed to comply with the order.
The BHF filed an urgent contempt-of-court application on 26 July. On the same day, the CMS and the Minister filed an application to appeal Judge Botha’s judgment.
Judge Elmarie van der Schyff dismissed the BHF’s application in a judgment handed down on 10 August, finding a case had not been made to justify the urgency of the application.
She said the BHF had not explained why Acting Judge Botha could not hear the BHF’s application and the respondents’ application for leave to appeal simultaneously in the “foreseeable future”.
The High Court may hear the applications from both parties in the first week of September.
