The original court case revolves around a Declaratory Order Application on the correct interpretation of Regulation 8 of the Medical Schemes Act which deals with the payment for Prescribed Minimum Benefits (PMB), the November 2011 judgement did not deal with the merits of the case, but instead found that the BHF did not have the necessary locus standi to bring the matter to court, and awarded it the cost order. The application for leave to appeal was therefore based on the issue of locus standi and the cost award.
"What concerns us is the way that representative organisations are perceived by the courts when they take up issues on behalf of their constituencies. It cannot be the case that representative organisations do not have the locus standi to do this. This surely sets precedence and has severe negative consequences for other industry representative organisations wishing to act on behalf of their members, such as the Chamber of Mines, BUSA, SANTACO, etc", says Dr Humphrey Zokufa, MD.
The BHF believes that it was acting responsibly and in the interest of all medical scheme members in seeking the original Declaratory Order, as the Regulation 8 issue has and continues to have a severe negative impact on medical scheme costs and benefits.
Says Dr Zokufa, "We also question as to how the court found that the BHF did not possess the necessary locus standi, but did not question the locus standi of the opposing parties, most of whom were also representative bodies!"
The BHF previously sought Senior Counsel opinion on the matter from three Senior Counsel. These opinions emphasised the constitutional right to access the courts and the rights of representative bodies to approach court on behalf of members, both of which the BHF believes have not been thoroughly considered.
"We would like to believe that we operate in a country where constitutional rights are taken seriously and the justice system is fair. However, we do not feel that this case has been given the necessary significance to demonstrate fairness by the courts. We therefore consider it our duty to explore ways of taking this matter forward in a responsible and constructive way, as we have done in the past", concludes Zokufa.
