Authored by Michelle David and Ntokozo Ngubane.
In a judgment handed down on 15 June 2026 in the matter of Registrar of Medical Schemes v Council for Medical Schemes and Others, the high court confirmed that complaints against medical schemes must be processed under section 47 of the Medical Schemes Act, 1998 (MSA) and cannot be pursued through the broader investigative enquiry mechanism in section 43 of the MSA. The court dismissed the review application brought by the Registrar of Medical Schemes (Registrar) for amongst others, lack of standing and unreasonable delay in bringing the review application while affirming on the merits that section 47 of the MSA, which affords medical schemes the right to be heard, is the peremptory route for dealing with complaints.
The facts of the case were that:
1 Following the annual general meeting of the South African Police Service Medical Scheme (Polmed) in September 2021, a complaint was lodged by a member alleging governance irregularities at Polmed.
2 The Registrar, rather than processing the complaint under section 47 of the MSA, invoked section 43 of the MSA and directed enquiries to Polmed. Section 47 of the MSA sets out a dedicated procedure for complaints, including the right for a medical scheme to be heard. Section 43 of MSA empowers the Registrar to address enquiries to any medical scheme on "any matter connected with the business" of the medical scheme.
3 Polmed responded to the enquiries but subsequently raised an objection to the Registrar on the basis that the use of section 43 to process the complaint was beyond the scope of that provision and as such ultra vires.
4 The Registrar made a finding against Polmed and Polmed filed an appeal to the Appeal Committee of the Council for Medical Schemes (Appeal Committee) under section 49(1) of the MSA. The Appeal Committee upheld the appeal on 7 February 2023 and held that the Registrar’s invocation of section 43 of the MSA deprived Polmed of its rights under section 47 of the MSA and as such complaints must be processed under section 47 (2023 Ruling).
5 The Registrar complied with the 2023 Ruling of the Appeal Committee, processed the complaint under section 47 of the MSA and dismissed it. That dismissal was itself upheld on appeal in November 2024.
6 Despite having complied with the 2023 Ruling, the Registrar instituted review proceedings almost a year after the 2023 Ruling, seeking to set it aside on the basis of legality and common law review.
Against that background, the court had to decide on amongst others, the following issues, namely:
1. Whether the Registrar had locus standi to challenge a ruling of the Appeal Committee;
2. Whether the Registrar's review application relying on legality/ common law review principles was competent at all; and
3. Whether section 43 may lawfully be invoked to process complaints.
The Registrar argued that section 43 empowers him to investigate "any matter" connected with a medical scheme's business, including complaints. He likened section 43 enquiries to section 44 inspections, which are investigative and not appealable. Polmed, maintained that section 47 is peremptory for complaints because it affords medical schemes procedural rights that cannot be bypassed. The Appeal Committee had agreed with Polmed’s interpretation.
The court was not persuaded by the Registrar’s argument and held that:
(a) Section 18(3) of the MSA obliges the Registrar to act in accordance with the MSA and the directions of the Council. Relying on Registrar of Pension Funds v Howie NO [2016] 1 All SA 694 (SCA), the court held that a registrar is the executive officer of the Council, not an adversary and as such cannot adopt an adversarial position against an appeal tribunal as doing so undermines public confidence and upsets the statutory design. As such, the Registrar lacked locus standi to bring the review application in the manner in which he did.
(b) The ruling was delivered on 7 February 2023, but the review was only instituted almost a year later without explanation and as such found the unexplained delay to be unreasonable.
(c) The matter was moot in that the Registrar had complied with the 2023 Ruling, processed the complaint under section 47 of the MSA, and the complaint had been dismissed and that dismissal was upheld on appeal. The relief sought was therefore academic. Having acquiesced in the ruling, the Registrar could not now contest it.
(d) The Registrar had failed to exhaust an internal statutory remedy under Section 50 of the MSA which provides an internal appeal mechanism which the Registrar did not pursue before approaching the court.
(e) While section 43 of the MSA is broad in scope and investigative in nature (not adjudicative), section 47 of the MSA specifically governs complaints and ensures the right of a medical scheme to be heard. Allowing section 43 to supplant section 47 would undermine the statutory safeguards that the legislature built into the complaint’s procedure. The Appeal Committee's interpretation was correct.
The key takeaway from the above is that a complaint is not merely an enquiry as it triggers specific statutory rights under section 47 of the MSA, including the right to be heard. Section 43 of the MSA serves a valuable investigative function, but it was not designed to replace the complaints procedure under section 47 of the MSA. The practical lesson is that when a medical scheme receives correspondence relevant to a complaint from the Registrar, it should assess whether the substance of the engagement is recognised within the legislative complaint process A medical scheme is entitled to insist on the procedural rights afforded by section 47 of the MSA. The case highlights that the substance of the regulatory mechanism is what will be tested by a court as against the relevant statutory framework.
The case is an important one for all regulators, confirming that their powers and obligations are firmly found within the relevant statute and a regulator must act in terms of such provisions at all times or find itself at odds with the very statute from which it derives its powers.
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