Simpson v Selfmed Medical Scheme and Another

• Jurisdiction: South Africa
• Judge: Hoexter JA, Hefer JA, Kumleben JA, F H Grosskopf JA and Van den Heever JA
• Judgment Date: 30 November 1994
• Docket Number: 91/93
• Hearing Date: 02 November 1994
• Court: Appellate Division

Hoexter JA:

The first respondent is a medical scheme registered in terms of s 15 of the Medical Schemes Act 72 of 1967 ('the Act'). The second respondent administers the first respondent. In terms of s 20(1) of the J Act no medical scheme shall be registered or carry on business

Hoexter JA

A unless its rules contain certain specified provisions. Relevant to the present appeal is para (f) of s 20(1) which prescribes that the said rules shall provide

'(f)

for the admission, as from the date of receipt of the application for membership, to the scheme as a member thereof, subject to the terms B and conditions applicable to the admission of other members, but without a waiting period or the imposition of new restrictions on account of the state of his health or the health of any of his dependants, of any person who -

(i)

has been a member of any other registered medical scheme for a continuous period of at least two years and whose application for membership of the firstmentioned scheme is necessitated by his changing of employment; or

(ii)

C has, for a continuous period of not less than two years, been a dependant of a person who, during that period, has been a member of that scheme or any other scheme,

and who applies within three months after the date on which he ceased to be a member of such other scheme or a dependant of a member of that scheme or such other scheme, as the case may be, to become a D member'.

(Emphasis supplied.)

In the rules of the first respondent the matter of membership is dealt with in clause 7. Clause 7.1.2.5 of the rules reads as follows:

'Subject to the conditions and stipulations applicable to the admission of E other members, SANMED (the second respondent) allows someone who has been a member or a dependant of a member of a registered medical scheme for an uninterrupted period of at least two years and who applies for membership within three months of the date on which he ceased to be a member or a dependant of a member of such scheme, to become a member without a waiting period or imposing new restrictions on account of his health or that of F any of his dependants.'

The appellant is a divorced woman and the mother of two minor children. Preceding the end of August 1990 the appellant had for a period of some six years been employed by the OK Bazaars ('OKB'). The OKB has a Medical G Aid Society which is a registered medical scheme within the meaning of the Act. The appellant's two children were respectively born on 8 August 1986 and on 26 October 1987. On 18 May 1989 the appellant married the father of her children, Mr A N Simpson ('ANS'). She divorced ANS on 27 April 1990.

Having left the employment of the OKB the appellant wished to acquire membership of the first respondent for herself and for her two children as H her dependants. At the beginning of October 1990 she sent to the second respondent an application form for membership completed by her, together with her cheque for R255, being the amount of the monthly membership fee for the appellant and her two dependants. On 12 October 1990 the cheque was deposited by the second respondent, but early in November 1990 the I second respondent sent a letter to the appellant informing her that her application had been refused. As a refund of the R255 already paid by the appellant the letter of refusal enclosed a cheque from the second respondent for a like amount.

On 15 May 1991, and on notice of motion, the appellant brought an application in the Cape of Good Hope Provincial Division against the J respondents. She sought an order declaring the admission to first

Hoexter JA

A respondent from 12 October 1990 of the appellant as a member and of her two children as dependants of a member (the appellant). The application was resisted by the respondents and lengthy affidavits were filed on either side. The matter came before Brand AJ. On 13 June 1991 the learned Judge dismissed the application with costs. His judgment ('the B application judgment') has been reported as Simpson v Selfmed Medical Scheme and Another 1992 (1) SA 855 (C). Thereupon the appellant appealed unsuccessfully to the Full Court, whose judgment ('the Full Court judgment') has been reported as Simpson v Selfmed Medical Scheme and Another 1993 (1) SA 860 (C). Pursuant to leave granted by this Court the C appellant now appeals against the Full Court judgment.

A preliminary comment is necessary. An unsatisfactory feature of the appeal before us is the form of the appeal record lodged on behalf of the appellant. It has been appreciably swollen by the improper incorporation D therein of many and lengthy irrelevant documents. These include copies of the heads of argument used by counsel in the Courts below and a copy of the petition to the Chief Justice seeking leave to appeal. The appeal record is further marred by the wholesale and careless duplication of various annexures to the affidavits. When the appeal was called the appellant's counsel was asked to explain the introduction of the E superfluous matter. Having taken instructions thereon counsel was able to inform us only that such matter had been included by the attorney at the insistence of the appellant herself; and that the attorney had uncritically accepted such instructions. It need hardly be said that the explanation so proffered is an unacceptable one.

The relief sought before Brand AJ (see at 858I-J of the application F judgment) was based on the following three alternative causes of action:

(1)

on the basis of the provisions of s 20(1)(f) of the Act, as incorporated in the first respondent's rules;

(2)

on the basis of a contract alleged to have been concluded between the appellant and the first respondent;

(3)

G on the basis that the respondents were estopped from declining the appellant's application for membership.

In dismissing the application Brand AJ found that on the facts neither the cause of action based on contract nor the cause of action based on estoppel had been established (see the application judgment at 865G-866B and 866B-H). In regard to both these alleged causes of action the Full H Court agreed with the reasoning of Brand AJ (see the Full Court judgment at 867H-I). That reasoning appears to me to be unassailable; and its correctness was not challenged in argument before us.

I return to the first cause of action raised before Brand AJ and an I examination of the facts on which it was sought to be founded. When during October 1990 the appellant applied for membership of the first respondent she annexed to her application form a certificate from the OKB Medical Aid Society. It reflected that the appellant had been a member of its medical scheme from 1 August 1984 to 30 September 1990 and that the appellant's children had been registered as her dependants from their J respective dates of birth until 30 September 1990.

Hoexter JA

A In her founding affidavit the appellant alleged that she had been a member of the OKB Medical Aid Scheme ('the OKB scheme') for the prescribed period of two years immediately prior to September 1990. However, from affidavits lodged thereafter (see the application judgment at 860I-861J) B it emerged (1) that in fact the appellant's membership of the OKB scheme had been finally terminated on 31 August 1990; and (2) that during the relevant period of two years preceding the latter date the position of the appellant and her two children regarding membership of registered medical schemes was as follows:

(a) C From 1 September 1988 to 31 October 1988 she and her two children had been registered in the records of the OKB Scheme as the dependants of ANS	2 months
(b) From 1 November 1988 to 28 February 1990 the appellant had been registered as a member and her two children as her dependants with the OKB scheme	16 months
(c) D From 1 March 1990 to 31 May 1990 the appellant had not been a...