The South African Police Service Medical Scheme ('Polmed') v Lamana

The respondents were serving members of the South African Police Services and members of Polmed (the first appellant), a medical aid scheme administered by Qualsa Healthcare (the second appellant). For several years, the respondents and their dependants were patients of Dr Peer in King William's Town. Qualsa paid Dr Peer directly on behalf of Polmed until October 2008, when Polmed's attorney informed respondents that payments would only be made into members' personal bank accounts, not third-party accounts. In December 2008, each respondent signed three documents: a Service Agreement with Dr Peer, a letter instructing Polmed to pay amounts into the Sheh-Rahim Trust's bank account, and an Agency Agreement with the Trust. Polmed and Qualsa refused to make payments into the Trust's account. The respondents instituted motion proceedings to compel payment into the nominated account. The court a quo granted the application on 9 August 2009, interpreting rule 17.5 as requiring payment into 'a generally acceptable account'. On 11 May 2010, before the application for leave to appeal was lodged on 21 May 2010, amendments to Polmed's rules were registered requiring payments to be made into the 'personal bank account of the member', rendering the dispute academic.

• Whether Polmed and Qualsa were entitled to refuse payment into the Sheh-Rahim Trust account under the original rule 17.5
• The proper interpretation of 'an acceptable bank account' in the original rule 17.5
• Whether the appeal should be dismissed as academic under section 21A of the Supreme Court Act 59 of 1959 following the registration of rule amendments
• Whether parties have a duty to inform the court of material changes to facts when seeking leave to appeal and during the appeal process
• The proper procedure for placing facts relevant to section 21A before the court

The appeal was dismissed with costs, including the costs of two counsel, to be paid by the appellants jointly and severally.

If facts relevant to the exercise of a court of appeal's discretion under section 21A of the Supreme Court Act 59 of 1959 do not appear from the record, they must be placed before the court by way of affidavit by the party seeking to rely upon them and in sufficient time to enable the other party to deal with them. The same applies in an application for leave to appeal. Parties have a duty to inform the court of material changes to the factual or legal position (such as amendments to rules that render the issues academic) when seeking leave to appeal and during the appeal process. A court will exercise its discretion under section 21A(1) to dismiss an appeal where the issues have become moot and no proper factual foundation has been laid to establish that the judgment would have some practical effect or result, or that exceptional circumstances exist.

The court observed (without finally deciding) that the correct interpretation of 'an acceptable bank account' in the original rule 17.5 appeared to be 'acceptable to Polmed' rather than 'a generally acceptable account', and that Polmed had good and sufficient reasons for refusing the Trust's account based on concerns about fraud. The court also noted, without deciding, that the 'practical effect or result' referred to in section 21A(1) might not be restricted to parties inter se and could potentially include practical effects in other respects (referring to Radio Pretoria v Chairman, Independent Communications Authority of South Africa 2005 (1) SA 47 (SCA) para 40), but found it unnecessary to make a final determination on this point as the facts were not properly before the court.

This case is significant for establishing important procedural requirements regarding disclosure obligations when seeking appellate relief. It clarifies that parties have a duty to inform the court of material changes to the factual or legal position when seeking leave to appeal and during the appeal process, particularly facts relevant to whether the appeal has become academic under section 21A of the Supreme Court Act. The case demonstrates the court's willingness to dismiss appeals that have become moot and serves as a warning that failure to disclose material changes can result in adverse cost consequences. It also provides guidance on the proper procedure for placing facts relevant to section 21A considerations before the court - namely, by way of affidavit with sufficient time for the other party to respond, rather than through informal instructions from the bar.