Case name:
South African Police Service Medical Scheme and Another v Lamana and Others 2011 (4) SA 456 (SCA) and Section 21A(1) of the Supreme Court Act 59 0f 1959 (“the Act”).

Area of law:
Substantive and procedural law on Appeals: Power of a court to dismiss appeal where judgment or order sought would have no practical effect or result.

Brief facts/summary:
The rules of the first appellant medical scheme, the South African Police Service Medical Scheme (Polmed), which was administered by the second respondent, Qualsa, provided that payment of amounts due to a member was to be made by means of a transfer to an acceptable bank account elected by the member. The respondents, members of the first appellant,  elected a certain back account, the beneficiary being a medical practitioner who was rendering medical services to them. The appellants refused to make payment into the designated bank account, contending that the beneficiary had a history of fraud.

The High Court held that the nominated bank account was an “acceptable bank account” and accordingly ordered the appellants to make payment as claimed. Leave to appeal was refused.

While seeking leave to appeal to the SCA, which was granted, the rules of the first appellant were amended to provide that payment of amounts due to a member was to be made into the member’s personal bank account. The effect of the amendment was to make it clear that payment would not be made to a third party but to a member only. It would then be the duty of the member to make payment to the third party.

By the time the appeal was lodged with the SCA, the amendment had come into effect. However, the court was not informed of this and only became aware of it at the hearing of the appeal, which was dismissed with costs, Cloete JA (Ponnan, Cachalia, Malan JJA and Meer AJA concurring) held that the amendment rendered the issues between the parties academic. The court further held that had the judges of the SCA, when considering the application for leave to appeal, known that the amendment had come into effect, they could have refused leave in terms of section 21A of the Act.

Section 21A of the Act provides that when at the hearing of any civil appeal to the appellate division or provincial or local provision of the Supreme Court, the issues are of such a nature that the judgment or order sought will have no practical effect or result, the appeal may be dismissed on this ground only.

The court added that if the facts relevant to the exercise of a court of appeal’s discretion under section 21A did not appear from the record, they should be placed before the court by way of affidavit by the party seeking to rely on them, and in sufficient time to enable the other party to deal therewith. The same principle applied to an application for leave to appeal in whatever court it was brought.

Importance/value:
This case provides clarity on and further develops the application of section 21A of the Supreme Court Act 59 of 1959. It is useful to keep in mind when applying for or opposing leave to appeal.

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