Duduza Khosana. Picture: SUPPLIED
Duduza Khosana. Picture: SUPPLIED

Duduza Khosana, the ousted provisional curator of Samwumed, a medical aid scheme for local government employees, has lodged an application for leave to appeal her removal saying the Cape High Court erred in replacing her just two weeks before the return date of the curatorship application.

The High Court is due to hear arguments on October 25 on whether the order to place the scheme for unionised municipal workers under provisional curatorship should be made final, and Khosana says the court should decide whether her appointment should be terminated or confirmed.

Earlier this week, judge AJ Engers ruled in favour of the former deputy chair of the scheme, Andre Maxwell, who had asked the court to urgently remove Khosana as provisional curator as she was making radical changes at the scheme that were causing it irreparable harm.

Khosana says in her application for leave to appeal that the court should not have entertained Maxwell’s application, nor a separate one lodged by the acting Registrar of Medical Schemes, Sipho Kabane, to remove her as these were attempts to derail the hearing of the curatorship application. She says neither of the applicants has made a case for the relief they sought — her replacement.

She says there is no evidence that the scheme or its members would have suffered if the matter had been heard when the case to finalise the curatorship order was heard.

The ousted provisional curator and the acting registrar were ordered to pay Maxwell’s legal costs for his application, and they were each ordered to pay their own costs in the acting registrar’s application.

Khosana says Maxwell did not have locus standi to bring the application and she has been saddled with the costs of Maxwell’s “irregular application” while the relief he sought — the appointment of a provisional curator of his choice — was not granted. Engers dismissed Kabane’s application but appointed the provisional curator he put forward, Joe Seoloane.

The court should have dismissed the acting registrar’s application as he had neither made a case for her removal, nor a case for the matter to be heard urgently — and the costs of this matter should have been awarded against the registrar, Khosana said.

Union infighting

Kabane brought the original urgent application to place the scheme under curatorship in May on the grounds that the board was not properly constituted owing to infighting in the union that nominates nine of the scheme’s trustees.

Khosana says the court erred in finding she had not dealt with the scheme’s governance problems as the board of Samwumed had been “dysfunctional” for some time and it was impossible to correct this owing to an appeal pending on a case determining the leadership of the scheme.

She says the court should have recognised that the provisional curatorship order gave her wide powers to investigate “allegations of financial and governance irregularities” that may have arisen from a lack of proper oversight by the trustees. She also says the court had “no factual basis” to conclude that her remuneration, stated in court papers to be R234,000 a month, was “excessive” and was in no position to assess whether any consulting expenses she incurred were appropriate, nor the “productivity” of her decisions.

Khosana says Engers made no factual finding on the termination of her position as principal officer at Medshield when it was put under curatorship in 2012 and should not use this to question her fitness to be the provisional curator of Samwumed.

The judge said he found no need for the court to deal with whether or not Khosana was right to suspend senior scheme managers, including the scheme’s principal officer of many years, Neil Nair. However, he said Khosana had appeared to have conducted a “witch hunt to uncover past irregularities”.

The ousted curator said there was no factual basis for this finding and it was inconsistent with his decision not to deal with the suspension of the senior staff.