DeWet vs Medihelp - Clarity on Judge Swanepoel’s order pertaining to Medihelps obligations to fund treatment.

Johannesburg - 6 November 2025

We are disconcerted by a media statement apparently issued by Medihelp Medical Scheme and referred to on the website of “Moonstone Information Refinery Pty Ltd” following the judgment of the Pretoria High Court in the matter of De Wet v Medihelp.

Medihelp’s statement in the aforesaid article that Judge Swanepoel’s judgment “finds that it should not fund the cost of [Zach’s] Elaprase” is factually incorrect, and its statements that Judge Swanepoel’s order “provides that Medihelp need not fund the cost of Elaprase” and that this is “in accordance with” findings of the Appeals Committee of the Council for Medical Schemes that “Medihelp is not obliged to cover the cost of Elaprase” are both misleading.

In his judgment, Judge Swanepoel dismissed Medihelp’s application for the discharge of an earlier order of the Hon. Mr Justice Millar dated 26 August 2022. Judge Millar’s order expressly obliged Medihelp to “authorize the treatment and care costs of all medical interventions required by Zachary and prescribed by his treating practitioners for Hunter Syndrome MPII as PMB level of care, which treatment includes inter alia Elaprase …”

Judge Swanepoel described Medihelp’s arguments in its discharge application as “astounding”, “frivolous”, “without merit” and “exceedingly cynical”.

On the other hand, Judge Swanepoel granted the counter-application which Zachary and Rare Diseases South Africa brought to declare Medihelp in contempt of court for its non-compliance with Judge Millar’s order.

Specifically paragraphs 44.2 and 44.3 of Judge Swanepoel’s order state as follows:

“44.2 It is declared that the applicant is in contempt of the order of Millar J dated 26 August 2022;

44.3 The applicant shall purge such contempt by complying with the Millar J order in full, henceforth, save in relation to the costs of Elaprase… .”

In his judgment in support of these orders, Judge Swanepoel held that Medihelp’s explanation for its non-compliance “does not hold water” and that “I have no doubt that the applicant [Medihelp] has taken the view that it will not fund treatment for Zachary’s condition, despite having been ordered to do so, and that its conduct is mala fide. Initially it refused to provide Elaprase itself, and lately it has even refused to fund the cost of administering the medicine, nor has it funded other treatment associated with MPS II. I have no doubt that the applicant is in contempt of the Millar J order inasmuch as it has refused to fund Elaprase, and even less doubt that it is in contempt of the order requiring it to fund the costs associated with MPS II care.”

Judge Swanepoel also found that Medihelp had refused to fund these other treatments associated with Zach’s MPS II, “even to the point of refusing to fund the medical expenses associated with administering Elaprase” and that it had said in an email that it refused to fund Zach’s speech and occupational therapy on the basis that the criteria on his benefit option had not been met, despite “knowing that speech and occupational therapy was a PMB level treatment for MPS II and that it was obliged to fund the treatment. It has provided contradictory explanations for its refusal to fund the treatments. It has brought a discharge application on the most spurious grounds, cynically using its own failure to comply with the Millar J order as justification for its application”.

In other words, Medihelp was declared to be in contempt of court both because of its failure to fund Zachary’s Elaprase medication and also because it had refused to commit to funding other treatment and care costs associated with his care for MPS II. The judgment did not find that Medihelp is not obliged to fund Elaprase. It in fact confirms that it is indeed required to do so, precisely because Judge Millar’s order requires that.

The reason why paragraph 44.3 of Judge Swanepoel’s order only requires Medihelp at this stage to purge its contempt in respect of Zach’s treatments other than the costs of the Elaprase itself was because our legal team did not request that it should be ordered to do so – and not because Medihelp’s failure to fund the medication was not found to be in contempt of court. Our team’s decision was made because Zachary is currently receiving donations of his Elaprase on a benevolent basis through a compassionate program (the ICAP program) until the final outcome of his legal challenge. These donations have been made by the ICAP program on an exceptional basis – precisely because of Medihelp’s refusal to comply with the Judge Millar’s order.

What is more, the Appeal Committee of the Council Medical Schemes found in its ruling of 30 June 2025 that Medihelp is legally required to fund Zach’s treatment with Elaprase for his MPS II “as a PMB level of care”. However, the Appeal Committee decided not to “insist on compliance with the Act and Regulations” because of Medihelp’s solvency ratio was below the statutory minimum threshold. It is correctly stated on Moonstone’s website that this decision of the Appeal Committee is on appeal to the CMS Board. However, that appeal is being pursued not only by Medihelp, but also by Zach and Rare Diseases SA. In the meantime, the effect of both Judge Millar and Judge Swanepoel’s orders remain the same: Medihelp must “authorize the treatment and care costs of all medical interventions required by Zachary and prescribed by his treating practitioners for Hunter Syndrome MPII as PMB level of care, which treatment includes inter alia Elaprase”.

Media enquiries:

Kelly du Plessis – CEO - Rare Diseases South Africa

Info@rarediseases.co.za · 072 623 6763

Alexi Rozenzweig – HJW Attorneys

alexi@hjwattorneys.co.za · +27 79 516 0631