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Mandatory medical cover discriminates against foreign students

Some South African universities are demanding medical cover from SADC students before registering them, even when they already belong to a medical scheme in their own countries.
“Some students have been refused registration if they do not have the cash to pay a year’s policies in advance,” says Callie Schäfer on behalf of Namibia’s healthcare funders. This is in spite of the fact that the medical schemes in the SADC countries provide guaranteed cover for South Africa and this is accepted by some of the South African embassies that issue the student visas.

“One Batswana student who was studying by correspondence had to pay for medical cover before a university would accept a document that had to be hand delivered. He was in South Africa for one day!” says Duncan Thela, MD of Associated Fund Administrators in Botswana.

Duncan Thela
Duncan Thela

Most of the medical schemes in the SADC countries have arrangements with all the major South African healthcare provider networks. There is mutual recognition and facilitation of cross border payments and a system of pre-authorisation is in place.

“The requirement for students to have a South African medical aid is at odds with the SADC Protocol on Education which South Africa has signed and ratified,” Thela says.

“This requirement has serious implications,” Schäfer explains. “It is illegal for a Namibian to belong to two medical schemes, so they must resign and rejoin, with a waiting period, when they return. There are cost implications to changing from a dependent to a main member of a scheme. Very often, the parents have to choose between continuing to have medical aid in Namibia and paying for their child in South Africa.”

He also says that some universities favour certain medical schemes.

“Two or three schemes have booths at registration. Some universities for example recommend two schemes who have weekly consulting hours on campus.”

There have been moves to solve the issue since 2011, when a letter was written on behalf of the SADC schemes to the acting director general in the Department of Higher Education and Training. The Council for Medical Schemes was approached by Namibian schemes in 2015, but there has been no feedback to a request to convene a meeting between CMS, BHF and the SADC medical schemes.

The question is whether there is any basis in law in terms from which this requirement may be departed, or whether it ought to be dispensed with as a matter of law,” says Andrew Molver, a partner in the legal firm Adams & Adams, which looked into the matter.

His conclusion is:
  • There are no prescribed statutory exemptions to the requirement that foreign students must be covered by locally registered medical schemes.
  • There is no legislative basis on which to recognise foreign medical schemes as constituting medical schemes registered in terms of the MSA for purposes of their members applying for study permits.
  • There are no treaties and/or protocols which, through municipalisation into South African domestic law, permit a deviation from the prevailing statutory provisions that require foreign students to be registered with medical schemes registered in terms of the MSA.

Molver mentions that although it might theoretically be possible to challenge the constitutionality of the relevant provisions of the immigration regulations to the extent that they unreasonably and unjustifiably limit the right to access education in terms of section 29(1)(b) of the Constitution, this would be an extremely difficult case to make out.

“The current situation is unfair and discriminating,” Thela says. Schäfer agrees, saying: “The fact that this is inconsistently applied raises many questions. There are good reasons why we need to at least get a meeting to put our case and to consider our options going forward.”
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