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Medical Schemes Act, 1998 (Act No. 131 of 1998)

Chapter 12 : General

63. Amalgamation and Transfer

 

(1) No transaction involving the amalgamation of the business of a medical scheme with any business of any other person (irrespective of whether that other person is or is not a medical scheme) or the transfer of any business from a medical scheme to any other medical scheme or the transfer of any business from any other person to a medical scheme, shall be of any force, unless such amalgamation or transfer is carried out in accordance with the provisions of this section.

 

(2) The medical scheme contemplated in subsection (1) shall deposit with the Registrar a copy of the exposition of the proposed transaction, including a copy of every actuarial or other statement taken into account for the purpose of the proposed transaction, and shall furnish the Registrar with particulars of the voting at any meeting of its members at which the proposed transaction was considered and with such additional information as the Registrar may require.

 

(3) The Registrar may require a medical scheme to comply with any of the following provisions regarding the proposed transaction:
(a) A report on the proposed transaction to be drawn up by an independent valuator or other competent person nominated by the Registrar at the expense of the medical schemes concerned;
(b) A copy of the exposition of the proposed transaction and of the report, if any, referred to in paragraph (a) to be forwarded by the parties concerned to every member and creditor of those medical schemes;
(c) The publication of the proposed transaction of the parties concerned in a form approved by the Registrar in the Gazette and in such newspaper or newspapers as the Registrar may direct.

 

(4) Copies of the exposition of the proposed transaction and of the report, referred to in subsection (3)(a) shall, for such period but not less than 21 days or within such further period as the Registrar may, on request, allow, be made available for the inspection of any member or creditor of any party to the proposed transaction or by any other person or body having an interest therein—
(a) at the registered office of any medical scheme concerned;
(b) at the registered office or other principal place of business in the Republic of any other party; and
(c) at the office of the Registrar.

 

(5) A person who has an interest in the proposed transaction may, in writing, submit to the Registrar within 21 days after the period specified in terms of subsection (4), such representations concerning the transaction as are relevant to his, her or its interests.

 

(6) The Registrar shall, if he or she is satisfied that the requirements of subsection (4) have been complied with, consider the exposition of the proposed transaction and thereafter he or she may—
(a) confirm the exposition; or
(b) suggest that the parties to the proposed transaction modify the exposition in certain respects, and if they so modify the exposition he or she may confirm the exposition as modified; or
(c) decline to confirm the exposition.

 

(7) The Registrar shall not confirm the proposed exposition unless he or she is satisfied that the transaction concerned—
(a) would not be detrimental to the interests of the majority of the beneficiaries of the medical scheme or medical schemes concerned; and
(b) would not render any of the medical schemes concerned which will continue to exist if the proposed exposition is completed, unable to meet the requirements of this Act or to remain in a sound financial condition, or, in the case of a medical scheme which is not in a sound financial condition, to attain such a condition within a period of time deemed by the Registrar to be satisfactory.

 

(8) If the Registrar has declined to confirm the exposition, the parties to the proposed transaction may, after notice of not less than 14 days to the Registrar, apply to the Council for confirmation of the exposition.

 

(9) The Registrar shall be entitled to be heard personally or through a representative at any consideration by the Council of such application.

 

(10) The Council may confirm the exposition as submitted to it or with such modifications as the Council may deem fit, or decline to confirm the exposition.

 

(11) Any exposition confirmed by the Registrar or the Council in accordance with this section shall be binding on all parties concerned, and shall have effect notwithstanding any conflicting provision contained in the rules of any medical scheme concerned, in the memorandum or other document under which any other party to the transaction is constituted or in the articles of association or other rules of such party.

 

(12) Any person who is aggrieved by a decision of the Registrar in terms of subsection (6) or a decision of the Council in terms of subsection (10), may within 30 days after the date on which such decision was given, appeal against such decision to the Appeal Board or the High Court as the case may be, and the Appeal Board or the High Court may make such order as it may deem necessary.

 

(13) As soon as the exposition of the proposed transaction has been confirmed by the Registrar or the Council, as the case may be, the person controlling the amalgamated business or the person to whom any business has been transferred in terms of the transaction, as the case may be, shall within 14 days after such confirmation deposit with the Registrar a declaration, duly signed in accordance with the provisions of section 39, on behalf of each of the parties to the transaction, and also stating that, to the best of their belief, every payment made or to be made or other valuable consideration given or to be given to any person whatsoever on account of the amalgamation or transfer is fully set forth in the exposition of the proposed transaction and that all the conditions of the transaction have been complied with.

 

(14) Upon the confirmation of the exposition of a proposed transaction in accordance with the provisions of this section, the relevant assets and liabilities of the parties to the amalgamation shall vest in and become binding upon the amalgamated body or, as the case may be, the relevant assets and liabilities of the party effecting the transfer shall vest in and become binding upon the party to which transfer is effected.

 

(15) The officer in charge of a deeds registry in which is registered any deed or other document relating to any asset which is transferred in accordance with the provisions of subsection (14), shall, upon the production to him or her by the person concerned of such deed or other document and of a certificate by the Registrar of the confirmation of the transaction of amalgamation or of transfer, as the case may be, make the endorsements upon such deed or document and the alterations in his or her registers necessitated by the amalgamation or transfer.

 

(16) A transaction in terms of this section shall not deprive any creditor of a party thereto, other than in his or her capacity as a member or a shareholder of such party of any right or remedy which he or she had immediately prior to the date of the transaction against any party to the transaction or against any member or shareholder or officer of such party.

 

(17) No transfer duties, registration fees or charges shall be payable in respect of a transaction contemplated in this section in the execution of a transaction entered into at the insistence of the Registrar, upon written confirmation by the Registrar that the Minister of Finance, on the recommendation of such Registrar and after consultation with the Commissioner of the South African Revenue Service, has consented to waive such duties, fees or charges.