THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable

Case no: 1000/19
and GP Case no: 31514/2018
and 33401/2018
In the matter between:

GOVERNMENT EMPLOYEES MEDICAL
SCHEME
FIRST APPELLANT

GUNVANT GOOLAB
SECOND APPELLANT

MARTHINUS JOHANNES KRUGER
THIRD APPELLANT

and

THE PUBLIC PROTECTOR OF THE REPUBLIC
OF SOUTH AFRICA
FIRST RESPONDENT

JOEL MOAGL TUMELO BENEDICT
NGWATO
SECOND RESPONDENT

THE REGISTRAR OF MEDICAL SCHEMES
THIRD RESPONDENT

THE COUNCIL FOR MEDICAL SCHEMES
FOURTH RESPONDENT

Neutral citation: Government Employees Medical Scheme and Others v The Public
Protector of the Republic of South Africa and Others (1000/2019 and 31514/2018 and
33401/2018) [2020] ZASCA 111 (29 September 2020)

Bench:
PONNAN, MBHA and
ZONDI JJA and GOOSEN and
MABINDLA-BOQWANA AJJA

Heard:
4 September 2020

Delivered: This judgment was handed down electronically by circulation to the
parties' representatives by email, publication on the Supreme Court of Appeal
website and release to SAFLII. The date and time for hand-down is deemed to be
10:00 am on 29 September 2020.

Summary: Power of Public Protector to investigate complaint – constrained by
sections 6(4) or (5) of the Public Protector Act 23 of 1994.

__________________________________________________________________

ORDER
__________________________________________________________________

On appeal from: Gauteng Division of the High Court, Pretoria (Kubushi J sitting
as court of first instance):
(a)
The appeal is upheld with costs, including those of two counsel.
(b)
The order of the court below is set aside and replaced by:

‘(i)
The application succeeds.
(ii)
It is declared that the first respondent is not empowered by sections 6(4) or (5) of
the Public Protector Act 23 of 1994 to investigate the complaint lodged by the
second respondent against the first applicant.
(iii)
The rule nisi dated 14 May 2018 issued under case number 33401/2018 is
confirmed.
(iv)
The first respondent is ordered to pay the costs of the application, inclusive of the
urgent application under case number 33401/2018. Such costs to include those
consequent upon the employment of two counsel.’

__________________________________________________________________

JUDGMENT
__________________________________________________________________
Ponnan JA (Mbha and Zondi JJA and Goosen and Mabindla-Boqwana AJJA
concurring)

[1] To be sure, the office of the Public Protector, which has been described as ‘an
indispensable constitutional guarantee’,1 is afforded sweeping powers of
investigation. But, those powers are not unconstrained. Prof Martin Krygier points
out, the rule of law ‘requires that there be no privileged groups or institutions exempt
from the scope of the law’.2 Indeed, as Prof Woolman observes, the rule of law
doctrine, which is ‘juridical, political and foundational’, and its twin, ‘the principle
of accountability, cannot function solely as constitutional values. They must form
part of the daily lived experience of most citizens and public officials’. 3

[2] The rule of law and the principle of accountability require the Public Protector
to act in accordance with the law and the Constitution. In terms of s 182(1) of
the Constitution, the Public Protector has the power to:
‘(a)
investigate any conduct in state affairs, or in the public administration in any sphere of
government, that is alleged or suspected to be improper or to result in any impropriety or prejudice;
(b)
report on that conduct; and
(c)
take appropriate remedial action.’

1 The Public Protector v Mail & Guardian Ltd [2011] ZASCA 108; 2011 (4) SA 420 (SCA) para 6.
2 Professor Martin Krygier is the Gordon Samuels Professor of Law and Social Theory and Co-Director of the Network
for Interdisciplinary Studies of Law at the University of New South Wales. Cited by S Woolman: ‘A Politics of
Accountability: How South Africa's Judicial Recognition of the Binding Legal Effect of the Public Protector’s
Recommendations Had a Catalysing Effect that Brought Down a President’ (2016) 8 CCR 155 at 156.
3 S Woolman: ‘A Politics of Accountability: How South Africa's Judicial Recognition of the Binding Legal Effect of
the Public Protector’s Recommendations Had a Catalysing Effect that Brought Down a President’ (2016) 8 CCR 155
at 156.

According
to
s
182(2)
of
the
Constitution, the Public Protector also
has the additional powers and functions prescribed by national legislation. The
Public Protector Act 23 of 1994 (the PPA) is the legislation contemplated by s 182(2)
of the Constitution. It establishes the jurisdiction of the Public Protector with respect
to categories of investigation as well as entities and conduct that may be investigated.
The powers of the Public Protector are thus derived from the Constitution and
buttressed by the detailed legal framework in the PPA.

[3] In SABC v DA,4 this court emphasised that those who govern must be held as
accountable to the law as the governed and that in that regard, the Public Protector
plays a critical role in maintaining the rule of law. In EFF 1, the Constitutional Court
confirmed the correctness of this court’s approach in SABC v DA, in holding that
‘the Public Protector’s remedial action might at times have a binding effect’.5 Since
those judgments there have been several challenges to the exercise by the
Public Protector of the powers conferred upon her and our courts have found that
she has on occasion behaved irrationally, procedurally unfairly or ultra vires.6

[4] This is yet another such challenge. It arises for consideration against the
following backdrop: The first appellant, is the Government Employees Medical
Scheme (GEMS), a medical scheme registered as such under s 24(1) of the
Medical Schemes Act 131 of 1998 (the MSA). During her lifetime, Ms Rakgahla

4 South African Broadcasting Corporation Soc Ltd and Others v Democratic Alliance and Others [2015] ZASCA 156;
2016 (2) SA 522 (SCA).
5 Economic Freedom Fighters v Speaker of the National Assembly and Others; Democratic Alliance v Speaker of the
National Assembly and Others [2016] ZACC 11; 2016 (3) SA 580 (CC) para 73.
6 See inter alia Public Protector v South African Reserve Bank [2019] ZACC 29; 2019 (6) SA 253 (CC); Economic
Freedom Fighters v Gordhan and Others; Public Protector and Another v Gordhan and Others [2020] ZACC 10;
Gordhan v Public Protector and Others [2019] ZAGPPHC 311; [2019] 3 All SA 743 (GP); Absa Bank Limited and
Others v Public Protector and Others [2018] ZAGPPHC 2; [2018] 2 All SA 1 (GP); Institute for Accountability in
Southern Africa v Public Protector and Others [2020] ZAGPPHC 64; [2020] 2 All SA 469 (GP) and President of the
Republic of South Africa v Public Protector of the Republic of South Africa and Others [2019] ZAGPPHC 368.

was a member of GEMS. Upon her
death, the second respondent, Mr
Ngwato, sought to be recognised as her ‘beneficiary’. GEMS took the view that Mr
Ngwato did not qualify pursuant to GEMS’ Rules, made under Chapter 5 of the MSA
(the Rules).

[5] According to GEMS, Mr Ngwato was unable to produce a marriage certificate
in proof of his marriage to Ms Rakgahla. Aggrieved by GEMS’ refusal to recognise
him as a beneficiary, Mr Ngwato lodged a complaint in terms of s 47 of the MSA
with the third respondent, the Registrar of Medical Schemes (the Registrar). In the
meanwhile, following a policy change by GEMS regarding the status of life partners,
the requirement of a marriage certificate had fallen away. Accordingly, on
7 December 2015 Mr Ngwato ‘was furnished with a membership certificate which
confirmed that [his] benefit date . . . was 1 June 2013’.  However, this did not entirely
satisfy Mr Ngwato. What remained, so he seems to have contended, was his
eligibility to qualify for a Government Pensions Administration Agency (GPAA)
subsidy. On 19 January 2016 the Registrar ruled against Mr Ngwato, holding that:
‘You are entitled to membership with the scheme however do not qualify for the
subsidy from GPAA, hence you will be liable for the full contribution to the scheme’.

[6] Mr Ngwato appealed to the fourth respondent, the Council for Medical
Schemes (the Council) in terms of s 48 of the MSA. On 27 October 2016 the Appeal
Committee of the Council (per Advocate Ngalwana SC) ruled against Mr Ngwato.
The Appeal Committee held:
‘3.
In his written appeal, the appellant complains about “termination” of his benefits “on the
1st of June 2013” and his “exclusion” from the scheme not “based on the rules of the scheme”.
This accords neither with the registrar’s ruling nor with the scheme’s submissions at the hearing
of the appeal. Both make it clear that the appellant is, following the passing of his life partner who

was a member of the scheme and pursuant to
rule 6.8.1 of the scheme rules, “entitled to
continued membership of the scheme without any restrictions, limitations or waiting periods”.
4.
At the hearing of the appeal, the appellant’s case mutated to claiming a subsidy from the
Government Pensioners Administration Agency. The scheme says this is not within its province.
This was explained to the appellant at the hearing and he seems to have understood it.
5.
After these issues had been explained to the appellant, he was asked whether he still
requires a formal ruling to be made. He said yes; hence this ruling.
6.
What remains for us is to confirm that the appellant is a continuing member of the scheme
and is liable for payment of contributions in terms of the scheme rules in the ordinary course.
Issues concerning subsidies by the GPAA must be taken up with the GPAA because this committee
has no jurisdiction in that regard.’

[7] In terms of s 50 of the MSA, Mr Ngwato had the right of a further appeal to
the Appeal Board of the Council. He did not exercise that right. Instead, he lodged a
complaint with the Public Protector. In an affidavit deposed to on 19 February 2016
in support of his complaint to the Public Protector, Mr Ngwato stated:
‘5.
I submit that it is very convenient and suspicious, if not arbitrary, that GEMS have now
recently issued a certificate of membership dated 7th of December 2015 stating that my benefits
were terminated on the 1st of June 2013. More than two years after the passing of my life partner,
it is further a coincidental travesty that when I complain about my cover, GEMS then conveniently
issues termination thereof.
6.
I further submit that GEMS have not given any form of reasoning for my exclusion based
on the rules of the scheme. I thus conclude that the exclusion by GEMS that I was a non-active
member as baseless and without merit and proper reasoning. I further conclude that GEMS
provided GPAA with misinformation regarding my membership, thus the negative response from
GPAA.
7.
I implore you to reconsider your advice and re-instate my benefits in terms of the rules of
the medical scheme and on the basis of my submission above.’

[8] Some 16 months were to pass
before GEMS received an email on 9
June 2017 from Mr Jeno Singh, snd Advocate and senior investigator in the office
of the Public Protector. After drawing attention to the jurisdiction of the Public
Protector, with reference to s 182 and 181(3) of the Constitution as well ss 7(4)(a)
and (b) of the PPA, the email stated:
‘6.
The Public Protector was in receipt of a complaint from Mr Benedict Ngwato (hereinafter
referred to as the Complainant). The complainant made various allegations against GEMS and the
GPAA. This office had forwarded an enquiry letter to GPAA and had received a response. Based
on the GPAA response and evidence that was submitted by the Complainant, this office closed the
file and found the complaint unsubstantiated.
7.
The Complainant has now applied for a review of the decision by this office to close his
matter.
8.
In view of the above, this office requires you to attend a meeting at the office of the Public
Protector. Some of the issues that we require clarity on are the following:
8.1
The basis for GEMS confirming that he was a member of the fund and later withdrawing
the confirmation;
8.2
The process followed by GEMS to cancel/withdraw his confirmation of his membership;
and
8.3
The 2012/2013 fund rule relied upon by GEMS to demand that he should have a valid
marriage certificate in order to be registered as a dependent.’

[9] On 13 June 2017 the third appellant, Mr Marthinus Kruger, the legal advisor
of GEMS responded as follows to Mr Singh:
‘3.
At this stage, we wish to draw your attention to the following:
i.
GEMS is a registered medical scheme in terms of the Medical Schemes Act 131 of 1998
(“the Act”);
ii.
As such, GEMS is subject and/or regulated by the Act, the Council for Medical Schemes
[which is a statutory body established by section 3 of the Act] as well as its own Scheme Rules
[which is registered in terms of the Act];

iii.
GEMS is neither an organ of state, nor
a public entity, nor falling within any sphere
of government;
iv.
GEMS does not perform a public function nor does it handle any public funds; and
v.
Although GEMS’ membership consists of government employees, it does not detract from
the fact that it is a private body incorporated in terms of and regulated by the Act.
4.
As a result of the aforementioned, we are advised that your office does not have the
necessary jurisdiction, in terms of sections 6(4) of (5) of the Public Protector Act 23 of 1994, to
entertain the current complaint which you are purportedly investigation as set out in your letter.
We accordingly hold the view that any investigation into the complaint made to the Public
Protector cannot proceed due to the Public Protector not having the necessary jurisdiction to do
so.
5.
Should you however hold an alternative view; we invite you to engage us on the question
of jurisdiction.
6.
Notwithstanding the aforesaid, and without any prejudice to GEMS’ rights, GEMS wishes
to be transparent in its dealing with the Public Protector, in that respect, GEMS is prepared, without
any prejudice to its rights, to provide the Public Protector with an overview of the subject matter
of the current complaint, provided that should the Public Protector seek such disclosure in the
absence of having the necessary jurisdiction as aforesaid, that such disclosures be treated as
confidential.
7.
We also wish to advise that Mr. Ngwato lodged a complaint stemming from the same
facts/conduct with the Registrar for Medical Schemes in terms of section 47 of the Act under case
number CMS55375, in which matter the Registrar ruled against Mr. Ngwato. Mr Ngwato
subsequently appealed the decision in terms of section 48 of the MSA and the Council for Medical
Schemes’ Appeal Committee dismissed his appeal and found that the Scheme acted correctly and
in accordance with its own (registered) Scheme Rules. GEMS accordingly considers the matter
closed, the statutory body with jurisdiction over the Scheme having made a final and binding
finding in its favour.’

[10] On 21 June 2017 an informal meeting was held between Mr Singh and
Mr Kruger. According to GEMS, the former refused to discuss whether the
Public Protector had the requisite jurisdiction to investigate the complaint. Nothing

was heard thereafter for approximately
10 months, until 24 April 2018, when
two subpoenas purportedly issued under s 7(4)(a) of the PPA were served on Mr
Kruger and the second appellant, Dr Gunvant Goolab, the Principal Officer of
GEMS.

[11] The subpoenas required Mr Kruger and Dr Goolab to appear in person before
the Public Protector on 18 May 2018, as also, to produce a list of specified
documents. Each subpoena further stated:
‘6.6
On 9 June 2017, an enquiry letter was forwarded to Mr Kruger of GEMS setting out the
complaint and requested a response to questions posed. On 13 June 2017, Mr Kruger responded
and inter alia stated that the PPSA does not have the necessary jurisdiction to investigate GEMS.
Furthermore, GEMS felt that they considered the Complainant’s matter closed as the statutory
body (CMS) with jurisdiction over the Scheme had made a final and binding finding in its favour.
A meeting was thereafter requested with Mr Kruger to discuss the matter.
6.7
A meeting was held with Mr Kruger on 21 June 2017 and the PPSA investigative team.
The case was discussed and documents were requested from GEMS. Mr Kruger once again
mentioned the no-jurisdiction of the PPSA office to investigate the matter and advised that GEMS
will not be handling any documents over to the PPSA investigation team.
6.8
On 10 April 2018, a legal opinion was obtained from Mr Ntsumbedzeni Nemasisi: Senior
Manager Legal Services: PPSA which inter alia stated that the PPSA has the necessary jurisdiction
to investigate any conduct of GEMS.’

[12] On 9 May 2018 GEMS applied to the Gauteng Division of the High Court,
Pretoria for an order in the following terms (the main application):
‘1.
Declaring that the First Respondent does not have the statutory authority and/or jurisdiction
in terms of the Public Protector Act, No. 23 of 1994, or otherwise, to investigate and entertain the
Second Respondent’s complaint lodged against the First Applicant under file reference number:
7/2-02447/16;

2.
In the event of Prayer 1 being granted,
setting aside any steps taken by First
Respondent in pursuance of the purported investigation of the complaint referred to in paragraph
1 above, including the subpoenas issued by the First Respondent to the Second Applicant and the
Third Applicant under file reference no: 7/2-024477/16.’
The Public Protector was cited as the first respondent. Mr Ngwato, the Registrar and
Council were cited respectively as the second to fourth respondents. Only the
Public Protector opposed the application.

[13] At about the same time as the issuance and service of the main application,
the attorney of record for GEMS addressed a letter to the Public Protector requesting
an undertaking that the hearings scheduled for 15 May 2018 will be stayed pending
finalisation of the main application, and that Mr Kruger and Dr Goolab be excused
from attendance as required by the subpoenas. The response on 10 May 2018 from
Mr Nemasisi was to assert that they viewed the main application ‘as an attempt to
frustrate the investigation, in violation of s 181(4) of the Constitution’ and that ‘the
subpoena hearing, scheduled for 15th May 2018, may only be suspended or stayed
upon receipt of all the documents subpoenaed’.

[14] The next day, GEMS’ attorney recorded in a letter to the Public Protector that:
(i) the rejection of GEMS’ request that the subpoena hearings be postponed until
finalisation of the main application is unreasonable; (ii) the complaint has in any
event become moot as Mr Ngwato has since, due to regulatory changes, been
recognised as a member, it was thus not clear why the office of the Public Protector
persists with the investigation of the complaint; (iii) GEMS is of the view that it has
just cause as contemplated in s 11(3) of the PPA, not to comply with the directions
issued under ss 7(4)(a) and 7(5) until the jurisdiction of the Public Protector to
investigate the complaint has been determined by the court in the main application;

and, (iv) GEMS and any person
subpoenaed to testify would for
obvious reasons be manifestly prejudiced should they be compelled to participate in
an investigation, which a court may determine the Public Protector lacks jurisdiction
to investigate. It was thus stated that GEMS will not be delivering the documents
sought or permitting Mr Kruger or Dr Goolab to attend on the office of the Public
Protector for the purposes referred to in the subpoena. The Public Protector was once
again requested to reconsider her position and consent to the postponement of the
hearings scheduled for 15 May 2018.

[15] That evening, at 6.19 pm, GEMS’ attorney received the following response
from Mr Nemasisi:
‘5.
We wish to place on record that the Public Protector has, in accordance with her statutory
power (section 7(4)(a) of the Public Protector Act), subpoenaed the documents which has a bearing
on the matter being investigated, which documents is in possession or under control of Dr Gunvant
Golab and Mr Marnus Kruger. In terms of the aforesaid subpoenas, the documents listed therein
must be produced to the Public Protector on 15th May 2018. Should Dr Gunvant Goolab and Mr
Marnus Kruger refused and/or failed (sic) to comply with the above-mentioned directives
(subpoenas), they shall be guilty of an offense [sic], in terms of section 11(3) of the Public
Protector Act.
6.
We further wish to place on record that production of documents by Dr Gunvant Goolab
and Mr Marnus Kruger, which has a bearing on the matter being investigated has nothing to do
with the jurisdictional challenge by your client.
7.
In fact, Dr Gunvant Goolab and Mr Marnus Kruger are neither the Applicants nor the
Respondents in the foresaid court application brought by GEMS. Accordingly, your client (GEMS)
has no locus standi to challenge the subpoenas. As a result of the above, Dr Gunvant Goolab and
Mr Marnus Kruger cannot rely on your client’s court application as a just cause to defy the lawful
directives of the Public Protector.
8.
Lastly, we wish to place on record that bringing an application to court challenging the
jurisdiction of the Public Protector to investigate does not automatically suspend the investigation,
which is a constitutional mandate of the Public Protector. Accordingly, Dr Gunvant Goolab and

Mr Marnus Kruger have both constitutional
and statutory obligations (in terms of
section 181(4) of the constitutional and section 7(4)(a) of the Public Protector Act respectively),
not to interfere with the functioning of the Public Protector and to comply with the Public
Protector’s directives.
9.
It is not clear, from your aforesaid letter, as to how the production of the documents will
affect any of your client’s rights, as the matter is still under investigation. Instead, the complainant
will suffer severe prejudice for undue delay of finalization of his complaint.
10.
In light of the above, we wish to place on record that the subpoenas are directed to
Dr Gunvant Goolab and Mr Marnus Kruger and therefore, the instruction from your client (GEMS)
regarding the refusal to produce the documents is legally misplaced as you have no mandate to act
on behalf of Dr Gunvant Goolab and Mr Marnus Kruger.
11.
In paragraph 4 of your letter dated 10th May 2018, your requested an undertaking that
Dr Gunvant Goolab and Mr Marnus Kruger will no longer be required to appear in person before
the Public Protector on 15th May 2018. In our aforesaid letter, we indicated that Dr Gunvant Goolab
and Mr Marnus Kruger may not have to appear before the Public Protector on 15th May 2018, only
if the documents subpoenaed are delivered to the Public Protector. We therefore reiterate the
contents of our letter dated 10th May 2018.
12.
Should your client persist with its court interdict, as threatened, we reserve our rights to
file an application for contempt of the Public Protector against Dr Gunvant Goolab and
Mr Marnus Kruger.’

[16] Mr Kruger and Dr Goolab felt compelled to approach the high court as a
matter of urgency at 2pm on 14 May 2018 (the urgent application) for an order in
the following terms:

‘3.
That leave be granted to the Applicants to intervene and be joined as Second and Third
Applicants respectively, in the pending application under case number 31514/2018;
4.
That the subpoenas issued by the First Respondent to the First and Second Applicants
respectively, under file reference no: 7/2-024477/16, be suspended pending finalisation of the
application under case number 31514/2018;
5.
That the costs of this application be reserved for adjudication by the court in the application
under case number: 31514/2018.’

The Public Protector filed a notice of
intention to oppose the urgent
application. But, by the time the matter came to be heard, failed to file an answering
affidavit. The urgent application succeeded before Davis J.

[17] Both the main and urgent applications eventually served before Kubushi J,
who, on 27 June 2019: (a) dismissed the main application; (b) set aside the order
suspending the subpoenas and (c) ordered the costs of both the main and urgent
applications, inclusive of two counsel, to be paid by the appellants jointly and
severally. On 3 September 2019, Kubushi J granted leave to GEMS, Dr Goolab and
Mr Kruger (collectively referred to as the appellants) to appeal to this court.

[18] In finding for the Public Protector, the high court observed ‘I do not think that
a dispute exists between the parties as to whether GEMS is an entity that can be
investigated by the Public Protector’. It reasoned ‘even though it is not a government
or an organ of state, GEMS performs a public function in terms of national
legislation and its functions are public in nature’. The high court took the view that:
‘[56] Although GEMS is a medical scheme, like other medical schemes . . . GEMS is unique.
GEMS was established by government for government employees, using public funds and
resources to undertake a responsibility of Government, as an employer, to public service
employees. Government as employer contributes to the medical scheme. Government has a right
to nominate 50% of the members of the Board of Trustees who control the scheme. GEMS, as
such, is a public resourced entity and falls to be investigated by the Public Protector to ensure
accountability.’
It accordingly concluded:
‘[57] . . . evidently, an investigation of the nature of Mr Ngwato’s complaint carries with it an
element of public interest [and that his] removal equate[d] to the factors stated in section 6(4) and
(5) of the [PPA].’

On the view that I take of the matter, the
approach of the high court cannot be
supported on appeal.

[19] Section 6 of the PPA is headed: ‘Reporting matters to and additional powers
of Public Protector’. Section 6(4)(a) provides that ‘the Public Protector shall be
competent to investigate on her own initiative or on receipt of a complaint any
alleged’:
‘(i)
maladministration in connection with the affairs of government at any level;
(ii)    abuse or unjustifiable exercise of power or unfair, capricious, discourteous or other
improper conduct or undue delay by a person performing a public function;
(iii)    improper or dishonest act, or omission or offences referred to in Part 1 to 4, or section
17, 20 or 21 (in so far as it relates to the aforementioned offences) of Chapter 2 of the Prevention
and Combating of Corrupt Activities Act, 2004, with respect to public money;
(iv)
improper or unlawful enrichment, or receipt of any improper advantage, or promise of such
enrichment or advantage, by a person as a result of an act or omission in the public administration
or in connection with the affairs of government at any level or of a person performing a public
function; or
(v)
act or omission by a person in the employ of government at any level, or a person
performing a public function, which results in unlawful or improper prejudice to any other person.’

[20] GEMS has not been accused of maladministration, the unjustifiable exercise
of power in the performance of a public function, improper or dishonest actions or
improper or unlawful enrichment. Subsections (i), (iii) and (iv) of s 6(4)(a)
accordingly need not detain us. The argument on appeal was confined to ss
6(4)(a)(ii), 6(4)(a)(v) and 6(5)(b) of the PPA, which so counsel submitted,
empowered the Public Protector to investigate Mr Ngwato’s complaint. I shall
accordingly restrict myself to the sweep of those provisions.

[21] Common to both ss 6(4)(a)(ii)
and (v) is the expression ‘performing
a public function’. The debate thus centred on whether it can be said that GEMS
performs a public function. ‘Medical scheme’ is defined in the MSA to mean any
medical scheme registered under s 24(1). A medical scheme is a sui generis non-
profit entity, which operates for the benefit of its members. According to the MSA,
no person shall carry on the business of a medical scheme unless registered as such.
The functions and powers of a medical scheme are limited by its registered rules and
the MSA.

[22] The business of a medical scheme does not appear to encompass the
performance of a public or government function or the exercise of a public power.
The relationship between members and the scheme is essentially one of a contractual
nature. The rules of a medical scheme and any amendment thereof is binding on the
medical scheme concerned, its members, officers and any person who claims any
benefit under the rules or whose claim is derived from a person so claiming.7 GEMS
is a restricted medical scheme and only employees qualifying to be registered as
members and their dependants may be registered as beneficiaries of the scheme. The
Rules are thus not of general application. They only apply to a restricted class of
persons. It is so that membership of GEMS is restricted to government employees.
But such membership is not compulsory.

[23] GEMS does not itself provide a health service. Like other medical schemes,
it operates rather in the nature of a health insurance. As Rule 5.1 makes plain, in
exchange for the payment of a premium, GEMS ‘undertakes liability in respect of
health and health-related expenses in respect of its members and their dependants’.

7 Section 32 of the Medical Schemes Act.

Failure by a member to pay any amount
due may result in the suspension or
termination of membership as provided for in the Rules. Accordingly, complaints
arising from the Rules do not concern the general public. They remain domestic in
nature and cannot be described as the exercise of a public power.

[24] Moreover, Chapter 10 of the MSA creates an array of complaint and appeal
procedures for aggrieved members. These include the lodging of a complaint in
terms of s 47 and the appeal procedures provided for in ss 48, 49 and 50. In terms of
ss 42, 43, 45 and 46, far-reaching powers are given to the Registrar to inter alia
conduct inspections into the affairs of medical schemes and to obtain information.
GEMS is a medical scheme no different to other medical schemes and governed by
the same regulatory framework. Like all other medical schemes, GEMS is subject to
the MSA as well as its registered rules and it is regulated by the Council.

[25] According to the high court, unlike other medical schemes, GEMS, may be
investigated by the Public Protector. In that it has been singled out by the high court.
Thus, solely in respect of GEMS, and not any other medical scheme, aggrieved
members may lodge a complaint with the Public Protector, thereby rendering
nugatory the complaints procedure prescribed by the MSA. It will be recalled that in
this case, Mr Ngwato had yet a further appeal in terms of the MSA. He eschewed
that in favour of a complaint to the Public Protector. The high court gave no attention
to the fact that Mr Ngwato had failed to exhaust his internal remedies. Nor did it
consider when precisely an aggrieved member may have recourse to the office of
the Public Protector. It is thus unclear from the high court’s judgment, whether, as
occurred here, an aggrieved member may in addition to a complaint to the
Public Protector also avail him - or her - self of the complaints procedures envisaged
in the MSA. Were that to be the case, it could lead to parallel investigation processes,

with the potentiality for conflicting
decisions. This clearly could not have
been the intention of the legislature in enacting Chapter 10 of the MSA.

[26] Turning to s 6(5)(b). Section 6(5) of the PPA provides:
‘In addition to the powers referred to in subsection (4), the Public Protector shall . . . be competent
to investigate any alleged –
(a) maladministration in connection with the affairs of any institution in which the State is the
majority or controlling shareholder or of any public entity as defined in section 1 of the Public
Finance Management Act . . .
(b) abuse or unjustifiable exercise of power or unfair, capricious, discourteous or other improper
conduct or undue delay by a person performing a function connected with his or her employment
by an institution or entity contemplated in paragraph (a)
. . . .’
Two issues occupied our attention in debate with counsel: first, whether GEMS
conducted itself in a manner contemplated in subsection (b); and, second, whether it
is an ‘institution in which the State is the majority or controlling shareholder’ as
contemplated in subsection (a).

As to the first:
[27] In the answering affidavit filed on behalf of the Public Protector in the main
application, Mr Singh stated:
‘40.
The issue which stood-out, was the retention of membership hinged on the registration of
customary marriage. It is this issue, amongst others, which attracted the attention of the
Public Protector because non-registration of customary marriages has often been used in
Public Administration as a basis of numerous decisions, which have since been pronounced by
Courts as unlawful.
41.
Thus, even upon being advised that the matter had since been partial resolved with
[Mr Ngwato], the Public Protector exercised [her] discretion to continue with the investigation
with the intention of understanding the decisions and the reasons proffered by GEMS.

42.
The complaint . . . may very well be an
isolated event, however the facts and
information gathered thus far, illustrate a real likelihood that the decision could affect a broader
society of the persons disadvantaged by the non-registration of their customary marriages.’

[28] There are several difficulties with the version advanced by Mr Singh. First, as
best as one can discern, the Public Protector appears to have understood
Mr Ngwato’s complaint as one relating to GEMS’ failure to recognise his customary
marriage. But, that was not the subject of his complaint. His complaint was that
GEMS had ‘not applied the scheme rules when deliberating on [his] matter’. The
dispute between him and GEMS therefore turned on the interpretation of the rules,
not any conduct of the kind specified in s 6(5)(b).

[29] Second, Mr Singh states that it was the ‘customary marriage’ issue, amongst
others, that attracted the attention of the Public Protector. But, that is simply not so,
because no other issue had been alluded to by the Public Protector in any of the
papers filed of record in this matter. And, so the only issue as conceived by the
Public Protector that warranted investigation, would appear to have been GEMS’
refusal to recognise a customary marriage, which as I have already pointed out was
not the complaint raised by Mr Ngwato.

[30] Third, Mr Singh asserts that the ‘non-registration of customary marriages has
often been used in Public Administration as a basis of numerous decisions, which
have since been pronounced by Courts as unlawful’. However, no evidence is
adduced in support of that claim. But, even if correct, it is unclear what that has to
do with GEMS or why it was thought appropriate that the office of the
Public Protector should investigate GEMS in that regard. It is doubtful that
Mr Ngwato’s complaint could form the springboard for a wider investigation and if

so, the scope and ambit of the envisaged
investigation.
An
industry-wide
investigation would surely be out of the question, because the Public Protector has
never contended that she had the competence to investigate any other
medical scheme, but GEMS. In any event, if our courts have already pronounced on
the issue, as Mr Singh asserts, it is unclear what remains for investigation.

[31] Fourth, it is asserted that the matter had been partially resolved. Once again,
that is inaccurate. Certainly from the perspective of GEMS, the dispute relating to
the interpretation of the scheme rules had been fully resolved. All that remained,
related to the GPAA subsidy. That was also the view of the Registrar and Appeal
Committee for the Council. Indeed, Advocate Ngalwana stated as much in his ruling
on behalf of the Appeal Committee. That, as well, appears to have been the initial
view of the Public Protector. When Mr Singh first wrote to Mr Kruger on 9 June
2017, he stated:
‘. . . The complainant made various allegations against GEMS and the GPAA. This office had
forwarded an inquiry letter to GPAA and had received a response. Based on the GPAA response
and evidence that was submitted by the complainant, this office closed the file and found the
complaint unsubstantiated.’

[32] Fifth, it is claimed that the Public Protector exercised her discretion to
continue with the investigation. To the extent that the Public Protector has a
discretion, such discretion only arises to be exercised in circumstances where she
has the requisite jurisdiction. She may in the exercise of her discretion decline to
investigate a matter which falls within the scope and ambit of her jurisdiction, but
she may not in the exercise of her discretion assume to herself a jurisdiction that the
PPA does not give to her. Absent jurisdiction, she has no discretion. Jurisdiction is
thus a necessary prerequisite for the exercise of any discretion. What is more, from

the correspondence that had been
exchanged, the Public Protector
already well knew the ‘decisions and reasons’ proffered by GEMS.

[33] Sixth, if this is indeed ‘an isolated incident’, as Mr Singh describes it, there
would be no continuing public interest in the matter (which had in any event already
been resolved between GEMS and Mr Ngwato) or warrant for the Public Protector
continuing with the investigation. Mr Ngwato himself had no further interest in the
matter. Certainly, as between him and GEMS the complaint had become moot. If,
however, there is evidence of a broader societal interest, then such evidence should
have been adduced. Had there been ‘facts and information’ of others having been
‘disadvantaged’, as Mr Singh claims, that would mean that this was not an isolated
incident. In the absence of those facts or information, it is difficult to understand
what these matters have to do with GEMS or what remedial action was being
contemplated by the Public Protector that would extend beyond GEMS and the
immediate complaint. Indeed, if the Public Protector had confined herself to the facts
relating to Mr Ngwato’s complaint, it would not have had any implication for the
general public.

[34] Seventh, generally speaking, a complaint should not be entertained ‘unless it
is reported to the Public Protector within two years from the occurrence of the
incident or matter concerned’ (s 6(9)). The Public Protector does have a discretion,
however, where special circumstances exist, to entertain complaints that are older
than two years. Here, the incident giving rise to the complaint occurred in June 2013.
It was only lodged sometime after February 2016. Despite the point having been

pertinently raised by the appellants, no
special
circumstances
as
contemplated in s 6(9) of the PPA were raised by the Public Protector.8

[35] Thus, even on the Public Protector’s own showing, she simply failed to bring
herself within the ambit of s 6(5)(b). It is manifest that the Public Protector’s
stubborn and irrational insistence on continuing with her investigation could hold no
benefit for the public at large, or for that matter even Mr Ngwato himself. In other
words, it is not aimed at, nor is there any need to protect the public against the
conduct which informed the complaint.

As to the second:
[36] GEMS is a body corporate.9 It is managed by a board of twelve trustees. It is
so that 50% of the trustees are appointed by the Minister. But, the remaining 50%
are elected by the members of the scheme. In terms of the rules: (i) ‘the Board is
responsible for the proper and sound management of the Scheme’; (ii) the trustees
are required to ‘act with due care, diligence, skill and in good faith and run the
Scheme for the benefit of the Beneficiaries’; and, (iii) any trustee ‘found not to be a
fit and proper person may be removed as such by the Board’. It thus follows that the
mere fact that the Minister may appoint 50% of the trustees, does not mean that the
government exercises control over the affairs of GEMS. In any event, although the
right to appoint 50% of the trustees is given to the Minister by the internal rules of
GEMS, those rules may be changed by the Board of Trustees, without reference to
the Minister.

8 In Gordhan v The Public Protector and Others [2019] ZAGPPHC 311; [2019] 3 All SA 743 (GP) paras 14-20, the
court found that it is incumbent upon the Public Protector to set out special circumstances why a complaint or matter
is entertained by her when it is reported to her more than two years after the occurrence of the incident or matter
concerned, as is contemplated in s 6(9) of the Public Protector Act.
9 Pennington v Friedgood 2002 (1) SA 251 (C) para 36.

[37] In Calibre Clinical Consultants (Pty) Ltd v National Bargaining Council for
the Road Freight Industry [2010] ZASCA 94; 2010 (5) SA 457 (SCA), this court
doubted whether a body can be said to exercise public powers or perform a public
function only because the public has an interest in the matter. The court held that
when procuring services to manage its AIDS programme and ‘wellness fund’, the
respondent Bargaining Council had been performing a ‘quintessentially domestic
function’ rather than exercising a public power. Nugent JA stated (para 42):
‘ . . . When implementing such a project a bargaining council is not performing a function that is
“woven into a system of governmental control” or “integrated into a system of statutory
regulation”. Government does not “regulate, supervise and inspect the performance of the
function”, the task is not one for which “the public has assumed responsibility”, it is not “linked
to the functions and powers of government”, it is not “a privatisation of the business of government
itself”, there is not “potentially a governmental interest in the decision-making power in question”,
the council is not “taking the place of central government or local authorities”, and most important,
it involves no public money. It is true that a government might itself undertake a similar project
on behalf of the public at large – just as it might provide medical services generally and pensions
and training schemes to the public at large – but the council is not substituting for government
when it provides such services to employees with whom it is in a special relationship.’

[38] Accordingly, the nature of the complaint as well as the nature of the power
exercised by GEMS, has the consequence that the jurisdictional preconditions for an
investigation in terms of ss 6(4) and (5) have not been met. The Public Protector
accordingly does not have the statutory power to investigate the complaint. It follows
that the high court’s conclusion that ‘an investigation should be undertaken [by the
Public Protector] to determine whether or not the exclusion was unlawful or
improper prejudice to Mr Ngwato’, cannot be endorsed. In the result, GEMS’ main
application ought to have succeeded before the high court.

[39] The urgent application remains. In that regard, the high court recorded:
‘[15] The Public Protector’s argument, on the other hand, is that the issue of the subpoenas
should depend on the outcome of the main application: if the investigation by the Public Protector
is found to be lawful the subpoenas should stand; and, if the Public Protector is not authorised, the
subpoenas cannot stand as the substratum shall have fallen off. The subpoenas, it was argued,
could only stand as long as the investigation stands.
[16] As regards the issue of cost, the Public Protector’s argument is that cost of the interlocutory
application should be cost in the cause and the party who succeeds in the main application should
be awarded those costs.’
The high court agreed with those submissions. It took the view, wrongly I suggest,
that the challenge to the issuance of the subpoena had been subsumed under the main
application. It thus did not enter into the substantive merits of the urgent application.

[40] The Public Protector adopted the stance in the main application that GEMS
did not have the necessary locus standi to seek to set aside the subpoenas. That
obliged Dr Goolab and Mr Kruger to bring the urgent application to be joined as
applicants in the main application and obtain interim relief for the suspension of the
subpoenas pending finalisation of the main application. In support of the urgent
application, Dr Goolab stated:
‘5.11 Since June 2017, the purported investigation . . . remained dormant and nothing was heard
from the [Public Protector] who seemingly took no steps to advance the investigation. The
interaction created the impression that [she] had accepted the fact that she does not have the
necessary jurisdiction to entertain the complaint and pursue the investigation.
5.12
However, more than [10] months later, the [Public Protector], out of the blue and without
any prior warning, caused two subpoenas . . . to be issued . . .
5.13. Ex facie . . . both the subpoenas, the [Public Protector], no doubt informed by her own
uncertainty regarding her jurisdiction to entertain the complaint and pursue the investigation,
obtained a legal opinion from one of her own employees i.e not independently, which employee

concluded, for reasons not divulged . . . that
[she] had the necessary jurisdiction to
investigate any conduct of [GEMS].
5.14
In other words, having been satisfied that the investigation does not require any urgent
attention, the [Public Protector] leisurely dealt with the matter until 10 April 2018, whereafter she
inexplicably decided that the complaint has become so urgent that it justified the issuing of
subpoenas and the scheduling of hearings as a matter of urgency.
. . .
5.16. Since clarity on the dispute is of material importance not only to the parties, but also to the
medical schemes industry and its regulatory authority, [GEMS] issued the main application to
settle their dispute.
5.17. A ruling on the main application will also be manifestly in the interest of the
[Public Protector] and the public at large. Should [GEMS] be successful in the main application,
the public purse will be spared the financial implications of fruitless expenses emanating from an
illegal investigation. Likewise, the Applicants will be protected from being subjected to an illegal
investigation and the financial and other ramifications, such as applications for contempt of court
and possible imprisonment which they are probably already been threatened with.’

[41] The Public Protector did not file an answering affidavit in the urgent
application. There was thus nothing to gainsay Dr Goolab’s version. In an
uncommissioned statement filed on behalf of the Public Protector in the urgent
application, Mr Singh stated:
‘44
. . . I thus submit that the Public Protector only has to show to jurisdictional facts, which
are that:
44.1
There is a pending investigation, (whether or not such investigation is correct or incorrect
in law is irrelevant), and
44.2
A particular individual . . . has, in his possession or control, documents relevant to the
investigation.
. . .
46.
Thus on every manner of interpretation, the Applicants are obliged to comply with
Section 7(4) of the Public Protector Act. The case advanced in the Applicant’s founding affidavit
does not make out an exemption from complying with the obligation.

47.
The Public Protector is a constitutional
institution required to exercise its powers
and perform its functions without fear, favour or prejudice. The Applicants are prohibited, in terms
of section 181(4) of the Constitution, from interfering with the functioning of the Public Protector.
48.
In the premises and in order to give effect to the constitutional and statutory obligations,
the Applicants must comply with the subpoenas without any further delay.’

[42] I have referred to Mr Singh’s uncommissioned statement because it
demonstrates the fallacy in the Public Protector’s approach. This was consistent as
well with the view articulated earlier by Mr Nemasisi that the production of the
documents sought by the Public Protector had nothing to do with the jurisdictional
challenge, the subject of the main application and, that Dr Goolab and Mr Kruger
had no choice but to comply with the subpoena. It is difficult to discern precisely
what Mr Singh meant by ‘a pending investigation (whether or not such investigation
is correct or incorrect in law is irrelevant)’. That assertion is alarming. Surely, it is
not irrelevant whether or not a pending investigation accords with the law. Equally
untenable is the assertion that ‘on every manner of interpretation, [they] are obliged
to comply with section 7(4) of the Public Protector Act’. It goes without saying that
the Public Protector cannot lawfully embark on an investigation which does not fall
within her statutory remit. Such an investigation would be unlawful. And, if such an
investigation would be unlawful, so too would the purported exercise of her powers
of subpoena in pursuance of such an investigation.

[43] The attitude of the officials in the office of the Public Protector appears to
have been that their mere say-so that the Public Protector is empowered to
investigate the complaint should carry the day. Such an attitude ignored the fact that
there was a challenge pending before the high court to settle the jurisdiction of the
Public Protector to investigate the complaint in question. Given the lengthy period

of time that had already elapsed, and the
fact that the complaint was no longer
of any moment to Mr Ngwato, it is unclear why complying with the subpoena could
not wait. What else, it must be asked, were the appellants to do? Unlike in the
SABC v DA,10 the appellants did not sit idly by, but had moved the court for relief.
But, that seemed to matter not to the Public Protector. Insisting on compliance with
the subpoenas whilst the question of her jurisdiction remained to be determined by
the high court, leaves one with the impression that the subpoenas were intended to
cow the appellants into submission. Given the wide powers in her arsenal, including
interrogations, contempt 11 and imprisonment,12 the Public Protector appeared not to
appreciate the extent to which the appellants’ constitutional rights were being
affected. For as long as what may have turned out to have been an unlawful
investigation was allowed to continue, the insistence that the documents sought had
nothing to do with the jurisdictional challenge and, that Dr Goolab and Mr Kruger
could suffer no prejudice in complying with the subpoena, was misconceived. There
is much to be said for the appellants’ argument that for so long as the jurisdiction of
the Public Protector remained to be settled by the court in the main application, the
coercive subpoena power was invoked in bad faith or with an ulterior purpose or in
a manner that abuses the power to subpoena. But, it is perhaps not necessary to go
that far.

[44] Because subpoena powers are extraordinary coercive powers, they ‘are
generally reserved for courts’.13 This means that where the power is granted to a
body other than a court, the power should be interpreted restrictively. Subpoenas

10 South African Broadcasting Corporation Soc Ltd and Others v Democratic Alliance and Others [2015] ZASCA
156; 2016 (2) SA 522 (SCA).
11 See ss 7 and 9 of the Public Protector Act 23 of 1994 (the PPA).
12 Section 11(4) of the PPA.
13 President of the Republic of South Africa and Others v South African Rugby Football Union and Others (CC) 2000
(1) SA 1 (CC) para 176.

should accordingly only be used where
‘there is an appreciable risk, to be
judged objectively’ that the evidence cannot be obtained by following a less invasive
route.14 In Special Investigating Unit v Nadasen 2002(1) SA 605 (SCA) para 5, it
was stated:
‘A unit such as the appellant is similar to a commission of inquiry. It is as well to be reminded, in
the words of Corbett JA in S v Naude 1975 (1) SA 681 (A) 704 B-E, of the invasive nature of
commissions, how they can easily make important inroads upon basic rights of individuals and
that it is important that an exercise of powers by a non-judicial tribunal should be strictly in
accordance with the statutory or other authority whereby they are created. The introductory part
of s 4(1) of the Act emphasises the point. This accords with the approach of the Constitutional
Court (South African Association of Personal Injury Lawyers v Heath and Others supra par 52).
Appellant's reliance upon a "liberal" construction (meaning in the context of the argument
"executive-minded”) is therefore misplaced. A tribunal under the Act, like a commission, has to
stay within the boundaries set by the Act and its founding proclamation; it has no inherent
jurisdiction and, since it trespasses on the field of the ordinary courts of the land, its jurisdiction
should be interpreted strictly (cf Fey NO and Whiteford NO v Serfontein and Another 1993 (2) SA
605 (A) 613F-J).’

[45] Like the Special Investigating Unit in Nadasen’s case supra, the Public
Protector also has no inherent jurisdiction and must exercise her powers within the
confines of the PPA. Section 7(4)(a) of the PPA provides:
‘For the purposes of conducting an investigation the Public Protector may direct any person to
submit an affidavit or affirmed declaration or to appear before him or her to give evidence or to
produce any document in his or her possession or under his or her control which has a bearing on
the matter being investigated, and may examine such person.’
Section 7(4)(a) must be read with s 7(5), which provides:
‘A direction referred to in subsection (4)(a) shall be by way of a subpoena containing particulars
of the matter in connection with which the person subpoenaed is required to appear before the

14 Thint (Pty) Ltd v National Director of Public Prosecutions and Others, Zuma and Another v National Director of
Public Prosecutions and Others (CC) [2008] ZACC 13; 2009 (1) SA 1 (CC) para 125.

Public Protector and shall be signed by the
Public Protector and served on the person
subpoenaed either by a registered letter sent through the post or by delivery by a person authorised
thereto by the Public Protector.’

[46] Counsel for the Public Protector suggested that the PPA confers wide and
expansive powers of subpoena on the Public Protector. But, those powers are not
unbounded. In terms of s 7 of the PPA, the Public Protector is granted the power, on
her own initiative or on receipt of a complaint or an allegation or on the ground of
information that has come to her knowledge and which points to conduct such as
referred to in ss 6(4) or (5) to conduct a preliminary investigation for the purpose of
determining the merits of the complaint, allegation or information and the manner
in which the matter concerned should be dealt with. Having initiated an
investigation, the Public Protector may decide that she possesses sufficient evidence
to warrant further investigation. To that end, the Public Protector possesses the
ability to subpoena any person to provide evidence or submit affidavits. It must be
accepted that without this power her ability to conduct meaningful investigations
could well be rendered illusory.

[47] However, s 7(1)(a) expressly qualifies that the investigation must relate to
conduct such as referred to in ss 6(4) or (5) of the PPA. The Public Protector’s power
of subpoena is thus dependent upon the existence of a complaint, allegation and the
like, which points to conduct referred to in ss 6(4) or (5) of the PPA. Until then, no
licence exists for the resort to a subpoena. The power of subpoena is thus not an
independent, self-standing power as appears to have been supposed on the part of
officials in the office of the Public Protector. What is more, based on considerations
of principle, Professor De Vos suggests that the provisions of the PPA are reasonably
capable of an interpretation that safeguards the rights of those subpoenaed, by

allowing for a subpoena as a last resort
and only after a decision has been
made by the Public Protector to conduct a full investigation.

[48] In this regard Prof De Vos states:
‘. . . During a preliminary investigation no decision has been taken to investigate a matter. The
preliminary investigation is exactly aimed at deciding whether there is a case to be answered and
whether it should be pursued. During this phase it is not possible for the Public Protector to inform
a person with any degree of precision (if at all) what is being investigated (as no decision has been
taken to investigate anything). The person may well be left in the dark as to why she has been
subpoenaed and this will be potentially extremely disadvantageous to the witness, who may expose
herself to criminal prosecution for making false statements.
The witness is also unlikely to be able to establish whether he or she runs the risk of incriminating
themselves and whether there is “just cause” to refuse to honour the subpoena. There is a grave
danger that subpoenas issued during a preliminary investigation will be over-broad (see Tulip
Diamonds FZE v Minister for Justice and Constitutional Development and Others on over-broad
subpoenas) as the Public Protector will not be in a position to tell the person subpoenaed what
exactly is being investigated and what evidence this investigation is based on, and this will infringe
on the rights of the individual protected in the Bill of Rights.
A constitutionally compliant and purposive interpretation of the Act therefore requires us to read
the Act contextually and as allowing a subpoena only to be issued as a last resort and only once a
decision has been made that an actual investigation is to be conducted. In my view, the purpose of
the subpoena power is to allow the Public Protector to force witnesses – especially those implicated
in wrongdoing – to answer question once the Public Protector has decided that a full investigation
should be conducted.’15

[49] It follows that like the main application and, more importantly, irrespective of
the merits of the main application, the urgent application should have succeeded with
costs in the high court.

15 Professor Pierre De Vos in a post on his Constitutionally Speaking Blog on 15 November 2018 entitled: ‘Response
to the Legal Claims made by the Public Protector’s Office’.

[50]  Finally, as I have already pointed
out, not only did the Public Protector
misconceive her powers, but in many respects her approach is regrettable. The
Constitutional Court has emphasised that the Public Protector is bound, in terms of
s 195(1) of the Constitution, by the basic values and principles governing public
administration, including, amongst others: (a) a high standard of professional ethics;
(b) the constitutional imperative to use resources efficiently, economically and
effectively; (c) accountability; and, (d) the constitutional imperative to foster
transparency by providing the public with timely, accessible and accurate
information.16 In that, it seems to me, the Public Protector has failed.

[51] From the outset, GEMS evidently entertained grave concern as to the
jurisdiction of the Public Protector to investigate Mr Ngwato’s complaint. Instead of
seeking to assuage those concerns, the repeated refrain on the part of the officials in
the office of the Public Protector was to regurgitate provisions of the PPA and to
insist on compliance on pain of criminal sanction. They thus eschewed reason for
coercion. That strikes one as the very antithesis of an office designed to resolve
conflict between the citizenry of this country and those who control the levers of
power. It ill-behoves officials to perceive GEMS’ challenge to jurisdiction as
undermining the office of the Public Protector or its constitutional powers.17 Nor,
was it fair to suggest that GEMS sought to immunise itself from the scrutiny of the
Public Protector. After all a robust democracy must of necessity welcome challenges
such as this. More so, one imagines, in respect of an office such as that of the
Public Protector, which as the Constitutional Court has made plain, falls into the
category of a public litigant, upon whom a higher duty is imposed to respect the law,
fulfil procedural requirements and tread respectfully when dealing with rights.18

16 Public Protector v South African Reserve Bank [2019] ZACC 29; 2019 (6) SA 253 (CC) para 151.
17 Economic Freedom Fighters v Gordhan and Others; Public Protector and Another v Gordhan and Others [2020]
ZACC 10 para 99.
18 Public Protector v South African Reserve Bank [2019] ZACC 29; 2019 (6) SA 253 (CC) para 155.

[52] The further unfortunate consequence of the approach adopted is that it shifted
the focus from the individual complaint to the overall authority of the
Public Protector. That however served to enlarge the issues and obfuscate the true
nature of the inquiry because, as I have attempted to show, the fact that the
Public Protector may have had the necessary jurisdiction to investigate GEMS was
not the end of the matter, it still remained to consider whether the particular
complaint fell within her remit.

[53] In the result:
(a)
The appeal is upheld with costs, including those of two counsel.
(b)
The order of the court below is set aside and replaced by:

‘(i)
The application succeeds.
(ii)
It is declared that the first respondent is not empowered by sections 6(4) or (5) of
the Public Protector Act 23 of 1994 to investigate the complaint lodged by the
second respondent against the first applicant.
(iii)
The rule nisi dated 14 May 2018 issued under case number 33401/2018 is
confirmed.
(iv)
The first respondent is ordered to pay the costs of the application, inclusive of the
urgent application under case number 33401/2018. Such costs to include those
consequent upon the employment of two counsel.’

_________________
V M Ponnan
Judge of Appeal

APPEARANCES:

For Appellants:

A Bava SC (with him J W Schabort)

Instructed by:

Gildenhuys Malatji Inc, Pretoria

Honey Attorneys, Bloemfontein

For Respondents:

M Manala

Instructed by:

Dyason Inc, Pretoria

Phatshoane Henney, Bloemfontein
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY - JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

Government Employees Medical Scheme and Another v The Public Protector of the Republic
of South Africa and Others (1000/2019 and 31514/2018 and 33401/2018) [2020] ZASCA 111 (29
September 2020)
From:
The Registrar, Supreme Court of Appeal
Date:
29 August 2020

Status:
Immediate
Please note that the media summary is for the benefit of the media and does not form part of
the judgment of the Supreme Court of Appeal.
Today, the Supreme Court of Appeal (SCA) upheld an appeal against an order of the Gauteng
Division of the High Court, Pretoria (the high court) granted in favour of the respondent, the Public
Protector of the Republic of South Africa.
The appeal arose for consideration against the following backdrop: The first appellant, is the
Government Employees Medical Scheme (GEMS), registered in terms of the Medical Schemes Act
131 of 1998 (the MSA). The second respondent is Mr Ngwato, who sought to be recognised by
GEMS as a ‘beneficiary’ of his deceased spouse. GEMS took the view that Mr Ngwato did not qualify
pursuant to GEMS’ Rules (the Rules). Aggrieved by GEMS’ refusal, Mr Ngwato lodged a complaint in
terms of s 47 of the MSA with the Registrar of Medical Schemes (the Registrar). In the meanwhile,
following a policy change by GEMS, the rule disqualifying Mr Ngwato had fallen away and Mr Ngwato
was furnished with a membership certificate. However, he also contended that he was eligible for a
Government Pensions Administration Agency (GPAA) subsidy. The Registrar of Medical Schemes
ruled against him. Mr Ngwato then appealed to the Council for Medical Schemes (the Council) in
terms of s 48 of the MSA. The Council dismissed his appeal. In terms of s 50 of the MSA, Mr Ngwato
had the right of a further appeal to the Appeal Board of the Council. Instead, he lodged a complaint
with the Public Protector. GEMS asserted that the Public Protector lacked jurisdiction to investigate
Mr Ngwato’s complaint. The Public Protector took the view that she was empowered by the
Constitution and the Public Protector Act (PPA) to investigate the complaint.
GEMS applied to the high court for an order (the main application) declaring that the Public Protector
did not have the statutory authority and/or jurisdiction to pursue the investigation. Whilst that
application was pending, the Public Protector issued two subpoenas that were served on the third
appellant, Mr Kruger, the legal advisor of GEMS and the second appellant, Dr Gunvant Goolab, the
Principal Officer of GEMS. The subpoenas required them to appear in person before the Public
Protector. The attorney of record for GEMS addressed a letter to the Public Protector seeking an

undertaking that the hearings will be stayed pending finalisation of the main application. The response
was to insist on compliance with the subpoena on pain of criminal sanction. Mr Kruger and Dr Goolab
felt compelled to approach the high court as a matter of urgency (the urgent application) to be joined
as parties to the litigation and for the subpoenas to be suspended pending finalisation of the main
application. The Public Protector filed a notice of intention to oppose the urgent application, but failed
to file an answering affidavit. The urgent application succeeded before Davis J. Both the main and
urgent applications subsequently served before Kubushi J, who dismissed the main application, set
aside the order suspending the subpoenas and ordered the costs of both the main and urgent
applications to be paid by GEMS, Dr Goolab and Mr Kruger (collectively referred to as the appellants).
The argument on appeal was confined to ss 6(4)(a)(ii), 6(4)(a)(v) and 6(5)(b) of the PPA, which, so it
was contended, empowered the Public Protector to investigate Mr Ngwato’s complaint. The SCA was
not persuaded by the reasons advanced on behalf of the Public Protector as to why it was thought
necessary to investigate the complaint. The SCA held that it is manifest that the Public Protector’s
stubborn and irrational insistence on continuing with her investigation could hold no benefit for the
public at large, or for that matter even Mr Ngwato himself. The complaint, which was an isolated one,
had in any event become moot. The SCA reasoned that the business of a medical scheme does not
appear to encompass the performance of a public or government function or the exercise of a public
power. The SCA held that the Public Protector did not have the statutory power to investigate the
complaint and that the main application ought to have succeeded before the high court. The SCA
emphasised that the Public Protector cannot lawfully embark on an investigation that does not fall
within her statutory remit as such an investigation would be unlawful.
The Public Protector appeared not to appreciate the extent to which the appellants’ constitutional
rights were being affected. The SCA stated that where subpoena powers are granted to a body other
than a court, the power should be interpreted restrictively and that the Public Protector’s power of
subpoena is dependent upon the existence of a valid complaint as contemplated in sections 6(4) and
(5) of the PPA. The SCA reasoned that the Public Protector had misconceived her powers in both
investigating the complaint and issuing the subpoenas. It was considered by the SCA that the office of
the Public Protector falls into the category of a public litigant, upon whom a higher duty is imposed to
respect the law. The SCA stated that insisting on compliance with the subpoenas whilst the question
of her jurisdiction remained to be determined by the high court, leaves one with the impression that
the subpoenas were intended to cow the appellants into submission. And, that there is much to be
said for the appellants’ argument that for so long as the jurisdiction of the Public Protector remained to
be settled by the court in the main application, the coercive subpoena power was invoked in bad faith
or with an ulterior purpose or in a manner that abuses the power to subpoena.
In the result, the appeal was upheld. The order of the high court was set aside and replaced by an
order: (i) declaring that the Public Protector is not empowered by sections 6(4) or (5) of the PPA to
investigate Mr Ngwato’s complaint; and, (ii) confirming the interim order setting aside the subpoenas.

The Public Protector was also ordered to pay costs of two counsel in both the high court and on
appeal.