Public Protector lauds High Court judgment affirming her office’s jurisdiction over GEMS

Public Protector Adv. Busisiwe Mkhwebane has lauded Thursday's judgment of the North Gauteng High Court, which confirmed her long-held view that her office does have jurisdiction over GEMS, an exclusive medical aid scheme for government employees.

The ruling paves the way for Adv. Mkhwebane to carry on with an investigation which deadlocked for nearly two years, leaving the complainant in the matter in the lurch. This was as a result of GEMS' earlier contention that it was neither an organ of state nor a government component and thus did not fall within the remit of the Public Protector.

The court case was brought about by Adv. Mkhwebane’s investigation of a complaint by a distraught member of the public who has alleged that GEMS refused to admit him as a beneficiary of a deceased member of the scheme, with full benefits including a subsidy.

The complainant was a registered dependent of the deceased under the medical cover provided by GEMS with effect from 1 June 2013. The main member passed away on 27 June 2013. GEMS terminated the complainant’s membership soon thereafter.

The investigation stalled between June 2017 and April 2018 as GEMS questioned the Public Protector's jurisdiction, prompting Adv. Mkhwebane to subpoena the medical scheme's Principal Officer, Gunvant Goolab and Legal Advisor, Johannes Kruger to appear in person before her to give evidence and produce documents in relation to the investigation.

It was at that point that GEMS turned to the court for a declaratory order in regard to the jurisdiction of the Public Protector to investigate and entertain the complaint in question, together with ancillary relief to set aside any steps by the Public Protector in pursuit of the complaint, including the subpoenas served on Mr. Goolab and Mr. Kruger. Mr. Goolab and Mr. Kruger joined the case as additional applicants.

The court considered whether GEMS is an entity which the Public Protector has the power and/or authority to investigate and whether the Public Protector is authorised by the Public Protector Act or otherwise to investigate the specific complaint. 

Adv. Mkhwebane’s argument was that, while GEMS was neither an organ of state nor government component as defined in the Public Protector Act, and was regulated by the Medical Schemes Act, it performed a public function or public administration and therefore, fell within the ambit of the Public Protector.

She argued that GEMS performed a public function as it was established by the government and for a government purpose as well as the fact that employers participating in GEMS were strictly government departments or components.

In addition, Adv. Mkhwebane pointed out that GEMS only served government employees and those employed by government entities and that 50% of GEMS’ board of trustees were elected by members of the scheme while the remaining half were appointed by the Minister of Public Service and Administration on behalf of government.  

The court held that, although GEMS is a medical scheme like any other, it is unique in that it was established by government for civil servants, using public funds and resources to undertake the responsibility of government as an employer to public service employees.  

It ruled that an investigation of the complaint at hand carried with it an element of public interest and therefore it was correct that the matter be looked into to determine whether or not the exclusion of the complainant was unlawful and amounted to improper prejudice on the complainant. 

GEMS' application in this regard was dismissed and so was the order — issued earlier in a separate but related case — suspending the subpoenas served on Mr. Goolab and Mr. Kruger. The court ordered GEMS, Mr. Goolab and Mr. Kruger to pay the costs of the applications for the two cases. 

“We now expect Mr. Goolab and Mr. Kruger to appear in person before the Public Protector soon to provide us with all the information we require in order to put this matter to rest,” Adv. Mkhwebane said.

“It is a pity that the complainant, who does not have the means to go to court to hold GEMS to account, has had to endure these delays to know whether or not he is entitled to the medical aid benefits he contends he deserves.”

Adv. Mkhwebane added that her office plays a crucial role in promoting access to justice by levelling the playing field between those that can afford to litigate such as GEMS and those that can’t such as the complainant in the case at hand.