Government Employees Medical Scheme and Others v The Public Protector of the Republic of South Africa and Others

The Government Employees Medical Scheme (GEMS), a medical scheme registered under the Medical Schemes Act 131 of 1998, refused initially to recognise Mr Ngwato as a beneficiary following the death of his life partner, a GEMS member, due to lack of a marriage certificate. After a policy change, GEMS recognised him as a member but without eligibility for a government subsidy from the Government Pensions Administration Agency (GPAA). Mr Ngwato unsuccessfully pursued complaints and appeals before the Registrar of Medical Schemes and the Council for Medical Schemes. Instead of further appealing under the Medical Schemes Act, he lodged a complaint with the Public Protector. The Public Protector sought to investigate and issued subpoenas to senior GEMS officials. GEMS and its officials challenged the Public Protector’s jurisdiction, contending that GEMS is a private body not performing a public function and therefore not subject to investigation under sections 6(4) or 6(5) of the Public Protector Act 23 of 1994.

The appeal was upheld with costs. The order of the high court was set aside and replaced with an order declaring that the Public Protector was not empowered under sections 6(4) or (5) of the Public Protector Act to investigate the complaint against GEMS. The rule nisi suspending the subpoenas was confirmed, and the Public Protector was ordered to pay the costs, including costs of two counsel.

This case clarifies and limits the jurisdiction of the Public Protector by reaffirming that her powers are constrained by the Public Protector Act and do not extend to private entities that do not perform public functions, even if they are closely associated with government. It reinforces the principle of legality and accountability applying equally to the Public Protector.