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[2020] ZASCA 111
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Government Employees Medical Scheme and Others v Public Protector of the Republic of South Africa and Others (1000/19) [2020] ZASCA 111; [2020] 4 All SA 629 (SCA); 2021 (2) SA 114 (SCA) (29 September 2020)
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.’
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 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 1
st
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
7
th
of December 2015 stating that my benefits were terminated on the 1
st
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 15
th
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 15
th
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 10
th
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 15
th
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 15
th
May
2018, only if the documents subpoenaed are delivered to the Public
Protector. We therefore reiterate the contents of our letter
dated
10
th
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
00
0000">
,
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’.
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.
[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&rsquo
;. 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
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 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.
[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]
[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
[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.
[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.
[7]
Section 32
of
the
Medical Schemes Act.
[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.
[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.
[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.
[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’.
[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.