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- The Supreme Court of Appeals handed down a strong judgment against public protector Busisiwe Mkhwebane for her office’s handling of a health care dispute.
- The SCA found that instead of clarifying whether the office had jurisdiction over the Government Employees Medical Plan, the Public Protector initiated legal action against them for failing to deliver documents.
- The SCA found that although GEMS members are government employees, the scheme itself does not fall within the domain of the Public Protector.
The Supreme Court of Appeals has issued a strong ruling on the handling of the office of the Public Protector Busisiwe Mkhwebane of a jurisdictional complaint related to the right of a widower to the benefits of the Government Employees Medical Plan (GEMS).
Widower Benedict Ngwato had contested GEMS’s refusal to allow him to become a beneficiary after the death of his wife, a long-time government employee.
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The refusal was based on the Medical Schemes Act (MSA) which, at the time, excluded him because he did not have a marriage certificate.
He complained to the Registrar of Health Plans, but in the meantime, GEMS changed their policy on life partners and the requirement for a marriage certificate disappeared.
On December 7, 2015, Ngwato obtained a membership certificate, confirming that his benefit date was June 1, 2013.
He was not happy about this because he did not qualify for the subsidy from the Government Pension Administration Agency and would have had to pay the full amount of the contribution himself.
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Appeal
On January 19, 2016, the Secretary ruled that he could be a member of the plan, but was not eligible for the grant.
Ngwato appealed to the Council for Medical Schemes, in terms of the MSA, and on October 27, 2016, the council’s appeals committee ruled against him.
Instead of appealing to the city council, he filed a complaint with the Public Protector.
In an affidavit dated February 19, 2016, he complained that his benefits had ended on June 1, 2013, rather than being accepted as a beneficiary, and he felt this was because he had complained to GEMS.
Months passed, and then GEMS received an email on June 9, 2017 from the defender Jeno Singh, lead investigator at the Public Protector’s office, to say that she had received the complaint, but found it unfounded and closed the file. .
However, Ngwato exercised his right to have the decision reviewed and, as a result, GEMS was asked to meet at the Public Protector’s office to discuss, among other things, why Ngwato had become a beneficiary, but then his membership in the scheme was terminated.
The office also wanted information on the rule used to determine that you had to have a marriage certificate.
On June 13, 2017, Marthinus Kruger, GEMS’s legal advisor, responded to the Public Protector’s office to say that it was a private medical plan regulated by the Medical Plans Act.
Although its members are government employees, it is not a government entity, so the Public Protector has no jurisdiction over it. She invited the Public Protector to discuss this if necessary.
An informal meeting between Singh and Kruger was held on June 21, 2017, but according to GEMS, Singh declined to discuss whether the Public Protector had jurisdiction.
Nothing was known for about 10 months, and then on April 24, 2018, “out of nowhere”, Kruger and also Dr. Gunvant Goolab, the chief officer of GEMS, were notified of two subpoenas allegedly issued under the Public Protection Law.
Ngwato’s request for a review was terminated and documents were searched.
Judicial battle
The parties went back and forth on the issue of jurisdiction and GEMS decided to go to court to resolve the matter.
However, in the meantime, Goolab and Kruger were threatened with contempt of the Public Protector if they failed to comply with the subpoenas by May 15, 2018, regardless of whether the jurisdiction issue had been resolved or not. They were also told that they were not part of GEMS ‘request for jurisdiction and that they had to comply with the subpoena.
The day before the May 15 deadline, they petitioned the court for an injunction to suspend the subpoenas they were served and join GEMS’s request. The Public Protector indicated his intention to oppose the request, but did not submit an affidavit, so the judgment was in favor of Goolab and Kruger.
On June 27, 2019, the Superior Court, in the main appeal of GEMS jurisdiction, dismissed the main appeal, annulled the order of suspension of subpoenas and ordered the payment of the costs of both the main appeal and the urgent one, including two lawyers . by the plaintiffs, jointly and severally.
The court found that GEMS was unique in that it was established by the government for government employees using public funds for the benefit of employees and can be investigated by the Public Protector and that Ngwato’s case was in the public interest.
GEMS, Goolab and Kruger obtained permission to appeal to the SCA, with the Public Protector, Ngwato, the Council for Medical Schemes and the Registrar for Medical Schemes as defendants.
The SCA took a different view on GEMS, stating that a medical plan was defined in the Medical Plans Act (MSA) as any medical plan registered under S 24 (1). It is a non-profit entity, operating for the benefit of its members and its functions and powers are limited by its registered rules and the MSA. It does not encompass a government function or public power, which is provided for by the Public Protection Law, nor does it provide a health service. If someone does not pay, their membership or benefits may be terminated.
He stated that although half of the GEMS board was appointed by a government minister, the minister did not exercise any control over it, and the Board of Trustees can change the rules without ministerial approval. For these reasons, it did not fall within the scope of the Public Protector.
But the court questioned why the Public Protector’s office insisted on focusing on obtaining the GEMS documents, rather than taking the “less invasive” approach of resolving the jurisdiction issue first.
He noted that the investigation also fell outside the established deadlines and Ngwato had not chosen to appeal the decision before going to the Public Protector. It also considered that no problem of public interest was raised to justify the deviation from the deadlines established in the Public Protection Law.
“In other words, having been convinced that the investigation does not require urgent attention, the [Public Protector] he dealt with the matter unhurriedly until April 10, 2018, after which, inexplicably, he decided that the complaint had become so urgent that it justified the issuance of subpoenas and the scheduling of hearings on an urgent basis. “
The SCA was alarmed that the office appeared to regard the issue of jurisdiction as irrelevant.
“It goes without saying that the public protector cannot legally embark on an investigation that is not within its statutory powers. Such an investigation would be illegal. And, if such an investigation were illegal, so would the alleged exercise of its powers of subpoena in compliance with said investigation.
“The attitude of the officials of the Public Protector’s office seems to have been that their mere saying for the Public Protector to be empowered to investigate the complaint should prevail. Such attitude ignored the fact that there was a pending challenge before the higher court to resolve the competence of the Public Protector to investigate the complaint in question ”, continued the sentence.
The court called his approach “regrettable” and said the office “avoided the motive of coercion.”
The appeal was confirmed with the costs, including those of the two lawyers.
It was stated that the Public Protector is not empowered to investigate GEMS.
The Public Protector was ordered to pay the costs of the lawsuit, including the urgent lawsuit before the higher court regarding the subpoenas.
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