In February 2026, the Constitutional Court dismissed an aggrieved bidder’s challenge against a decision of the Government Employees Medical Scheme (GEMS) to award a tender for courier services, ruling that the commercial decisions of a medical scheme, including those related to procurement, are generally not susceptible to judicial review. The court also decided that a record of an allegedly reviewable decision need not be provided if there is no legal basis for the review.
The matter arose from a tender for courier pharmacy services issued by GEMS. The tender was awarded to a joint venture. The aggrieved bidder launched a review application seeking to have the decision set aside on public law grounds or under the common law. Normally in a review, the impugned decision-maker is required to produce the record of its decision, but GEMS refused to do so. Instead, it raised a preliminary legal point that its decision fell beyond the scope of the court’s review jurisdiction.
The court was therefore required to determine:
- whether GEMS was obliged to provide the record before the preliminary legal point was decided;
- whether GEMS’ decision constituted an exercise of public power subject to review on public law grounds; and
- if not, whether the decision was nonetheless subject to review under the common law.
The court ruled that preliminary legal points challenging the basis for a review may be raised before the record is produced. If the issue of jurisdiction is so raised, it must be determined before any order for the production of the record can be made. Accordingly, if the court were to find that GEMS’ decision fell beyond the court’s review jurisdiction, that would be the end of the matter.
The court observed that GEMS is not an organ of state, but rather a restricted and voluntary medical scheme, registered in terms of legislation, whose rules apply only to a restricted class of persons. Government contributions to GEMS are made in the capacity of an employer on behalf of employees, in the same way that private employers make contributions on behalf of their employees. Accordingly, the business of a medical scheme does not encompass the performance of a public function, nor the exercise of public power, which means that GEMS’ decision was incapable of review on public law grounds.
Regarding common law review, the court explained that contracts between private entities are subject to review only in limited circumstances, for example where the contract confers adjudicatory or decision-making powers on a party and the principles of natural justice may then be implied as a term of the contract. Given that the aggrieved bidder did not allege that a contract existed between it and GEMS, the court was not entitled to intervene under the common law.
Having found that the aggrieved bidder failed to establish that GEMS’ decision was subject to review on public law grounds or under the common law, the court dismissed the challenge. The judgment illustrates that a party faced with a review application that is bad in law may raise a preliminary legal point to have the application dismissed, without having to produce the record of its decision.