- The court orders the release of confidential medical records from the listeriosis outbreak that killed more than 200 people.
- Records needed to identify victims and build the case against Tiger Brands.
- State health bodies face punitive costs after last-minute legal manoeuvres backfire.
The High Court in Johannesburg has ordered the release of confidential medical records at the heart of one of South Africa’s most consequential class actions, a case in which hundreds of people allege they were sickened or bereaved by contaminated food produced by Tiger Brands.
The ruling came in proceedings brought by Montlha Welhemina Ngobeni and 15 others against the National Health Laboratory Service (NHLS), the National Institute for Communicable Diseases (NICD), the Minister of Health, and Tiger Brands-related entities.
The applicants represent a certified class of individuals who say they suffered devastating losses, including illness, disability, or the death of a loved one, after consuming contaminated food products made by Tiger Brands. The class action was certified on 12 December 2018 but has not yet gone to trial, leaving victims in legal limbo for more than six years.
Judge SDJ Wilson considered the application under Section 14(2)(b) of the National Health Act, a provision that allows a court to compel the release of confidential medical information where the circumstances justify it.
Without these records, victims may never be found
At the centre of the application was a body of investigative material compiled by the NHLS and the NICD, the two state bodies whose work traced the outbreak to a Tiger Brands processing facility in Polokwane. The legal team wants the records both as trial evidence and as a tool to track down victims who are legally entitled to compensation but have not yet been identified.
Judge Wilson had little difficulty accepting the case for disclosure. The information, he found, is central to both the conduct of the trial and the task of finding those who were harmed. “The information sought is plainly relevant to the issues in the class action,” he said.
Beyond the trial itself, the court held that the records are needed to ensure that affected people can make informed decisions about whether to remain in the class action and that those who do stay in can actually receive any damages the court eventually awards.
Weighing the statutory requirements, Judge Wilson confirmed that the records are “genuinely necessary” both to protect the fair trial rights of the class and to locate members who have not yet come forward.
Privacy versus justice and how the court struck the balance
The court did not dismiss the privacy question lightly. Judge Wilson weighed the interests of those whose sensitive medical details would be exposed against the interests of the class as a whole and found that the two groups are, in all likelihood, largely the same people.
Disclosure, he held, would actually empower those individuals, giving them the information they need to make meaningful choices about the litigation. Crucially, the order is narrowly drawn, limiting disclosure to what is strictly necessary and imposing conditions to preserve confidentiality. Judge Wilson stated, “Orders under Section 14(2)(b) are not given for the asking.”
State bodies filed last-minute objections, and the court rejected them all
Despite initially indicating they would abide by whatever the court decided, the NHLS and the NICD filed a last-minute affidavit raising objections to the scope of the order, a move the judge would later view dimly.
One objection was that some of the requested records may not be in their possession. The court dispatched this swiftly. If you do not hold the information, you are not required to disclose it.
A second objection, that the applicants had failed to establish relevance, fared no better. Judge Wilson rejected it outright, noting that the investigation material is the very factual foundation on which Tiger Brands’ liability will be determined.
The court also disregarded a further affidavit the state bodies filed after judgment had been reserved, without seeking the court’s permission to do so.
The judge’s rebuke and why organs of state must assist the courts
Judge Wilson reserved some of his sharpest words for the conduct of the NHLS and the NICD. The two state bodies had filed dense, complex material on the eve of the hearing and then sent nobody to court to explain or defend it.
Organs of state, he reminded them, are constitutionally required to assist the courts and not to burden them with undefended paperwork. Their conduct, he found, was “prima facie, a dereliction of that duty.”
The court directed the NHLS and the NICD to file affidavits explaining why they should not be ordered to pay costs on a punitive attorney-and-client scale, the most severe costs order available. The applicants and Tiger Brands-related respondents will have an opportunity to respond.
What the court ordered
The court made the draft disclosure order final and set timelines for the parties to file submissions on costs. It also noted that any variation of the order may be sought in chambers or before another judge should the need arise.
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