In De Jager v Netcare, the High Court considered whether surveillance evidence collected without consent was admissible under the Protection of Personal Information Act (POPIA). The case clarifies when personal information, including special personal information like health data, may be processed and used in legal disputes.

Who should care about this judgment and why?

  • Businesses and litigants who may collect or rely on personal information in legal proceedings.
  • Legal practitioners handling privacy and data protection cases under POPIA.
  • Individuals concerned about their right to privacy and the admissibility of surveillance evidence.

What could you do about it?

  • Ensure that you are collecting information through surveillance lawfully by conducting a personal information impact assessment (PIIA).
  • Minimise risk by ensuring you are following the principles for lawful processing. Especially when collecting special personal information and children’s personal information.
  • Contact the Michalsons team to help you understand surveillance evidence and your obligations under POPIA.

Our insights on surveillance evidence and POPIA

This judgment provides critical guidance on the interplay between privacy rights and the necessity of obtaining evidence in legal disputes. It underscores that while individuals have a right to privacy, this right is not absolute and must be balanced against other legitimate interests, such as the pursuit of truth in litigation. The judgment also highlights the importance of adhering to statutory frameworks like POPIA when addressing privacy concerns, rather than relying solely on the Constitution. Overall, the case of De Jager v Netcare serves as a pivotal reference point for future matters involving the collection and use of personal information within legal contexts in South Africa.

Digest

Facts and Background

Mr de Jager, the plaintiff, sued Netcare seeking approximately R25 million in damages following a failed surgery. To contest the extent of his alleged impairments, Netcare hired a private investigator to conduct covert surveillance on Mr de Jager, gathering photographic and video evidence of his daily activities. Mr de Jager objected to the admission of the evidence. He argued that it violated his constitutional right to privacy, citing s14 of the Constitution.

Reasoning

The court emphasised the principle of subsidiarity that states when legislation like POPIA exists to protect a constitutional right, litigants must rely on that legislation rather than invoking the constitution directly. The Plaintiff relied on section 14 of the Constitution rather than POPIA. Thus, the plaintiff’s objection to the evidence of Mr Pienaar was dismissed. However, the court went further to answer the ancillary question: would the implicated evidence be admissible under POPIA? To make this determination, the court relied on the submissions of two amici curiae.

Both amici curiae agreed that POPIA applies to this case.

The first amicus submitted that the defendant was pursuing a legitimate interest to discover the truth of the plaintiff’s health. The court undertook a s36 limitation analysis to determine whether the legitimate interest of the defendant trumped the plaintiff’s right to privacy. The court found that the defendant’s intention to defend itself in litigation constituted a legitimate interest, thereby justifying the surveillance.

The first amicus also argued that the surveillance evidence was lawfully obtained because it was necessary for the exercise, or defence of a legal right. Section 27 (1)(b) of POPIA states that the prohibition on processing special personal information does not apply if processing is necessary for the establishment, exercise or defence of a right or obligation in law. The court found this argument persuasive.

The second amicus argued that surveillance violated privacy rights and the defendant should have sought consent. In response, the court relied on section 18(4)(c)(iii) of POPIA, which states that a responsible party doesn’t need to notify a data subject if non-compliance is necessary for the conduct of proceedings in any court or tribunal that have been commenced or reasonably contemplated.

The court also criticised the processing of children and non-data subject information.

Order

  • The High Court dismissed the plaintiff’s application and admitted Mr Pienaar’s evidence obtained through surveillance.
  • The High Court ordered the photos of the non-data subjects and children to be redacted.

Details of De Jager v Netcare

  • Universal citation: [2025] ZAGPPHC 141
  • Case number: 42041/16
  • Full name: De Jager v Netcare Limited and Others

Please note: The summary of this judgment is not intended for a general audience. It is specifically drafted for the members of the Michalsons Data Protection programme.