The recent High Court judgment in De Jager v Netcare Ltd is a significant ruling that clarifies important aspects of informational privacy under South African law. Having participated as amicus curiae, I had the opportunity to make submissions that shaped the court’s reasoning and the outcome of the case. This case is noteworthy not only for its impact on privacy law but also for its implications for health research and data governance.
What was the case about?
The case dealt with a privacy challenge raised by the plaintiff, Mr. Nicolaas de Jager, who objected to the admission of surveillance data obtained by the defendant, Netcare Ltd. De Jager claimed that his constitutional right to privacy had been violated, arguing that the covert collection of health data was unconstitutional.
The key legal question before the court was whether health data obtained through covert surveillance could be admitted as evidence, given the constitutional right to privacy.
The court’s key findings on informational privacy
The judgment makes two key contributions to South African privacy law:
POPIA, not the Constitution, governs privacy disputes. A crucial aspect of the judgment is its reliance on the principle of subsidiarity, which dictates that where legislation exists to give effect to a constitutional right, litigants must rely on that legislation rather than invoking the Constitution directly. The court adopted my argument that since POPIA comprehensively governs informational privacy, the plaintiff’s direct appeal to the Constitution was misplaced.
Privacy rights are not absolute. The court affirmed that data subject rights under POPIA must be balanced against competing interests—in this case, the public interest in truth-seeking in litigation. This aligns with broader legal debates on data subject rights versus the freedom of scientific research and the public interest in health research.
My contributions to this landmark ruling.
As amicus curiae, I presented several key legal arguments, many of which were explicitly adopted by the court. Some of the most impactful points included:
The proper application of POPIA. I argued that POPIA is South Africa’s codification of informational privacy and that any privacy-based legal challenge must be grounded in POPIA. The court not only endorsed this position but relied on it as a decisive factor in dismissing the plaintiff’s constitutional privacy claim. This has clear implications for health research. POPIA represents a careful balancing of data subject privacy rights with other individual rights and the public interest in scientific progress. This balance established by POPIA should be respected.
The ‘legitimate interest’ justification under POPIA. One of the critical questions in this case was whether the covert collection of health data was lawful under POPIA. I argued that POPIA permits such collection if it is necessary to pursue a legitimate interest. The court accepted my argument that Netcare’s interest in defending itself in litigation qualified as a legitimate interest. This interpretation provides important guidance for cases involving health data collection in legal, medical, and research contexts, where privacy concerns must be weighed against other legitimate interests.
The judicial exclusion in POPIA. I urged the court to clarify section 6 of POPIA, which exempts judicial functions from the Act’s privacy protections. Contrary to the narrow reading suggested in the leading textbook on POPIA, the High Court endorsed my broad reading of this provision, affirming that POPIA does not apply to the judicial process—including not only judicial officers but also litigants. The practical, purposive reasoning underlying the broad reading of section 6 is highly relevant to other parts of POPIA, such as the meaning of ‘specific’ consent.
Why this judgment matters
Beyond its direct impact on privacy litigation, this ruling is significant for several reasons: First, it provides a roadmap for future cases involving privacy. The judgment sets a precedent for how courts should evaluate privacy rights, reinforcing that informational privacy is a contextual, not absolute, right. Second, it establishes the central position of POPIA in the balancing of rights and interests in respect of special personal information, including health data. Third, it strengthens legal clarity for health data governance. The discussions around legitimate interest and the broad reading of the judicial exception are both particularly relevant for health research.
This case was an exciting opportunity to contribute to the evolution of South African privacy law, and I am pleased that my submissions played a crucial role in shaping the court’s thinking on the issues.
Donrich Thaldar 