The National Health Laboratory Services and the National Institute of Communicable Diseases failed to meet the expected constitutional standards in the long-running listeriosis case, according to a judge, who last week ordered them to pay punitive costs to the applicants and Tiger Brands, reports TimesLIVE.
This followed their 11th hour filing of an “explanatory affidavit” the night before the due court date when they were supposed to disclose important and relevant information relating to the investigation.
In a stern rebuke of state litigation tactics, Judge Stuart Wilson ruled in the Gauteng High Court on Wednesday that the NHLS and NICD must fork out for the costs of 16 class action applicants and Tiger Brands on an attorney and client scale, slamming the failure of the state bodies to meet the the constitutional standards expected of public institutions.
On 17 April, Wilson had passed judgment directing the NHLS and NICD to release a range of defined confidential medical information to 16 people who are representatives of a class of individuals claiming suffered compensable loss from Tiger Brands after eating food contaminated with listeria.
The High Court certified their class action in 2018, but the action has not yet gone to trial.
One of the steps the applicants say is necessary before the matter goes to trial is the disclosure of material relating to an investigation conducted by the NHLS and NICD, which traced the listeriosis outbreak back to a Tiger Brands food processing centre.
The material is necessary because it is likely to be evidence in the action itself and will allow the applicants’ legal representatives to trace members of the class who have not yet been identified.
The class action representatives had placed an application for an order directing NHLS and NICD to disclose the information on Wilson’s unopposed roll for 12 March 2026.
However, on the evening of 11 March, the NHLS and NICD filed a 44-page “explanatory affidavit”. Wilson said the purpose of this was far from clear, but its gist was that the relief the class action applicants sought was overbroad and inappropriate.
Wilson said the manner in which NHLS and NICD had placed their misgivings before him left a great deal to be desired.
“Having formally abided my decision, they waited until just hours before the matter was to be heard before changing their position in a lengthy affidavit that they must have known I would have no real chance to absorb before the hearing.”
The NHLS and NICD also did not send counsel to court to explain the affidavit.
Wilson said this conduct had real consequences.
“For the reasons I gave in my judgment of 17 April 2026, I could not simply treat the application as unopposed. I was statutorily obliged to consider and come to grips with the tardy affidavit.”
Wilson said the application could not be decided on the day for which it was set down, being but one of 59 cases on his roll that day, and further submissions were made necessary.
In his judgment of 17 April, Wilson directed that the NHLS and NICD should explain why they should not have to pay the costs on the scale as between attorney and client.
He gave both of them time to file the material necessary for him to consider that question, and all parties submitted the material this month.
“Having considered the material, I am convinced that an attorney and client costs order should be made.”
Wilson said what was required in, but absent from, the NHLS and NICD’s costs affidavit was a full explanation of why their affidavit in the main case was only filed at the last minute, why the NHLS and NICD changed their attitude towards the application in that affidavit, and why nobody was sent to court to explain the contents of the affidavit and the change of stance.
Wilson said the NHLS and NICD, through their counsel, emphasised they did not conduct themselves in bad faith and did not intend to cause the additional costs, inconvenience and confusion that they did.
“I accept all of that, but I point out that far more was expected of the NHLS/NICD than the absence of bad faith.”
He said as organs of State, they were under a constitutional obligation to assist and protect the courts and ensure their effectiveness.
An affidavit of the length filed must have been days or weeks in preparation, he said. Neither the judge nor the applicants, nor Tiger Brands, was given any indication that it was coming, much less that it would be filed late in the evening before the hearing.
The failure to warn the parties or the court that the affidavit was on its way was neither fair nor transparent.
“Accordingly, it seems to me that good-natured ineptitude is insufficient to escape a costs order in this case.”
See more from MedicalBrief archives:
Court orders release of medical records in listeriosis case
Tiger Brands to settle some listeriosis claims – seven years later