Netcare was dealt a blow this week in a privacy case involving a patient, after the courts permitted Nicholaas de Jager to challenge a recent ruling in favour of the group.
De Jager was granted leave to apply for an appeal against a February 2025 High Court judgment that admitted surveillance evidence into the trial.
ITWeb reports that De Jager had instituted a damages claim of R25m against Netcare in the wake of what he said was unsuccessful cataract surgery, and resulting blindness in one eye.
However, to contest the extent of his claimed impairments, Netcare commissioned a private investigator to conduct covert surveillance, capturing photographic and video evidence of his daily activities.
De Jager opposed the admission of this material, arguing that it infringed his constitutional right to privacy under section 14 of the Constitution.
Early in the proceedings, two legal scholars – Professors Sizwe Snail ka Mtuze and Donrich Thaldar – were admitted as amici curiae and made detailed submissions that helped the court navigate the complex intersection of privacy, constitutional rights and statutory law.
In court papers, De Jager’s legal team confirmed that the forthcoming appeal will be directed to the Supreme Court of Appeal, or alternatively, the Constitutional Court.
They argue that the case raises critical constitutional and legislative questions with “jurisprudential value for future cases”.
The dispute centres on whether the surveillance, conducted without De Jager’s knowledge and which included footage of his wife, son and grandchildren, violated his constitutional right to privacy.
Judge Mandlenkosi Percival Motha had ruled that De Jager erred in relying directly on the Constitution rather than the Protection of Personal Information Act (POPIA), which codifies informational privacy in South Africa. On this basis, the court dismissed his objection to the evidence.
In his notice of appeal, De Jager contends the court misapplied the principle of subsidiarity, asserting that constitutional objections can be validly raised during trial when evidence is improperly obtained.
He maintains that requiring a direct constitutional challenge to POPIA in this context was an error, and also argues that the court failed to properly apply POPIA, particularly its strict provisions governing the processing of personal data relating to minor children.
He claims that the selective redaction of images ordered by the court undermines the Act’s protections and does not remedy the unlawfulness of Netcare’s evidence-gathering.
The appeal also raises broader constitutional concerns, as De Jager asserts that some evidence was collected in private spaces where he had a legitimate expectation of privacy, and that the court overlooked Constitutional Court jurisprudence that has expanded the scope of privacy rights.
His lawyers further submit that the High Court judgment risks narrowing the role of foreign and international law in interpreting constitutional rights. While the judge emphasised an Afrocentric approach to jurisprudence, De Jager argues that the Constitution requires courts to consider international law when interpreting the Bill of Rights.
De Jager’s notice states that granting leave to appeal serves the interests of justice, noting that the ruling has “significant consequences” for privacy rights, the admissibility of evidence, and the development of South African common law.
If successful, the appeal could set a precedent on the interaction between POPIA and constitutional privacy rights in civil litigation, particularly in cases involving surveillance evidence.
IT Web article – Patient to lodge appeal against Netcare in R25m privacy dispute (Open access)
See more from MedicalBrief archives:
Cataract patient who lost eyesight objects to Netcare surveillance report