Following the implementation of the Protection of Personal Information Act 4 of 2013 (“POPIA”), practitioners and the public alike have waited to see how the implementation (or non-implementation) of POPIA plays out in the Courts. Recently in De Jager v Netcare Limited (42041/16) (17 February 2025) (GP) the High Court, Pretoria added to the emerging jurisprudence on this issue.
Nicolaas J De Jager (“De Jager”), a 66 year old man, went blind in one eye after an unsuccessful cataract procedure and instituted action for around R25 million in damages from the Netcare Group (“the Group”). At Court, De Jager objected to the Court accepting the forensic report of a private investigator who was hired by the Group to monitor him. The evidence was introduced by the Group to prove that the blindness in his one eye was not hampering De Jager’s ability to lead a normal life.
In respect of the allegation that his and his family’s constitutional right to privacy had been infringed, De Jager argued that the forensic report submitted in Court contained photographic and video footage of him and his family, including that of their grandson, which was published in the public domain without their consent as it formed part of the publicly accessible court file. He also argued that less intrusive means could have been used such as obtaining expert medical reports regarding his existing condition.
The question before the High Court was whether De Jager’s objection to the evidence of the forensic investigator falls within the ambit of POPIA and whether it would pass muster in terms thereof.
The Court firstly bemoaned the fact that De Jager relied on section 14 of the Constitution (i.e. the right to privacy), instead of the provisions of POPIA, and stated that his application on that basis alone should have been dismissed. The Court nevertheless dealt with the question of whether the implicated evidence passed muster under POPIA.
Lawful Processing in Pursuance of a “legitimate interest”?
The Group argued that it was pursuing a legitimate interest to discover the truth about the health of De Jager and hence the processing of his personal information was lawful because it complied with section 11(1)(f) of the POPIA which states that “…Personal information may only be processed if processing is necessary for pursuing the legitimate interests of the responsible party or of a third party to whom the information is supplied;”.
The Court grappled with the meaning of “legitimate interest” as it is not defined in POPIA and undertook an analysis of this in terms of section 36 of the Constitution. In summary, the Court ultimately held that the photographic and video footage were taken in a public setting and that this lessened the otherwise egregious invasion of privacy. It further held that there was a rational link between the taking of the pictures and the need for evidence that exposes the truth about De Jager’s health.
Special Personal Information?
The Court then raised the issue that since De Jager’s health was at the heart of the case, the information being processed by the Group constituted special personal information. It found that sections 26 and 27 of POPIA shared centre stage and had to be read together. In other words unless certain exclusions apply as set out in section 27 of POPIA, a responsible party is generally prohibited from processing special personal information in terms of section 26 of POPIA.
In this regard the Group argues that it was argued that it was necessary for it to conduct the surveillance in order to obtain evidence which was relevant to the facta probanda (facts required to be proven) in defence of its right in law following the issuance of summons by De Jager. In other words it was argued that the surveillance was lawful in terms of section 27(1)(b) of POPIA, particularly as the photographs and video footage were taken in the public sphere when De Jager was at a petrol station and walking at a park.
De Jager maintained that his consent was required in terms of section 18 of POPIA but the Court found his submission puzzling in that the “sting” in any surveillance is in the element of surprise, and accordingly had De Jager been warned, he would have organised his affairs accordingly.
In conclusion, the Court found that the processing of the evidence through surveillance conducted in the public sphere was lawful in terms of section 27(1)(b) of POPIA and that it was in the interests of justice to admit the evidence so obtained but cautioned, rightly in our view, that section 27(1)(b) of POPIA would not extend to taking of pictures of De Jager inside his house, bedroom and bed as that would, without a doubt, be unlawful and an invasion of his privacy.
The Court however recorded its displeasure that personal information of children and non-data subjects (of the family members of De Jager) had been processed and ordered that the photos, videos or information on them be redacted with immediate effect.
This is without a doubt one of a string of cases which will require the Courts to interpret and apply the provisions of POPIA to varying factual scenarios. The factual scenario in this case is very similar to cases where employers are required to hire private investigators to monitor the activities of employees who are placed on extended sick leave where there is a question mark around whether they are truly ill. Employers must therefore seek to fully understand POPIA and its requirements before engaging in such investigations and/or subjecting employees to surveillance of any kind.
