The recent judgment in Ngobeni and Others v National Health Laboratory Service and Others, arising from the ongoing listeriosis class action against Tiger Brands, provides important guidance on the disclosure of confidential medical information and the interplay between privacy rights and access to justice. At the heart of the dispute was whether confidential patient information held by public health institutions could be disclosed to the class representatives for the purposes of identifying and notifying potential claimants affected by the listeriosis outbreak.
Section 14(2) of the National Health Act 61, 2003 (NHA) permits a court to order disclosure of confidential medical information in defined circumstances. Following the approach adopted in MEC for Health v Solomons 2023 (6) SA 601, the court stated that, as public bodies, the National Health Laboratory Service and the National Institute for Communicable Disease were not passive custodians of medical records but bore a constitutional duty to assist courts in the administration of justice.
The records of the National Health Laboratory Services and the National Institute for Communicable Diseases contained identifying and clinical information relating to individuals tested for listeriosis during the outbreak investigation. The court identified two independently sufficient grounds for ordering disclosure. First, the investigation constituted the principal factual foundation upon which Tiger Brands' liability would be established at trial, and both parties required access to the information to advance their respective cases. Second, the information was necessary to trace unidentified class members so that they could exercise their opt-out rights or receive compensation if damages were awarded.
The court held that the public interest in facilitating the class action outweighed the privacy interests associated the medical data, provided that appropriate safeguards were imposed to restrict use of the information to the specific legal purpose. Critically, the court identified a paradox unique to opt-out class actions: blocking disclosure in the name of privacy would have deprived the very individuals whom the statutory protections are designed to protect of the opportunity to opt out or to claim compensation, since their silence operates as deemed consent to participation in the litigation.
Even where a state institution fails in that duty, the judicial officer must still independently perform the rigorous balancing exercise between privacy and the interests of justice required by Solomons. The decision confirms that confidential medical records held by state health bodies are susceptible to court-ordered disclosure in class action litigation where those records are central to establishing both liability and class membership, provided the court applies the requisite constitutional balancing exercise and imposes appropriate confidentiality safeguards.
