"You cannot use medical evidence as a sword while keeping the full truth as a shield".
The delicate balance between personal privacy and the right to a fair trial has once again taken centre stage in the Limpopo High Court. The case of Coca-Cola Beverages South Africa (Pty) Ltd v Daswa Khuthadzo Witness (7480/2020) [2026] ZALMPPHC 20 (6 March 2026) raises a critical question in modern litigation about how private your medical records are when you institute legal action for damages based on injury.
The dispute arose after the respondent, an employee of the applicant, instituted a claim for damages following an injury sustained at work. In seeking compensation for medical expenses and general damages from his employer, he relied on medical reports from healthcare professionals. However, the applicant sought more than the reports relied upon for litigation; it requested full access to the respondent’s medical records to properly assess the claim and prepare its defence. The respondent refused to sign a consent form permitting such access, citing his constitutional right to privacy.
The judgment centres on two competing rights, the right to privacy, which protects sensitive personal and health information, and the right to a fair trial, which ensures that both parties have access to the information necessary to present their case fully. The respondent argued that disclosure would violate his constitutional rights and amount to a “fishing expedition,” particularly at a late stage in the proceedings. Conversely, the applicant maintained that, without access to the underlying medical records, it would be unable to properly evaluate the extent of the injuries or make an informed decision on whether to settle or defend the claim.
The High Court ultimately ruled in favour of the applicant, finding that the medical records were central to the respondent’s claim and that withholding them would prejudice the applicant’s ability to mount a proper defence. As a result, the court ordered the respondent to sign the consent form, granting the applicant access to the relevant medical records, and directed the respondent to pay the costs of the application.
This ruling reinforces well-established legal principles in South African law, particularly those recently articulated in Divine Inspiration Trading 205 (Pty) Ltd v Gordon and Others 2021 (4) SA 206 (WCC) and Member of The Executive Council for Health Gauteng Province v Solomons [2023] ZAGPJHC 739; 2023 (6) SA 601 (GJ) (27 June 2023). Together, these judgments establish that while lawful disclosure of medical records may be permitted in the context of litigation, such disclosure is not automatic and requires careful judicial scrutiny, particularly where the information sought concerns a person who is not a party to the proceedings.
Crucially, in Divine Inspiration Trading, the court held that a valid subpoena duces tecum may authorise the disclosure of medical records notwithstanding a claimant patient's refusal of consent thereto. This principle was, however, significantly qualified in Solomons, where the court held that a subpoena alone is insufficient where third-party medical records are sought, and that in such circumstances a formal court order is required as envisaged by section 14 of the National Health Act, it being the court, and not the Registrar issuing the subpoena, that must weigh the competing rights of privacy and dignity against the needs of litigation before authorising disclosure. The distinction between records of a party and those of a non-party is thus critical, with stricter safeguards applying where third-party information is sought.
Against this legal backdrop, the Coca-Cola judgment is distinguishable from Solomons and affirms that while privacy is a fundamental right, it is not absolute in the context of litigation. Where a party bases a claim on medical injuries, the relevant medical records become directly relevant and necessary for the fair adjudication of the dispute. Courts are therefore empowered to compel disclosure or consent where justified, ensuring that one party is not unfairly prejudiced by the withholding of crucial personal information by the other party to the dispute.
Ultimately, this case highlights the ongoing tension in modern law between protecting personal data and ensuring that justice is served. The key takeaway for litigants is clear, one cannot rely on medical evidence as the foundation of a claim while simultaneously shielding it from scrutiny. In the pursuit of justice, transparency, within reasonable and legally justified limits, remains essential.
