In February 2025, the High Court held that surveillance evidence of a claimant, taken in public, was admissible and lawfully processed under the Protection of Personal Information Act (POPIA) where it was necessary to defend a substantial civil claim. The court emphasised that privacy rights must be balanced against the public interest in discovering the truth, and that where legislation like POPIA deal specifically with Constitutive rights, litigants must rely on that statute rather than invoke the provisions of the Constitution directly.
The surveillance record comprised photographs and video captured in public settings, including at a filling station and in a park while the claimant was walking. The material documented his movements and activities for purposes of testing health‑related allegations and formed part of an investigator’s report tendered at trial.
The court applied the principle known as subsidiarity: if legislation gives effect to a right, parties must use that legislation or challenge its constitutionality. Here, the dispute was about privacy. The court therefore assessed admissibility under POPIA. It confirmed that POPIA’s section 6(1)(e) exclusion for “judicial functions of a court” protects the administration of justice and should not be read accordingly – processing of personal information in connection with court proceedings is not prohibited simply because it is personal.
Even if POPIA applied on the facts, the surveillance withstood scrutiny. Section 11(1)(f) permits processing that is necessary for pursuing the legitimate interests of the responsible party or a third party. Secondly, because the information included health-related material, it was “special personal information,” which triggers section 27(1)(b). That provision authorises processing where it is necessary for the establishment, exercise of a right or exercise of an obligation in law. The defendant’s need to gather evidence to test the claimant’s alleged loss fell squarely within this ground.
The court’s proportionality analysis was important. The surveillance occurred in a public space, which reduced the privacy intrusion. The purpose was directly linked to the litigation, there was a rational connection between the images and the facts in dispute, and there were no less restrictive, equally effective means to achieve the purpose. By contrast, surveillance in a private home would likely be an egregious violation and impermissible.
Consent and notification arguments did not displace these conclusions. Section 18 allows non-compliance with notification where non-compliance is necessary for conduct of proceedings that have commenced or are reasonably contemplated. Forewarning the plaintiff would have undermined the point of the surveillance.
The court drew a clear line around third parties and children. It expressed concern about processing the personal information of non-parties and highlighted POPIA’s protections for children. It ordered that images and information of non-data subjects, including children, be redacted.
Taken together, the judgement underscores two points. First, where legislation like POPIA deals specifically with a Constitutional right, the starting point is to rely on statute (or challenge its constitutionality) rather than appeal directly to the Constitution. Second, surveillance material may be admissible and lawfully processed when it is gathered for the establishment, exercise, or rights in litigation, particularly where it is closely tied to the issues in dispute, proportionate to that purpose and mindful of protections for third parties.
De Jager v Netcare Limited and Others (42041/16) [2025] ZAGPPHC 141 (17 February 2025)