On 4 February 1997, the Constitution of the Republic of South Africa came into effect. The Constitution defines South Africa as a democratic state based on the principles of human rights, constitutional supremacy, the rule of law, and adult suffrage. The Bill of Rights is contained in Chapter 2 of the Constitution and sets out civil, economic, social, and cultural human rights. Included in the Bill of Rights is Section 14 – the right to privacy. It states:
“Everyone has the right to privacy, which includes the right not to have their person or home searched; their property searched; their possessions seized; or the privacy of their communications infringed.”
In 2020, the Protection of Personal Information Act (POPIA) came into force to regulate the right to privacy as enshrined in Section 14 of the Constitution. POPIA aims to protect personal information processed by public and private bodies. The Act provides that personal information may only be processed with the consent of the data subject, or if it is necessary for the conclusion of a contract, required by law, protects a legitimate interest of the data subject, or is necessary for pursuing the legitimate interests of the responsible party or a third party to whom the information is supplied.
A person’s right to privacy, including the right not to have their photos taken without their consent, was considered by the Johannesburg High Court in the matter of De
Jager v Netcare Limited [2025] ZAGPPHC 141. The court had to determine whether pictures captured by a private investigator could be used in a trial. This raised the need to balance the right to privacy with Section 36 of the Constitution, which provides that rights in the Bill of Rights may be limited if the limitation is reasonable and justifiable.
Mr. De Jager underwent surgery on his left eye at a Netcare facility. After the surgery, he contracted an illness that resulted in blindness in his left eye. De Jager claimed damages from Netcare, and the parties initially settled on a compensation amount. However, De Jager later increased his claim to include future loss of earnings and loss of earning capacity.
In response, Netcare submitted that De Jager walked without assistance, drove without impairment, and participated in daily activities, indicating that he led a normal life, unaffected by any disability. In support of their submission, Netcare sought to introduce evidence — including photographs and surveillance footage — taken by a private investigator. These showed De Jager driving a car, shopping unassisted at the mall, carrying shopping bags with ease, hiking with his family without a walking stick, and exceeding the speed limit — all behaviours suggesting his visual impairment did not significantly limit his daily activities.
De Jager opposed the submission of the photographic evidence, arguing that the surveillance infringed on his Section 14 constitutional right to privacy. He further submitted that, in terms of POPIA, no person’s pictures or personal information may be processed and distributed without their consent.
Netcare, however, argued that the photos were admissible in terms of Section 6(1)(e) of POPIA, which states that the Act does not apply in relation to the judicial functions of a court. Since the trial was a judicial function — specifically a civil trial — they argued that the evidence was therefore admissible. The court also noted that, because the claim related to De Jager’s health and ability to earn, it was not precluded from considering such evidence.
De Jager further argued that he should have been informed by Netcare of their intention to collect his personal information and to photograph him — essentially, that
his consent should have been obtained. However, this argument did not persuade the court, which held that if De Jager had been informed beforehand, he would likely have altered his behaviour to suit his claim, effectively undermining the truth-finding process.
The court concluded that it was in the interests of justice to admit the evidence obtained through surveillance. It further found that such processing of information was lawful under Section 27(1)(b) of POPIA. However, the court ruled that all photos containing minor children would have to be redacted.
Conclusion
The De Jager v Netcare matter highlights the careful balance our courts must strike between safeguarding personal privacy and ensuring a fair trial. While the right to privacy remains a fundamental principle in South African law, it is not without limits, especially when a claim places an individual’s condition directly in question. The court’s ruling makes it clear: where evidence is necessary to test the truthfulness of a claim, and where the collection of such evidence serves the interests of justice, it may justifiably be admitted, even if obtained through surveillance. This judgment not only clarifies how privacy and POPIA should be interpreted in legal proceedings but also affirms the courts’ commitment to fairness, accountability, and the proper administration of justice.
Vuyiswa Miya-Mokwana
Industrial Relations Executive
