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WILSON J:
1 On 17 April 2026, I gave judgment directing the first and second respondents,
the NHLS / NICD, to release a range of defined confidential medical
information to the applicants, subject to terms and conditions meant to govern
its use and preserve its confidentiality (see Ngobeni v National Health
Laboratory Service [2026] ZAGPJHC 370 (17 April 2026)). The information
had to be released because the applicants needed it to pursue their class
action against the fourth to sixth respondents, Tiger Brands. The class action
arose from what the applicants say was Tiger Brands’ negligent failure to
ensure that its food products were supplied free of contamination by listeria.
That class action, though certified in 2018, is yet to go to trial. The information
I ordered be released is material to the parties’ attempts to settle the matter,
or, in the event that the matter cannot be settled, to prove their case at trial.
2 The NHLS / NICD, as the holders of the information, formally abided the
application to procure its release. However, on the evening before the matter
was to be heard on an unopposed basis before me, the NHLS / NICD filed a
lengthy affidavit that took issue with material parts of the relief the applicants
sought. In other words, the NHLS / NICD changed its position from one of
indifference to the relief sought to one of active opposition to it, at least in the
form that it was sought. It turned out that the bases of the NHLS / NICD’s
opposition either had no merit at all, or could easily be catered for by minor
amendments to the applicants’ draft order. I granted very slightly amended
relief once the nature of the NHLS / NICD’s belated objections became clear
to me.
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3 Still, the manner in which NHLS / NICD had placed its misgivings before me
left a great deal to be desired. Having formally abided my decision, they waited
until just hours before the matter was to be heard before changing their
position in a lengthy affidavit that they must have known I would have no real
chance to absorb before the hearing. That was compounded by their failure to
send counsel to court to explain the affidavit and motivate for the minimal
changes to the applicants’ draft order that turned out to have been justified.
4 This conduct had real consequences. For the reasons I gave in my judgment
of 17 April 2026, I could not simply treat the application as unopposed. I was
statutorily obliged to consider and come to grips with the tardy affidavit. The
application could not be decided on the day for which it was set down (being
but one of 59 cases on my roll that day), and further submissions were made
necessary. These submissions were compiled and delivered, no doubt at
significant cost to the applicants and to Tiger Brands.
5 Bearing in mind the inconvenience caused to the court, the additional costs
caused to the applicants and Tiger Brands, and the fact that the applicants
had, in their notice of motion, only waived their claim for costs on condition
that the application would remain unopposed, I directed that the NHLS / NICD
should explain why they ought not to pay the costs of the application on the
scale as between attorney and client. I gave the NHLS / NICD an opportunity
to file the material necessary for me to consider that question. That material
was filed on 14 May 2026, and answer ed by both the applicants and Tiger
Brands on 18 May 2026.
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6 Having considered the relevant material, I am convinced that an attorney and
client costs order should be made. Much of the material the NHLS / NICD
placed before me sought to retread old ground. I was told a great deal about
the Supreme Court of Appeal’s decision in Deltamune (Pty) Ltd v Tiger Brands
Limited 2022 (3) SA 339 (SCA), which dealt with an earlier dispute between
the parties about the apparent overbreadth of a subpoena. I was also given a
precis of some of the parties’ earlier communications. That material was
plainly irrelevant to my decision.
7 What was required in, but absent from, the NHLS / NICD’s costs affidavit was
a full explanation of why their affidavit in the main case was only filed at the
last minute, why the NHLS / NICD changed their attitude toward the
application in that affidavit, and why nobody was sent to court to explain the
contents of the affidavit and the change of stance that it embodied. While the
costs affidavit does accept that the NHLS / NICD’s conduct resulted in
“unintended consequences”, for which an apology was tendered (NHLS /
NICD Costs Affidavit, paragraph 59.2), the costs affidavit does not disclose an
understanding of the extent of the additional cost and inconvenience the NHLS
/ NICD’s manner of proceeding had caused.
8 The best that can be said for the NHLS / NICD is that, as counsel emphasised
in their written submissions, the NHLS / NICD did not conduct themselves in
bad faith, and that they did not intend to cause the additional costs,
inconvenience and confusion that they did. I accept all of that, but I point out
that far more was expected of the NHLS / NICD than the absence of bad faith.
As organs of state, they are under a constitutional obligation to assist and
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protect the courts and ensure our effectiveness (see section 165 (4) of the
Constitution, 1996). They are also under a duty of fair and transparent dealing
toward the applicants and Tiger Brands. An affidavit of the length filed must
have been days or weeks in preparation. Neither I nor the applicants, nor Tiger
Brands were given any indication that it was coming, much less that it would
be filed late in the evening before the hearing. The failure to warn the parties
or the court that the affidavit was on its way was, to put it mildly, neither fair
nor transparent.
9 Accordingly, it seems to me that good-natured ineptitude is insufficient to
escape a costs order in this case. As organs of state, the NHLS / NICD are
under a duty to act professionally, fairly and appropriately as litigants, to make
their position clear, and to afford the court the assistance necessary to
appreciate fully what that position is. An organ of state is not “an indigent or
bewildered litigant, adrift on a sea of litigious uncertainty, to whom the courts
must extend a procedure-circumventing lifeline. It is the Constitution’s primary
agent. It must do right, and it must do it properly” (MEC for Health, Eastern
Cape v Kirland Investments (Pty) Ltd 2014 (3) SA 481 (CC), paragraph 82).
Failing that, the least that could be expected of the NHLS / NICD is that they
display a full appreciation of how their conduct has fallen short of the
applicable standard.
10 The NHLS / NICD’s conduct to date possesses none of these attributes. I see
no reason why the applicants and Tiger Brands ought to bear the costs of their
ineptitude. This is precisely the sort of case where an attorney and client costs
order is necessary both to signal that higher standards are required of litigants
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This judgment was prepared by Judge Wilson. It is handed down electronically by
circulation to the parties or their legal representatives by email, by uploading it to the
electronic file of this matter on Caselines, and by publication of the judgment to th e
South African Legal Information Institute. The date for hand-down is deemed to be 27
May 2026.
SUBMISSIONS ON: 4 and 18 May 2026
DECIDED ON: 27 May 2026
For the Applicants: C Steinberg SC
(Heads of argument drawn by C Steinberg SC, M
Bishop, M Mbikiwa, E Cohen)
Instructed by Richard Spoor Inc
For the First and P Seleka SC
Second Respondents: F Karachi
Instructed by Lawtons Africa
For the Fourth, Fifth M Kriegler SC
And Sixth Respondents: Instructed by Clyde & Co. Inc