Deltamune (Pty) Ltd and Others v Tiger Brands Ltd and Others

• Jurisdiction: South Africa
• Citation: 2022 (3) SA 339 (SCA)

Deltamune (Pty) Ltd and Others v Tiger Brands Ltd and Others
2022 (3) SA 339 (SCA)

2022 (3) SA p339

Citation	2022 (3) SA 339 (SCA)
Case No	847/2020; [2022] ZASCA 15
Court	Supreme Court of Appeal
Judge	Zondi JA, Makgoka JA, Mokgohloa JA, Gorven JA and Meyer AJA
Heard	February 4, 2022
Judgment	February 4, 2022
Counsel	ARG Mundell SC (with S van Aswegen) for the first, thirteenth and fourteenth appellants.; H Epstein SC (with M Osborne) for the second to tenth appellants.; D Berger SC (with J Berger) for the eleventh appellant.; PG Seleka SC (with F Karachi) for the twelfth appellant (heads of argument having been prepared by PG Seleka SC, F Karachi and S Mabunda).; W Trengove SC (with M Kriegler SC, K Hofmeyr SC and R Ismail) for the respondents.

Flynote : Sleutelwoorde

Evidence — Subpoena duces tecum — Ambit — Only documents which may be sought are those which 'would' be relevant — Relevance determined with reference to pleadings — High threshold for production compared to discovery process, in terms of which discovery is in respect of documents which 'may' be relevant — Uniform Rules of Court, rule 38; Superior Courts Act 10 of 2013, ss 35(1) and 36(5).

Headnote : Kopnota

The present matter concerned the validity and enforceability of subpoenas to produce documents issued by the first to third respondents, respectively Tiger Brands Ltd, Enterprise Foods (Pty) Ltd and Tiger Consumer Brands Ltd: collectively Tiger Brands. It had its genesis in the discovery, by the National Institute for Communicable Diseases (the NICD), that an outbreak of listeriosis in South Africa between January 2016 and 3 September 2018 could be traced to Listeria monocytogenes [L Mono]-contaminated ready-to-eat processed meat products produced and packaged by Tiger Foods at its meat-processing facility in Polokwane. The High Court authorised a class action by 18 individuals against Tiger Brands for

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damages sustained consequent to the consumption of foods prepared or having passed through the Polokwane facility.

Subsequent to the certification of the action, Tiger Foods, acting under s 35(1) of the Superior Court Act 10 of 2013, read with Uniform Rule 38, issued various subpoenas duces tecum to a number of third parties: the commercial pathology laboratories, Deltamune and Aspirata (the first and fourteenth appellants, respectively), which performed testing for the presence of, inter alia, L Mono; the raw-meat suppliers Federated Meats (Pty) Ltd (the fourth appellant) and related entities (the fifth to tenth appellants); and the statutory body tasked with promoting the epidemiological surveillance and management of diseases through the monitoring of laboratory results, the National Health Laboratory Services (the NHLS) (the twelfth appellant). The subpoenas were very broad in their scope in seeking, for example: from the laboratories, all test results, and related documents and correspondence, in respect of any request from any person or entity for testing for L Mono (for the period 1 July 2017 to date of subpoena); from the Federated Meats appellants, all test results for the presence of L Mono in respect of material collected at their facilities for the period 1 January 2016 to 3 September 2018, as well as all communications concerning listeriosis made during the period 1 January 2016 to 3 September 2018; and from the NHLS, all data and test results for the period 1 July 2016 to the present for detection testing of L Mono in samples taken from any of Tiger Brands' manufacturing plants, as well as all related documents and correspondence for the same period, and all records relating to any person who had suffered from listeriosis during the period 1 September 2015 to present.

The service of the subpoenas triggered the launching of four applications in the High Court, all of which were consolidated for the purposes of hearing. Tiger Brands sought an order against the laboratories compelling them to comply with the subpoenas it had issued against them (the compel application). Deltamune, the Federated Meats appellants and the NHLS respectively sought orders aimed at setting aside the subpoenas, on the grounds, inter alia, that the documents sought were not relevant to the issues arising in the class action. The High Court granted an order compelling compliance with a somewhat amended version of the subpoenas. The High Court held that, given the 'wide-ranging sets of facts and allegations' in the particulars of claim of the class action, the wide-ranging set of information sought in the subpoenas was on the face of it relevant to the class action. The High Court, however, stressed that s 35 of the Superior Courts Act dealt only with the right to obtain production of the document as opposed to the right to view the contents of the documents. The approach of the High Court was to order the relevant defendants to deliver to the Registrar of the High Court the documents sought, which would remain inaccessible to Tiger Brands until such time as the Registrar, or the High Court on referral by the Registrar, had ruled on any objections raised to the disclosure of the documents (whether on questions of privilege, privacy or terms). The High Court dismissed the applications to set aside. The High Court granted the defendants leave to appeal to the Supreme Court of Appeal, where they argued that, despite their amended form, the subpoenas were not relevant to the class action, remained too wide in their ambit, and lacked specificity.

Re High Court's approach

The SCA was critical of the approach adopted by the High Court in entrusting and deferring determination of whether there should be disclosure to the Registrar or another court. This, it held, would lead to piecemeal litigation, against which courts had repeatedly cautioned. The result would be

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additional costs and possible delays in the finalisation of the disputes concerning the subpoenas. Inevitably, this would have a delaying effect on the finalisation of the class action. This certainly would not be in the interests of justice. The SCA asserted that the High Court should have considered the merits of the various applications and determined what could or should not be disclosed, and the terms, if any, upon which that disclosure had to take place. (See [18].)

Whether subpoenas should be set aside

The SCA addressed the question of relevance. It referred to the principle applicable to the process for the discovery of documents under rule 35. That held that rule 35 documents were discoverable if relevant, and relevance was determined with reference to the pleadings, and that asking for information not relevant to the pleaded case would be a fishing expedition. This, the SCA said, should apply too in the context of a subpoena duces tecum. A higher threshold for relevance was, however, applicable: in terms of rule 35(3) of the Uniform Rules, discovery may be requested in respect of documents 'which may be relevant', whereas in terms of s 36(5)(a) of the Superior Courts Act, documents may be subpoenaed which 'would be relevant'. Aside from the wording of the rule, other factors pointed to such stricter threshold, namely the fact that, while the discovery process was applicable only between the parties to the litigation, in terms of the process of subpoena under s 36(5) of the Superior Courts Act read with rule 38, third parties may be subpoenaed to attend court and produce documents. Third parties ought not to be required to do so unless it was absolutely necessary and there was some certainty that such documents were relevant to the issues in the underlying action. (See [20] – [22].)

The SCA held that, when regard was had to the present pleadings of the class-action plaintiffs — leaving aside the unnecessarily pleaded pieces of evidence and focusing only on the facta probanda (to which pleadings were meant to be confined), and read with the terms of the certification order which set the parameters within which the pleadings should be considered (see [25] – [27]) — the real issue between the parties was the following: Could Tiger Brands be held liable for damages in respect of injuries sustained by members of any of the four classes identified [*] as a result of the consumption of products that had been produced in, or had passed through, Tiger Brands' Polokwane facility? (See [35] – [39].) Tiger Brands, however, the SCA noted, had sought the documents it did with a view to obtaining evidence to establish whether there were alternative sources of contamination, ie to refute the allegation that it was the sole source of the contamination (see [33], [34]). But that issue was irrelevant to the issues requiring determination in the class action. The demands for production of documents in this regard were entirely speculative. (See [40] – [43], [61].) The SCA characterised the High

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Court's analysis of the pleadings as flawed, in its failure, in determining relevance, to confine its attention to the facta probanda, and ignoring the rest. (See [43].)

The SCA concluded that the third parties against whom subpoenas were sought would be unable to be of any assistance to the court in the determination of the issues raised in the class action. It held that the appeals should succeed, and the subpoenas in all the circumstances ought to be set aside. (See [62] – [64].)

Cases cited

Southern Africa

Beinash v Wixley 1997 (3) SA 721 (SCA) ([1997] 2 All SA 241; [1997] ZASCA 32): dictum at 735C – F applied

De Lange v Methodist Church and Another 2016 (2) SA 1 (CC) (2016 (1) BCLR 1; [2015] ZACC 35): dictum in para [58] applied

Helen Suzman Foundation v Judicial Service Commission 2018 (4) SA 1 (CC) (2018 (7) BCLR 763; [2018] ZACC 8): dictum in para [26] applied

McKenzie v Farmers' Cooperative Meat Industries Ltd 1922 AD 16: dictum at 23...