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6. 2.5 The plaintiff is the owner of a firearm licence, having been renewed since the accident; 6. 2.6 The plaintiff's participation in daily activities of his life is indicative thereof that he lives a normal life with no impairment in ambulating, no impairment experience when shopping and drives a motor vehicle without any hesitation."4 Issues [9] On 1 April 2022, the defendant filed Rule 36(9)(b) in respect of Mr. Dion Pienaar, as already stated a Private Forensic surveillance investigator, who owns Jodion and Associates. Having been appointed by the Hills Forensic Investigators (Pty) Ltd, he will testify that he received instructions, from attorneys acting on behalf of the defendant, to investigate the lifestyle of the plaintiff. His testimony is the genesis of this application. According to him, his brief was, inter alia, to investigate whether the plaintiff drives a modified motor vehicle for disabled persons as claimed and uses any assistive devices when ambulating. [10] Having not been provided with the plaintiff's picture, Mr. Pienaar searched on social media and obtained photos of the plaintiff's family photograph, including him carrying his grandchild. The surveillance was conducted over an extended period as follows: Chronology of surveillance 18 to 20 August 2020 [11] During the period 18 to 20 August 2020, the surveillance happened at 3[...] S[...] Street, Grootfontein, Pretoria. For three (3) days the surveillance failed to yield positive results as the house was closed without a sign of a motor vehicle or Mr. NJ de Jager. 4 Supra page 5 to 6

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NICOLAAS J DE JAGER v. NETCARE LIMITED 2024

Case Law

Country

South Africa

Country Location

Latitud: -28.58043087631903

Longitud: 24.820993917210945

Country Location (vinculado Case Law): South Africa

Decision Date: 23 may 2024

Case Status: Decision Pending

Case Outcome (Procedural)

Case Adjourned

Case Outcome (Disposition)

Monetary Damages/Fines

Keywords

Surveillance

Court Name: High Court of South Africa, Gauteng Division, Pretoria

Case Number: 42041/16

Case Summary: Plaintiff: Nicolaas J De Jager, an adult male businessman. Defendant: Netcare Limited, a company incorporated under the laws of South Africa and engaged in providing medical services. Facts The plaintiff underwent two eye surgeries. The first surgery for his right eye was successful, while the second surgery for his left eye resulted in Toxic Anterior Segment Syndrome (TASS), leading to blindness in that eye. The plaintiff claims damages against the defendant hospital where the surgeries were performed, arguing that the unsuccessful surgery directly caused his condition. Procedural History The merits of liability were settled 100% in favour of the plaintiff on 20 February 2018, and the defendant made two interim payments totalling R4.5 million. The parties separated the issues of liability and quantum, and the matter currently pertains to the quantum of damages claimed. Issues Whether the evidence provided by the defendant's forensic private investigator, Mr. Dion Pienaar, infringes on the plaintiff’s right to privacy as enshrined in section 14 of the Constitution. Whether the surveillance evidence is relevant to disproving the plaintiff’s claimed extent of damages. Rule of Law The constitutional right to privacy (section 14) and its proportionality analysis under section 36 of the Constitution. Rules of evidence concerning the admissibility of obtained information and its relevance to ongoing legal proceedings. Analysis The plaintiff contends that the surveillance conducted by the defendant’s investigator violated his constitutional right to privacy, aiming to exclude the investigator’s report and testimony from the proceedings. The defendant argues that the surveillance was necessary to ascertain the truth regarding the plaintiff’s current lifestyle and capabilities, especially in light of the substantial damages claimed. Judgment The court ordered an adjournment to allow the parties to address the constitutional issues raised concerning the plaintiff's right to privacy. The court indicated that the evidence might infringe on the plaintiff's rights but deferred a final decision to allow for possible amicus curiae submissions and further argument.

Case Significance: From the surveillance conducted by Mr. Dion Pienaar, the forensic private investigator, the following personal information about Nicolaas J De Jager was collected:

Locations and Movements:

Detailed observations were made of Mr. De Jager's movements, including specific addresses he visited in Pretoria and the Western Cape. Dates and times of his movements were logged, including activities at these locations. Lifestyle Observations:

The surveillance noted Mr. De Jager's activities, such as driving a car, shopping, and interacting with family members. Observations on his ability to ambulate unaided, his participation in outdoor activities, and his lack of need for sunglasses or other assistive devices despite his claimed visual impairment. Vehicle Information:

Specific details about the vehicles Mr. De Jager was seen driving, including make, model, and registration numbers. Family Interactions:

Interactions with his family, including his wife and grandson, were observed and noted. Activities such as shopping, taking a child to the store, and handling daily tasks were specifically mentioned. Residence Details:

Addresses of residences associated with Mr. De Jager and his family members were noted. Physical Capabilities:

Observations related to Mr. De Jager's physical capabilities, such as walking unassisted, driving, and engaging in various activities without visible impairment, were documented.

Available in

English

Related Caselaw

Constitution of South Africa

Source Name and URL: saflii

Collection

CIPIT

Date Updated: 18 feb 2025

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NICOLAAS J DE JAGER v netcare limited 2024.pdf
English
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