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

Tiger Brands faced a class action arising from a listeriosis outbreak in South Africa between January 2017 and 3 September 2018. The outbreak was traced to ready-to-eat meat products contaminated with Listeria monocytogenes (L. mono) produced at Tiger Brands' Polokwane facility. The National Institute for Communicable Diseases (NICD) determined that the Polokwane facility was the source of contamination with the ST6 strain. On 3 December 2018, the high court certified four classes of plaintiffs for the class action. Thereafter, Tiger Brands issued subpoenas duces tecum against various third parties not involved in the class action, including commercial laboratories (Deltamune and Aspirata), meat suppliers (Federated Meats appellants), the National Health Laboratory Services (NHLS), and requested documents relating to listeria testing. The subpoenas were challenged as irrelevant, too wide, lacking specificity, and constituting a fishing expedition.

• Whether subpoenas duces tecum issued against third parties were relevant to the underlying class action
• Whether the ambit of the subpoenas was too wide and lacked the specificity required by rule 38(1)(a)(iii) of the Uniform Rules
• Whether the subpoenas constituted an abuse of process and a fishing expedition
• The proper test for relevance in the context of subpoenas duces tecum compared to discovery under rule 35
• Whether documents sought must be relevant to the pleaded case as defined by the certification order in a class action

The appeals were upheld with costs, including costs of two counsel. The subpoenas against Deltamune, Aspirata, and the NICD were set aside entirely. The subpoenas against the Federated Meats appellants were set aside except for the portion requiring production of safety protocols (HACCP, method descriptions, sample handling processes) for the period 1 January 2016 to 3 September 2018, which were to be furnished within one month. Tiger Brands was ordered to pay costs in each matter.

The binding legal principles established are: (1) In determining whether documents sought by subpoena duces tecum are relevant, courts must focus on the facta probanda (material facts necessary to establish the cause of action) as defined by the pleadings and, in class actions, the certification order, not on facta probantia or evidentiary matters. (2) A higher threshold of relevance applies to subpoenas duces tecum against third parties than applies to inter-party discovery under rule 35 - documents must "be relevant" under s 36(5)(a) of the Superior Courts Act, not merely "may be relevant" as in rule 35(3). (3) Subpoenas duces tecum must comply with the specificity requirement in rule 38(1)(a)(iii) of the Uniform Rules and must "specify" the documents or things required, not use vague, generalized language that leaves it to the recipient to determine what is covered. (4) A subpoena may be set aside under s 36(5)(a) of the Superior Courts Act or under a court's inherent jurisdiction where it is satisfied as a matter of certainty that the witness will be unable to provide any evidence or documents relevant to any issue in the proceedings. (5) The parameters of a certified class action define the scope of relevant evidence, and documents relating to matters outside those parameters are not relevant even if they concern the broader subject matter of the litigation.

The Court observed that the class action plaintiffs' particulars of claim were not a model of clarity and brevity as required by rule 18(4) of the Uniform Rules, containing substantial amounts of evidence rather than material facts. The Court noted that the high court's approach of deferring determination of disclosure issues to the Registrar or another court would lead to piecemeal litigation, additional costs, and delays contrary to the interests of justice. The Court commented that Tiger Brands had never sought to challenge the NICD's determination that the Polokwane facility was the source of the outbreak, and its own expert confirmed the NICD's methods were consistent with accepted practices. The Court indicated that heating raw meat to 75 degrees Celsius destroys listeriosis risk, which was relevant to assessing the utility of test results from suppliers of raw meat. The Court also remarked on the appropriateness of allowing costs of two counsel given the importance of the issues raised in the appeal.

This case establishes important principles regarding the scope and limits of subpoenas duces tecum in South African civil procedure, particularly in the context of class actions. It clarifies that: (1) a higher threshold of relevance applies to subpoenas against third parties compared to inter-party discovery; (2) relevance must be determined with reference to the pleadings and, in class actions, the certification order which defines the parameters of the action; (3) subpoenas must be specific and cannot use vague, generalized language that requires the recipient to make judgments about what documents are covered; (4) subpoenas cannot be used for fishing expeditions to find alternative sources of liability not relevant to the pleaded case; and (5) courts must distinguish between facta probanda and facta probantia when assessing relevance. The judgment reinforces protections for third parties against overly broad discovery requests and emphasizes that the search for truth in litigation must be confined to evidence relevant to the actual issues in the case.