Levelling the Playing Field by Consent: A discussion of the Daswa Judgement

At first blush, litigation appears to be conducted on a level playing field, however, that ideal quickly falls away, particularly in claims arising out of bodily injury, when it comes to the gathering of information, until recently that is.

The cornerstone of litigation is aptly premised in the well known phrase, “Your case is only as good as the facts.” One would then naturally ask the question whether the playing field is in fact level if only one party has access to “the facts” whereas the other is precluded from accessing same. This hurdle is easily overcome by obtaining the requisite consent(s) from the other party. What then happens if one party refuses such consent?  This precise issue arose recently in Coca Cola Beverages South Africa (Pty) Ltd v Daswa (7480/2020) [2026] ZALMPPHC 20 ("Daswa").

Daswa provides much needed clarity and affirms that access to underlying medical information is essential for fairness and proper defence preparation, and that parties cannot withhold consent to its disclosure. As a defence attorney my views may be somewhat biased, but I would go so far as to say that the dictum ought to apply to all information relevant to the assessment of the claim and not only be restricted to medical information.

The court in Daswa was called on to consider an interlocutory application in terms of which an order was sought by the defendant to compel the plaintiff to provide a medical consent authorizing the defendant to gain access to the plaintiff’s medical information. The plaintiff had previously refused to accede to this request, hence the application. These records formed the basis of the main action and were required by the defendant to brief medical experts, assess liability, and determine whether to settle or proceed with defending the matter. 

The plaintiff argued that the application was too wide and would result in information being disclosed that was “not relevant to and had no bearing on the matter […] the important documentation was already disclosed”. In this case the plaintiff saw fit to provide only an expert report in respect of an X-ray, a Bone scan report and a final medical report. No further medical records were provided to the defendant in respect of a claim which included future hospital and medical expenses just shy of one million rand. No information was provided in respect of the plaintiff’s previous medical history either. The plaintiff’s argument directly highlighted the asymmetry that could exist in our legal system. 

The defendant argued that without access to the underlying medical records, it could not properly assess the claim, brief experts, or determine whether to defend or settle. The plaintiff’s refusal created a substantive imbalance in the litigation playing field. 

Although consent in Daswa was sought at a stage long after the matter had already taken shape, the Court ordered the plaintiff to provide consent. In granting the order the Court emphasised that 

“[T]he medical records were the founding documents […]. They were relevant and had bearing on the treatment received and the attempts made to assist the respondent in his healing. […] the respondent's submissions and right to claim privilege in respect of the relevant medical records conflicted with fair trial proceedings, which is enshrined in our Constitution. These medical records were relevant and necessary to the applicant's defence and as such the refusal by the respondent to sign the consent form was unwarranted and prejudicial to the applicant.” (own emphasis)

Our Constitution protects the right to privacy, including the confidentiality of medical information disclosed to healthcare practitioners. This protection is reinforced through an abundance of privacy legislation aimed at ensuring personal information is not disclosed to third parties without consent. If consent is refused, the only other option available to defendants is to cause a subpoena duces tecum to be served on the plaintiff’s treating practitioners. However, this process does not lend itself to the early investigation (and potentially settlement) of claims for damages. It is worth emphasising what was stated in the case of Divine Inspiration Trading 205 (Pty) Ltd and Another v Gordon and Others (22455/2019) [2021] ZAWCHC 38 (“Divine Inspiration Trading”), in respect of a subpoena duces tecum where consent was refused: 

“Section14(2)(b) of the NHA, like s7 of PAIA, demonstrates a clear show of deference for the rules, and health practitioners, whose patients refused to consent to the disclosure of their medical records, cannot therefore rely on s14, without more, when they are served with a subpoena duces tecum under rule 38. It goes without saying that ethical rules are subject to these principles.” 

In assessing this balance, it is essential to recognise that section 34 of our Constitution guarantees that “everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court…”. Naturally fairness dictates that the playing field of litigation be levelled.

Further, section 32 of the Constitution guarantees that  “everyone has the right of access to any information that is held by another person and that is required for the exercise or protection of any rights.”

Access to information enables parties to meaningfully participate in litigation and ensures that disputes are resolved on the basis of full and accurate facts. After all, one’s case is only as good as the facts. The right to a fair public hearing encompasses the ability of each party to understand and respond to the case against them, which cannot be achieved where one party controls the evidentiary record. These constitutional guarantees do not extinguish privacy rights, but they require a proportional approach, one that permits justified disclosure where it is necessary for the administration of justice.

The Daswa case further illustrates that discovery and pre‑trial procedures, while essential, do not always provide sufficient visibility into the underlying medical records relevant to personal injury claims. Expert reports often summarise the conclusions of medical practitioners but do not disclose the underlying records that inform those conclusions. Without access to such records, defendants are required to litigate in partial darkness, guided only by what plaintiffs elect to disclose.

Courts have repeatedly confirmed that litigants should not be incentivised to withhold relevant information, as doing so undermines the proper administration of justice. Discovery is intended to promote full and frank disclosure so that litigation proceeds efficiently and fairly, yet without mechanisms such as those affirmed in Daswa, this cannot be achieved. 

Daswa illustrates that fairness in litigation requires more than procedural symmetry, it demands equal access to the information that underpins any action.  When one party controls both the narrative and the evidentiary record, the other party is left to navigate the litigation playing field in darkness. Fortunately, Daswa has now clarified the rules of engagement, effectively levelling the playing fields.