THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable

Case no: 847/2020
In the matter between:
DELTAMUNE (PTY) LTD

FIRST APPELLANT
RED MEAT INDUSTRY FORUM

SECOND APPELLANT
THE ASSOCIATION OF MEAT IMPORTERS         THIRD APPELLANT
& EXPORTERS
FEDERATED MEATS (PTY) LTD

FOURTH APPELLANT
CURLY WEE BOERDERY (PTY) LTD
FIFTH APPELLANT
IBIS PIGGERY (PTY) LTD

SIXTH APPELLANT
KOO KOO ROO CHICKENS CC

SEVENTH APPELLANT
t/a MARIOS MEAT
MOLARE INVESTMENTS (PTY) LTD
EIGHTH APPELLANT
NEW STYLE PORK (PTY) LTD

NINTH APPELLANT
t/a LYNCA MEATS
WINELANDS PORK (PTY) LTD

TENTH APPELLANT
FAMOUS BRANDS MANAGEMENT
ELEVENTH APPELLANT
COMPANY (PTY) LTD
NATIONAL HEALTH LABORATORY
TWELFTH APPELLANT
SERVICE
JASOMAY PILLAY

THIRTEENTH APPELLANT
ASPIRATA AUDITING TESTING &
FOURTEENTH APPELLANT
CERTIFICATION (PTY) LTD

and

TIGER BRANDS LIMITED                                       FIRST RESPONDENT
ENTERPRISE FOODS (PTY) LIMITED             SECOND RESPONDENT
TIGER CONSUMER BRANDS LIMITED              THIRD RESPONDENT

Neutral citation: Deltamune (Pty) Ltd and Others v Tiger Brands Limited and
Others (Case no 847/2020) [2022] ZASCA 15 (4 February 2022)
Coram:
ZONDI, MAKGOKA, MOKGOHLOA and GORVEN JJA and
MEYER AJA
Heard:
4 NOVEMBER 2021
Delivered: This judgment was handed down electronically by circulation to the
parties’ representatives by email, publication on the Supreme Court of Appeal
website and release to SAFLII. The time and date for hand down is deemed to be
10h00 on the 4th day of February 2022.
Summary: Subpoenas duces tecum – whether the subpoenas issued against third
parties relevant to underlying class action – whether ambit of subpoenas too wide.

________________________________________________________________
ORDER
________________________________________________________________
On appeal from: Gauteng Division of the High Court, Johannesburg (Lamont J
sitting as court of first instance):
In the Deltamune and Aspirata appeal
1    The appeal is upheld with costs, including the costs of two counsel.
2    The order of the high court is set aside and replaced with the following order:
‘1   Each of the applications by the first, second and third applicants against
the second respondent and the fourth respondent respectively, is dismissed.
2   The counter-application by the fourth respondent against the first, second
and third applicants to set aside the subpoena served on it on 13 May 2019
succeeds.
3 The subpoenas served on the second and fourth respondents on 13 May 2019
and 15 May 2019, respectively, are set aside.
4    The first, second and third applicants are ordered to pay the costs in respect
of the main application and the counter-application, including the costs of two
counsel where so employed.
In the Federated Meats appeal
1  The appeal is upheld with costs, including the costs of two counsel, save to
the extent set out in paragraph 2 below.
2 The order of the high court is altered to read as follows:
‘1   The application succeeds save to the extent set out in paragraph 2 below.
2   The subpoenas served on each of the first to sixth applicants are set aside,
except the portion which requires the first to sixth applicants to furnish:

“(a) All records of protocols applicable during the period 1 January 2016 to
3 September 2018 regarding any aspect of the control or testing methodology
for the presence, enumeration and/or sequence type of microbial hazards
including Listeria monocytogenes involving but not limited to your:
(i) Hazard Analysis and Critical Control Points (HACCP);
(ii) Method descriptions; and
(iii) Sample handling processes”,
which documents shall be furnished within one month of the service of the
subpoenas on the first to sixth applicants.
3 The first, second and third respondents are ordered to pay the costs, including
the costs of two counsel.’
In the National Institute for Communicable Diseases appeal
The appeal is upheld with costs, including the costs of two counsel.
The order of the high court is set aside and replaced with the following
order:
‘1   The application succeeds.
2   The subpoena issued by the first, second and third respondents dated
23 May 2019 against the applicant is set aside.
3    The first, second and third respondents are ordered to pay the costs, including
the costs of two counsel.’

________________________________________________________________

JUDGMENT
________________________________________________________________

Makgoka JA (Zondi, Mokgohloa and Gorven JJA and Meyer AJA
concurring):
[1] The appellants appeal against an order of the Gauteng Division of the
High Court, Johannesburg (the high court), upholding the validity and
enforceability of subpoenas to produce documents issued by the respondents,
Tiger Brands Limited and its two operating subsidiaries, Enterprise Foods (Pty)
Limited and Tiger Consumer Brands Limited (collectively ‘Tiger Brands’). The
appeal is with the leave of the high court.
[2] Tiger Brands faces a class action in the high court as a result of the outbreak
of listeriosis in South Africa between January 2017 and 3 September 2018. A
number of people across the country contracted an infection of the bacterium
Listeria monocytogenes (L. mono)1 as a result of consuming contaminated
ready-to-eat meat products produced by Tiger Brands. The subpoenas were issued
pursuant to that class action. None of the appellants are party to the class action.
[3] The factual background is this. Tiger Brands produces and markets
ready-to-eat processed meat products including vienna sausages and polonies.
It owned and operated a meat processing facility in Polokwane (the Polokwane
facility) where it produced and packaged its products for distribution. The
products were marketed and distributed to various wholesale and retail outlets for
sale to the public. In respect of the listeriosis outbreak, the National Institute for
Communicable Diseases (the NICD)2 determined that the ready-to-eat meat

1 Listeria monocytogenes is the species of pathogenic bacteria that causes the infection listeriosis.
2 The National Institute for Communicable Diseases (the NICD) is a national public health institute, providing
reference to microbiology, virology, epidemiology, surveillance and public health research to support the
government's response to communicable disease threats.

products processed at the Polokwane facility were the source of the
contamination, and the outbreak.
[4] On 3 December 2018 the high court authorised a class action by
18 individuals against Tiger Brands for damages allegedly suffered as a result of
the L. mono infection. In its order, the high court certified four classes of
plaintiffs. The first class consists of those who contracted listeriosis as a result of
eating the contaminated food products. The second class comprises those who
contracted listeriosis while in utero, as a result of their mothers eating the
contaminated food. The third class comprises the dependents of those who died
from contracting listeriosis as a result of eating the contaminated food products.
The fourth class is made up of those who maintained other persons who
contracted listeriosis, as a result of eating contaminated food products; or his or
her mother eating such products while carrying that person in utero.
[5] Common to all four classes is the alleged link between a person contracting
listeriosis as a result of eating (or somebody else having eaten) contaminated food
that originated from, or passed through, the Polokwane facility during the relevant
time period being between 23 October 2016 and 3 September 2018, and who
sustained damages as a result.
[6] Pursuant to the certification order, the class action representative plaintiffs
instituted action against Tiger Brands, seeking declaratory orders that: (a) during
the period 23 October 2016 to 4 March 2018 Tiger Brands supplied L. mono
contaminated ready-to-eat processed meat products; and (b) Tiger Brands, as
producer, distributor or retailer, is strictly liable in terms of s 61 of the
Consumer Protection Act 68 of 2008 to the class action members for harm
resulting from its production of the contaminated products. Tiger Brands

defended the action and delivered a plea, denying liability on any of the bases
alleged by the class action plaintiffs.
[7] Tiger Brands subsequently issued the impugned subpoenas, which required
the recipients thereof to produce swathes of documents, items and things, mainly
in respect of test results conducted for the L. mono. The subpoenas were issued
against the following parties: the first appellant, Deltamune (Pty) Ltd
(Deltamune); the fourth appellant, Federated Meats (Pty) Ltd and fifth to tenth
appellants (the Federated Meats appellants); the twelfth appellant, the National
Health Laboratory Services (the NHLS),3 as well as against the fourteenth
appellant, Aspirata (Pty) Ltd (Aspirata).4 The subpoenas were issued in terms of
s 35(1) of the Superior Courts Act 10 of 2013,5 read with rule 38 of the
Uniform Rules of Court (the Uniform Rules) which regulates the procedure for
the procurement of evidence by subpoena.6
[8] No subpoenas were issued against the second appellant, the Red Meat
Industry Forum (the Meat Forum), the third appellant, the Association of Meat
Importers and Exporters (the Meat Association) and eleventh appellant,
Famous Brands Management Company (Pty) Ltd (Famous Brands). Their
involvement in the matter is purely to the extent their interests could be affected
by the subpoenas.

3The NHLS is a juristic person established as such in terms of s 3 of the National Health Laboratory Service Act
37 of 2000. One of its statutory functions is to promote co-operation between South Africa and other countries
with regard to the epidemiological surveillance and management of diseases through the monitoring of laboratory
test results.
4 The thirteenth appellant is the laboratory manager of Aspirata and the subpoena against Aspirata was served on
her in her capacity as such.
5 Section 35(1) of the Superior Courts Act 10 of 2013 provides that:
‘A party to proceedings before any Superior Court in which the attendance of witnesses or the production of any
document or thing is required, may procure the attendance of any witness or the production of any document or
thing in the manner provided for in the rules of that court.’
6 Rule 38(1)(b)(ii) of the Uniform Rules of Court reads:
‘Within 10 days of receipt of a subpoena requiring the production of any document, any person who has been
required to produce a document at the trial shall lodge it with the registrar, unless such a person claims privilege.’

[9] It is necessary to briefly describe the recipients of the subpoenas.
Deltamune and Aspirata are commercial pathology laboratories (the laboratories).
They are accredited by the South African National Accreditation System
(SANAS) and their laboratories are accredited in terms of a national standard
which sets requirements for the competence of testing and calibration
laboratories. They test, among others, for the presence and/or amount of any
species of the bacterium Listeria, including L. mono.
[10] Federated Meats, as well as the fifth to tenth appellants, all supply meat
products to Tiger Brands. Except for the ninth appellant, which supplies and
distributes processed meats to Tiger Brands, the rest of the suppliers only supply
raw meat products to Tiger. The twelfth appellant, the NHLS is a statutory body
established in terms of s 3 of the National Health Laboratory Service Act 37 of
2000. One of its statutory functions is to promote the epidemiological surveillance
and management of diseases through the monitoring of laboratory test results.
[11] The service of the subpoenas triggered the launching of four applications
in the high court, to which this appeal is a sequel. In no particular order, one was
brought by Tiger Brands against the laboratories to compel compliance with the
subpoenas it had issued against them (the compel application). The other three
applications were aimed at setting aside the subpoenas, brought respectively by
Deltamune; the Federated Meats appellants; and the NHLS (the set aside
applications). In both Tiger Brands’ application to compel, and Deltamune’s
application to set aside, the Meat Forum and the Meat Association were cited as
respondents, they being interested meat industry entities. They filed an answering
affidavit in each application, supporting the laboratories’ objection to producing
the documents.

[12] Famous Brands was granted leave to intervene in Tiger Brands’ application
to compel against the laboratories, and in Deltamune’s application to set aside the
subpoenas. It, and its related companies, are clients of both laboratories. Its
interest in the matter is that the subpoenas served on the laboratories include
within their scope documents relating to it concerning testing for L. mono.
Famous Brands supported the laboratories’ objection to produce the documents.
[13] Broadly, the objections to the subpoenas were premised on the grounds
that: (a) the documents are not relevant to the issues arising in the class action;
(b) the breadth of the requests constituted an abuse of the court process; (c) the
subpoenas amounted to a ‘fishing expedition’; (d) the information in the
requested documents was confidential and private.
[14] The four applications were consolidated, and came before the high court
(Lamont J), during which Tiger Brands conceded that its subpoenas had been too
widely framed and that it had sought more than it was entitled to obtain. Pursuant
to that concession, Tiger Brands amended the subpoenas by reducing the ambit
of documents requested. This notwithstanding, the appellants persisted with their
objections and sought to set aside the subpoenas in their entirety.
[15] The high court did not specifically consider any of the bases of objections
referred to earlier. Instead, it considered that given the wide-ranging factual
allegations made by the class action plaintiffs in the particulars of claim, every
conceivably relevant document should be produced, upon which issues of
relevance would be determined. The amended subpoenas found favour with the
high court. It observed that the facts pleaded by the class action plaintiffs
depended on evidence from different sources as well as opinions obtained from
different persons, both in the formulation of the claim and in the evidence which
would be led at the trial. The court reasoned as follows:

‘. . . There is evidence before me which expresses the opinion that all the documents sought by
Tiger are relevant to establish what the facts were; which facts are correct, and which facts are
relevant to form an opinion. The opinion that all the documents are required may, in due course,
be found to be mistaken once all the facts are known. At present, it cannot with precision be
determined to what extent the documents are required. It will only be possible to establish what
the extent of the enquiry should have been once the documents have been considered. On the
face of it, the evidence sought is germane to establish facts, to found an opinion; to controvert
the rationality of the opinion expressed in the particulars of claim; and to cross examine
witnesses and so on. From a factual point of view, the documents are relevant.’
[16] The high court further remarked that s 35 of the Superior Courts Act deals
with the right to obtain production of the document as opposed to the right to view
the contents of the document. In terms of that section, continued the high court,
documents can be obtained for production in court.  The fact that the document is
produced does not entitle anyone to access its contents. The court emphasised that
the right to see the contents will be determined once the documents have been
produced. It further said that the purpose of s 35 was to permit the Registrar to
hold the documents pending future rulings to be made by a court in respect of
claims of privilege, privacy and the terms of disclosure before the date of the trial.
The question of what controls and restrictions should be imposed on the access
of the contents of the documents was left for future determination either by the
Registrar or by a different court prior to the hearing.
[17] Pursuant to that approach, the high court: (a) granted Tiger Brands’
application to compel against the laboratories and (b) dismissed the respective set
aside applications by Deltamune; the Federated Meats appellants; and NHLS.
However, in line with Tiger Brands’ concession referred to in para 15 above, the
court reduced the ambit of the subpoenas in terms of the number of documents.
In each of the applications the high court ordered the recipients of the subpoenas
to deliver the requested documents to the Registrar within one month of the
service of the order on them, but held that the production of the documents did

not automatically entitle Tiger Brands to access their contents. The order, in each
case, was subject to, among others, the following conditions:
‘7. At the time of delivery of the documents to the Registrar, [the recipients of the subpoenas]:
7.1   shall identify those documents in respect of which privilege is claimed and stating the
nature and extent of the privilege and;
7.2   those documents in respect of which there is an objection to any person having access to
the contents including the reasons for the objection;
7.3    those documents in respect of which there is no objection to the production and inspection.
8.   The registrar shall comply with the obligations imposed upon him by the Rules and shall
make such rulings as he may deem appropriate.
9.  The registrar’s powers shall include the right to refer any issue upon which he is called to
make a ruling to Court…’
[18] The high court effectively entrusted and deferred the determination of
whether there should be disclosure to the Registrar or another court. Its approach
would lead to piece-meal litigation, against which courts have repeatedly
cautioned.7 The result would be 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 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.
[19] It now falls on this Court to embark on that exercise. On appeal, the
appellants contend that the subpoenas should have been set aside in their entirety.
They contend that, despite their amended form, the subpoenas are not relevant to

7 See for example, South African Transport and Allied Workers Union v Garvis and Others [2011] ZASCA 152
2011 (6) SA 382 (SCA) para 46; De Lange v Presiding Bishop of the Methodist Church Southern Africa for the
time being and Another [2015] ZACC 35; 2016 (1) BCLR 1 (CC);2016 (2) SA 1 (CC) para 58.

the class action, remain too wide in their ambit, and lack specificity. I propose to
consider the issue of relevance first.
[20] In Helen Suzman Foundation v Judicial Service Commission [2018] ZACC
8; 2018 (4) SA 1 (CC) para 26, relevance was considered in the context of rule
53 of the Uniform Rules, which provides for furnishing the record. The court
contrasted the process in that rule to that in rule 35, which provides for discovery
of documents. It pointed out that ‘. . . [u]nder rule 35 documents are discoverable
if relevant, and relevance is determined with reference to the pleadings’.  It
remarked that, ‘. . . under the rule 35 discovery process, asking for information
not relevant to the pleaded case would be a fishing expedition’.
[21] I see no reason why, in principle, this should not apply in the context of a
subpoena duces tecum, although a different threshold might apply. 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’
which suggests a higher bar than that envisaged in s 35(3).
[22] There are compelling reasons why a higher threshold would apply in
respect of subpoenas, including the fact that whereas the discovery process is
applicable only between the parties to the litigation, the process of subpoena
provided for in s 36(5) of the Superior Courts Act read with rule 38 of the
Uniform Rules of Court, third parties may be subpoenaed to attend court and
produce documents. Third parties ought not to be required to do so unless it is
absolutely necessary and there is some certainty that such documents are relevant
to the issues in the underlying action. Viewed in this light, a higher watermark
for relevance in respect of a subpoena duces tecum is not only necessary, but
appropriate.

[23] It is with that in mind that I consider the issue of relevance with reference
to the pleadings in the present matter. The particulars of claim are not a model of
the clarity and brevity envisaged by rule 18(4) of the Uniform Rules of Court,
which reads:
‘Every pleading shall contain a clear and concise statement of the material facts upon which
the pleader relies for his claim, defence or answer to any pleading, as the case may be, with
sufficient particularity to enable the opposite party to reply thereto.’
[24] The class action plaintiffs’ particulars of claim, contrary to the dictates of
this rule, contain a substantial body of what would constitute evidence at the trial,
and a lot of verbiage. The high court correctly described the particulars of claim
as containing ‘wide-ranging sets of facts and allegations’. It went on to consider
the effect of those as follows:
‘. . . [I]t seems clear that the trial will traverse those matters and that the documents contained
in the lists of documents are germane to Tiger’s preparation for the trial and the evidence which
will be led at it. All of those who received subpoenas are involved in the industry and are
persons who could and who probably did furnish information, opinion and factual data to the
NICD. The nature and extent of the information furnished, the nature and extent of information
not furnished and the accuracy of the information are relevant to test whether or not the
allegations made by the claimants are sustainable and necessary to run the trial. Hence, the
wide-ranging set of information sought in the subpoenas is relevant to the action.’
[25] It is important to consider rule 18(4) in a proper perspective.
The particularity required in that rule relates only to the material facts of the
party’s case. Thus, the pleader is only required to set out the material facts – with
due regard to the distinction that should be maintained between the facts which
must be proved in order to disclose the cause of action (facta probanda) and the
facts or evidence which prove the facta probanda (facta probantia). The latter
should not be pleaded at all, whereas the former must be pleaded together with
the necessary particularity.

[26] It is not necessary for a pleader to plead every piece of evidence which is
necessary to prove each fact. As was explained in McKenzie v Farmer’s
Cooperative Meat Industries Ltd 1922 AD 16 at 23, a cause of action is
constituted by ‘… every fact which it would be necessary for the plaintiff to
prove, if traversed, in order to support his right to judgment of the court. It does
not comprise every piece of evidence which is necessary to prove each fact, but
every fact which is necessary to be proved’.
[27] In the context of a class action, there is an added consideration: the
certification order sets the parameters within which the issues in the pleadings
should be considered. What this suggests is that even where facta probantia are
pleaded, as is the case here, a court is enjoined to distill the real issues between
the parties, within the confines of the certification order. This it can only do if it
ignores the unnecessarily pleaded pieces of evidence and focuses on the
facta probanda of the case before it.
[28] In the present matter, the class action plaintiffs assert three substantive
causes of action. The first is based upon strict liability in terms of the Consumer
Protection Act, which in s 61, provides for strict liability of producers, distributors
and retailers of unsafe, defective or hazardous goods. The plaintiffs allege that
Tiger Brands is a producer, distributor and retailer as contemplated in s 61; that
the products were contaminated as contemplated in s 1 of the
Consumer Protection Act; and that the members of the classes suffered loss of the
nature contemplated in s 61(5) of the Consumer Protection Act. The products in
question are alleged to have been produced, marketed and manufactured by Tiger
Brands between 23 October 2016 and 4 March 2018, at the Polokwane facility.
[29] The second cause of action is delictual. The plaintiffs allege that the
individuals who contracted L. mono did so as a result of consuming contaminated

food products originating from or having passed through the Polokwane facility;
that Tiger Brands could and should reasonably have known that its products were
inherently susceptible to contamination by listeriosis; that it was in control of
production, packaging and distribution of dangerous ready-to-eat meat products;
that Tiger Brands was aware or should reasonably have been aware of methods
to detect the presence of listeriosis in their products; and that it enjoyed a special
relationship with class action members as consumers of its products; hence had a
duty to take all reasonable measures to ensure that its products were safe.
[30] The third cause of action is a claim for constitutional (exemplary) damages,
it being alleged that Tiger Brands’ conduct violated the constitutional rights of
the class action members. The class action members alleged that this remedy was
justified because: Tiger Brands’ conduct was gross, and amounted to wilful or
reckless breach of the special ‘duty of care’ that they owed the class members,
and that common law remedies were inadequate.
[31] In its defence to the strict liability claim, Tiger Brands denied the allegation
that products from its Polokwane facility caused the alleged harm, as
contemplated by s 61(5) of the Consumer Protection Act. It relied upon the
qualifications in ss 61(1)(a), (b) and (c), to deny that the alleged harm was as a
consequence of: ‘supplying any unsafe goods’, ‘a product failure, defect or hazard
in any goods’, or ‘inadequate instructions or warnings provided to the consumer
pertaining to any hazard arising from or associated with the use of any goods’.
Tiger Brands furthermore, relied upon the exception to strict liability recognised
in s 61(4)(b)(ii), which deals with a person’s ‘compliance . . . with instructions
provided by the person who supplied the goods to that person’.
[32] The defence to the delictual claim is that the ‘production, packaging,
distribution and sale of the ready-to-eat meat products were in compliance with

the [relevant] rules and standards’, and in particular that ‘all reasonable steps
[were taken] to ensure that the ready-to-eat meat products at the Polokwane
facility were acceptable in accordance with [the prescribed standards]. With
regard to the claim for constitutional damages, Tiger Brands pleads that ‘[t]his is
not an appropriate case for the development of the common law to provide for an
award of exemplary or punitive or constitutional damages’.  It lists several
reasons why, in the circumstances, there is no basis to award such damages.
[33] Central to Tiger Brands’ case on relevance is its assertion that the class
action will focus on establishing whether Tiger Brands was the sole cause of the
listeriosis outbreak. It bases this on two paragraphs in the particulars of claim in
the class action. In paragraph 67, the class action plaintiffs alluded to a likelihood
of cross-contamination of some products that were not manufactured at the
Polokwane facility when they came into contact with the products contaminated
with L. mono from that facility. In paragraph 107 it is alleged that Tiger Brands
had failed to take reasonable steps to minimise the potential for cross
contamination.
[34] Tiger Brands’ submissions in this regard are as follows. Because the class
plaintiffs alleged that Tiger Brands was a source of the listeriosis outbreak
through its Polokwane facility, this necessitates an enquiry whether it was the sole
source of the outbreak. If it was the sole source of the outbreak, then it was
responsible for the harm suffered by all the victims of the outbreak. The
individual class members would merely have to prove that they were victims of
the outbreak to prove that Tiger Brands was responsible for the harm they
suffered. This is best encapsulated in Tiger Brands’ compelling application
against the laboratories:
‘[Tiger Brands is] now attempting under subpoena from the relevant laboratories (among
several other entities) to collate and examine a reasonably comprehensive body of
epidemiological evidence that was or may have been available to the NICD’s finding. That

evidence is at least potentially relevant to the outbreak investigation as a whole, of which the
test results (and related data) for listeria monocytogenes, including test results to determine the
presence (or absence), enumeration, lineage, or sequence type and the relatedness of the
sequence type of listeria monocytogenes are manifestly relevant and possibly even decisive in
one or more questions(s) in the class action.’
[35] To consider Tiger Brands’ submissions, the terms of the certification order
must be borne in mind. In terms thereof, the class action would proceed in two
stages. The first stage only concerns declaratory relief in respect of Tiger Brands’
liability to the four certified classes. During that stage, members of the classes
who do not wish to be bound by the outcome of the first stage are required to opt
out of the class action in a prescribed manner. The second stage applies only to
those classes in respect of which Tiger Brands’ liability would have been
established in the first stage.
[36] Therefore, the key question to be answered in the first stage is whether
Tiger Brands should be held liable to the classes for any provable damages arising
as a result of the consumption of contaminated food products that originated from,
or passed through, the Polokwane facility during the relevant time period.  So, if
any class was not successful in the first stage of the class action, then all members
of the unsuccessful class who did not opt out in accordance with the procedure
would be bound by the judgment given at the conclusion of the first stage.
[37] If any class was successful in the first stage, then the class action in respect
of all such successful classes would proceed to the second stage. During that
stage, individual class members would pursue their claims against Tiger Brands
by proving the causal link between their damages and the eating of contaminated
food products linked to the Polokwane facility. The proof of damages actually
suffered by each individual class member is thus to be established in the second
stage of the class action.

[38] The defining and common feature of the certification order in respect of all
the four classes is therefore, that the cause of harm must have been the
consumption of contaminated food products ‘originating from, having passed
through, [Tiger Brands’] meat processing facility at Polokwane…’. To show that
he or she is a member of any of the four classes as defined in the certification
order, an individual claimant will have to establish the causal link between a
listeriosis infection on the one hand, and the consumption of Tiger Brands’
contaminated food products from its Polokwane facility, on the other. If this link
cannot be proved, an individual claimant would have no case against Tiger
Brands, irrespective of what would have been established regarding Tiger
Brands’ liability to the class, in the first stage. In that event, the quantum of the
claimant’s damages would become irrelevant. In this way, the certification order
ensured that Tiger Brands’ liability is suitably limited.
[39] The focus of the class action is therefore only on those whose damages
result from consuming those products. It is therefore irrelevant for purposes of
the class action, whether other persons may have been harmed by the
consumption of products manufactured by anyone other than Tiger Brands
through its Polokwane facility.
[40] Once this is appreciated, and if one has regard to the essence of the class
action plaintiffs’ pleaded case and the terms of the certification order, it is clear
that the reference to possible cross-contamination in the particulars of claim, is
extraneous to the certified class action. It does not expand the ambit of the class
action against Tiger Brands, the parameters of which are clearly delineated in the
certification order. The classes of plaintiffs are those whose harm can be linked
to the ingestion of the contaminated food connected to the Polokwane facility.
Such persons do not have to allege or prove that Tiger Brands was the only source
of the listeriosis outbreak.

[41] Accordingly, Tiger Brands would not have to refute that allegation to
successfully defend the class action. It would only be required to refute the
allegation that any particular person, potentially falling within one of the four
categories of plaintiffs, was infected by the consumption of a contaminated
product produced or having passed through the Polokwane facility.
[42] I therefore conclude that Tiger Brands’ ‘sole source’ argument has no
relevance in the class action. Its demand for production of documents in this
regard is entirely speculative. It seems to hope that in the midst of all the test
results it requires, it would find a basis on which to pin co-liability on another
party. This is not the purpose of a subpoena duces tecum.
[43] Viewed in this light, the high court’s analysis of the pleadings was flawed,
given the class action plaintiffs’ pleaded case, and the parameters of the
certification order. It failed to distinguish between facta probanda necessary to
sustain the class action plaintiffs’ cause of action, and the ‘wide-ranging sets of
facts and opinions’, that ought to be considered in determining the factual and
legal relevance of the documents sought in the subpoenas. It erroneously elevated
the ‘sole cause issue’ to some cause of action which the class action plaintiffs
needed to establish. As I have endeavoured to point out, that issue, to the extent
it has been pleaded, has no bearing on any of the issues for determination in the
class action. For the purpose of determining relevance on the pleadings, those
allegations should have been ignored as mere surplusage.
[44] The high court also erred in its view that ‘… it seems reasonable that …
the entire industry was the subject of investigation’. According to the experts in
this matter, ‘listeria’ is a genus of bacteria of which there are 18 recognised
species, only two of which are human pathogens. Of those is L. Mono, which is
the only species that causes listeriosis. L. Mono may in turn be grouped into one

of various ‘strains’. The ST6 strain was determined by the NICD to be responsible
for the listeriosis outbreak. That is the only material about which there is
relevance in the class action. The other species contain bacteria which is common
in fresh vegetables, water, milk and the fruits on supermarket shelves, which is
harmless.
[45] While the NICD’s initial investigation was indeed broad, it was ultimately
narrowed to the ST6 strain, following the finding that DNA ‘fingerprints’ lifted
in clinical tests matched precisely those found at the Polokwane facility. This led
to a determination by the NICD on 4 March 2018 that the Polokwane facility was
the source of the outbreak. Shortly thereafter, Tiger Brands closed the facility and
recalled its processed meat products from the market. Towards the end of April
2018 Tiger Brands announced that it had received independent laboratory tests
which confirmed the presence of ST6 strain in samples of ready-to-eat meat
products from its Polokwane facility. This fact was subsequently admitted by
Tiger Brands in its plea. This means that further ‘extensive epidemiological
investigation’ envisaged by Tiger Brands is unnecessary.
[46] Below I briefly discuss the contents of the amended subpoenas against their
respective recipients.
[47] In respect of the laboratories, the amended subpoenas required each of
them to provide copies of documents, referred to as ‘all requests received from
any person or entity’; and ‘all data obtained and test results produced for detection
testing and for enumeration testing, for any L. mono for the period 1 July 2017 to
the date of the subpoena. In addition, the laboratories were required to provide
copies of ‘[a]ny and all reports, memoranda, notes, analyses or correspondence. .
. prepared or compiled in relation to any of the requests for testing’ referred to
above. Finally, the laboratories were required to produce:

‘Any and all correspondence, and other written communication (including emails, SMS texts
and memoranda) exchanged during the period 1 July 2016 to the present concerning the
2017/2018 Listeriosis Outbreak or Listeria during the period 1 July 2016 to the present, with
any person, entity or authority…’
[48] Evidently, Tiger Brands’ subpoenas against the laboratories call for
communication concerning listeria in general ie material relating to these
bacterial species falling under the broadly inclusive genus of listeria, almost all
of which are not known to cause any illness in humans. Therefore, the disclosure
of material relating to these species is irrelevant to the class action.
[49] I also discuss briefly the position of Famous Brands. Although no subpoena
was served upon it, Famous Brands is directly affected by the subpoenas served
on the laboratories. In its answering affidavit in the Tiger Brands’ application to
compel against the laboratories, Famous Brands sought to explain why its test
results (which are in possession of the laboratories) are irrelevant for the purposes
of the class action. It explained the steps it takes to ensure that the meat it serves
does not contain L. Mono, as follows: collectively, the restaurants in its stable,
which include Wimpy, Steers and Debonairs Pizza, sell two types of menu items
that may contain meat, menu items such as open sandwiches which contain
uncooked ready-to-eat meat products and menu items such as hamburgers
containing cooked meat.
[50] Those restaurants in the Famous Brands stable that serve meals containing
cooked ready-to eat products rely on external suppliers who manufacture such
products. The only test results that Famous Brands obtains from the laboratories
concerns samples of raw meat that is served in the restaurants in the
Famous Brands stable. Such meat is cooked at such high temperatures and for
such extended periods of time before being eaten by consumers, that any L. Mono

that might be present in the meat before the cooking is destroyed during the
cooking process.
[51] Accordingly, contends Famous Brands, the test results of raw meat cooked
before serving are wholly irrelevant for purposes of the class action. The meals
that contain cooked ready-to-meat products served in some of the restaurants in
its stable, are produced by an external supplier. Famous Brands and its related
companies do not submit samples of cooked ready-to-eat meat products for
testing by the laboratories. Also, Famous Brands averred that neither it nor any
of the restaurants in its stable buy or use any of Tiger Brands’ ready-to-eat meat
products.
[52] Tiger Brands did not dispute Famous Brands’ averments. Despite this, the
high court did not consider the undisputed evidence put up by Famous Brands. It
erred in this regard, as these averments are pertinent to the relevance of the
subpoenas issued against the laboratories, and by extension, to Famous Brands.
As already mentioned, the focus of the class action is the liability resulting from
the consumption of Tiger Brands’ ready-to-eat meat products that were
contaminated with L. mono, and produced in, or passed through, the
Polokwane facility. In the light of Famous Brands’ undisputed averments, any
information pertaining to it held by the laboratories would not be relevant to any
issue in the class action.
[53] In respect of Federated Meats appellants, the recipients of the amended
subpoenas were ordered to provide:
‘1.  All test results for the presence of Listeria monocytogenes including but not limited to
detection, testing, enumeration testing, or phenotypic testing on each environmental, food
and product sample or swab collected at each of your facilities during the period
1 January 2016 to 3 September 2018.

2.  All records of protocols applicable during the period 1 January 2016 to 3 September 2018
regarding any aspect of the control or testing methodology for the presence, enumeration
and/or sequence type of microbial hazards including Listeria monocytogenes involving but
not limited to your:
(i) Hazard Analysis and Critical Control Points (HACCP);
(ii) Method descriptions; and
(iii) Sample handling processes;
3.   All records of riboprinting, serotyping and whole genome sequencing undertaken by you
or on your behalf of Listeria monocytogenes samples (environmental or food) collected
from each of your facilities before, during and after the Listeriosis outbreak between 2016
and 2018; and
4.  Any correspondence or other written communication, notice, instruction or demand
concerning Listeriosis that was exchanged with, received from or sent to any person or
entity during the period 1 January 2016 to the present including but not limited to the
following entities:
(i)  The Department of Health (DoH);
(ii) The Environmental Health and Port Health Services of the DoH;
(iii) The National Institute for Communicable Diseases (NICD);
(iv) The Core Sequencing Unit of the NICD (CSU);
(v)   The Centre for Enteric Diseases of the NICD (CED);
(vi)  The National Health Laboratory Services (NHLS);
(vii)  The Department of Trade and Industry (DTI);
(viii) The Department of Agriculture, Forests and Fisheries (DAFF); and
(ix)  The World Health Organisation (WHO).’

[54] Before us, counsel for the Federated Meat appellants conceded that the
documents listed in paragraph 2 of the amended subpoena, referred to above,
could well be relevant to the issue of negligence, as the documents relate to
industry safety norms. Save for this, the Federated Meats appellants persisted in
their quest to set aside the amended subpoena served on it.

[55] Tiger Brands’ stance in this regard seems to be that the Federated Meats
appellants’ test results may be relevant by proving that it had received
contaminated meat from them. The difficulty for Tiger Brands is the common
cause fact that heating raw meat products to a temperature of 75 degrees Celsius
destroys any listeriosis risk. The Federated Meats appellants largely supply raw
meat products, which are not consumed without being cooked or heated. This
must be considered together with the fact that Tiger Brands specifically denies in
its plea that it failed to ensure that the meat was heated as described above. This
negates the hypotheses that L. Mono contamination of Tiger Brands’ products
was ‘passed through’ from infected meat products sourced from its suppliers,
including the Federated Meat appellants. The test results of these suppliers are
plainly irrelevant to the issues in the class action.
[56] All of the above considerations apply equally in respect of the amended
subpoena against the NICD. Only the following needs further mention in respect
of the NICD. The high court held that the documents sought by Tiger Brands are
germane to test, among other things, the rationality of the NICD’s determination
that the ST6 strain detected in processed meat products from the Polokwane
facility was the source of the outbreak. Tiger Brands has never sought to
challenge
NICD’s
determination.
What
is
more,
its
own
expert,
Professor den Bakker confirmed that the methods used by the NICD in the
investigation and reporting of the outbreak are consistent with the widely
accepted outbreak investigation methods. In the circumstances, the NICD’s report
should be accepted until reviewed and set aside by a competent court. It is
instructive that Tiger Brands has not sought to set it aside.
[57] In addition to the issue of relevance, the NICD also impugns the amended
subpoena on the ground that it lacks specificity envisaged in rule 38(1)(a)(iii).

That rule, in peremptory terms, requires a subpoena duces tecum to specify the
document or thing which a witness is required to produce. It reads:
‘If any witness is in possession or control of any deed, document, book, writing, tape recording
or electronic recording (hereinafter referred to as “document”) or thing which the party
requiring the attendance of such witness desires to be produced in evidence, the subpoena shall
specify such document or thing and require such witness to produce it to the court at the trial.’
The rule must be read together with s 36(4) of the Superior Courts Act, which
specifically provides that ‘[n]o person is bound to produce any document or thing
not specified or otherwise sufficiently described in the subpoena unless he or she
has it in court’.
[58] The amended subpoena on NHLS spans four pages with 24 paragraphs
demanding non-specific, generic information. It would serve no purpose to set
out all of the paragraphs. The first four and the last one would suffice. They read
as follows:
‘1. All data collected or test results for the period 1 July 2016 to the present for detection testing
of Listeria monocytogenes in samples taken or obtained from any of [Tiger Brands’]
manufacturing plants situated at:
. . .
1.2   28 21st Street, Industria, Polokwane;
1.3 553 Linton Jones Street, South Germiston, Germiston and
. . .
2. Any and all reports (including microbiological or epidemiological reports), memoranda,
notes, analyses or correspondence (including internal emails or other internal correspondence)
prepared, compiled or exchanged in relation to any of the data collected or test results referred
to in paragraph 1 above.
3.  All data collected or test results for the period 1 July 2016 to the present, for the enumeration
testing of Listeria monocytogenes detected in samples taken or obtained from any of the plants
referred to in paragraphs 1.1 and 1.3 above.
4.  Any and all reports (including microbiological or epidemiological reports), memoranda,
notes, analyses or correspondence (including internal emails or other internal correspondence)

… prepared, compiled or exchanged in relation to any of the data collected or test results
referred to in paragraph 3.
. . .
24.   All written or electronic records relating to any person (including deceased persons) who
suffered or were suspected to have suffered from Listeriosis during the period
1 September 2015 to the present including but not limited to records of any investigations
conducted, tests performed and correspondence (including internal correspondence)
exchanged.’
[59] Commenting on a similarly worded subpoena in Beinash v Wixley 1997 (3)
SA 721 (SCA), this Court said the following at 735C-F:
‘[T]he language used is of the widest possible amplitude, including within its sweep every
conceivable document of whatever kind, however remote or tenuous be its connection to any
of the issues which require determination in the main proceedings. The possible permutations
are multiplied with undisciplined abandon by a liberal and prolific recourse to the phrase
“and/or”. Its potential reach is arbitrarily expanded by the demand that the documentation must
be produced whether it be “directly or indirectly” of any relevance to a large category of
open-ended “matters”. Not the slightest basis is suggested to support the belief that any of these
documents exist at all or that, if they do, they can be of any assistance in the determination of
any relevant issue which might impact on the relief sought in the main proceedings. No attempt
is made to have regard to the specific requirement of Rule 38(1) of the Uniform Rules, which
expressly requires that a subpoena duces tecum shall “specify” the document or thing which
the witness concerned is required to produce. The demand in the impugned subpoena includes
the production of documentation which is said to arise from or “in relation to the conduct or
the activities” of the first and second defendant “in or about the affairs or winding up” of
conglomerates of companies. . . ’
In Re Excel Finance Corporation (Receiver and Manager Appointed); Worthley
v Australian Securities Commission [1993] FCA 108; (1993) 41 FCR 346; (1993)
113 ALR 543; (1993) 10 ACSR 255; (1993) 11 ACLC 330, a subpoena was
critisised on the basis that the breadth of its language ‘unreasonably requires the
persons to whom they are directed to form judgments about the documents that
are covered by the subpoenas’ (at para 49).

[60] I am of the view that the remarks expressed in both Beinash and Re Excel
Finance apply with equal force to the amended subpoena against the NICD. The
language used is overly vague and generalised, and in some respects, manifestly
uncertain. To borrow from Re Excel Finance, the language used leaves it up to
the NICD to make its own judgment as to what document should be produced and
whether or not they are relevant to a generic description of documents required
in relation to listeriosis. Tiger Brands has not sought to lay a basis as to (a) the
relevance of the documents to the issues in the class action, or (b) whether the
NICD has in its possession or control the requested documents.  I therefore
conclude that the amended subpoena against the NICD lacks the necessary
specificity.
[61] In sum, there is no merit in Tiger Brands’ assertion that there is a need to
obtain evidence to establish whether there are alternative sources of
contamination. As pointed out in Meyers v Marcus and Another 2004 (5) SA 315
(C) para 67, ‘the search for the truth … must, in the context of litigation and in
the interests of justice, be confined to evidence that is relevant to the issues in any
particular case’. Therefore, test results from a number of alternate sources in the
country are irrelevant to the issues in the class action.
[62] Section 36(5)(a) of the Superior Courts Act provides for the cancellation
of a subpoena if its recipient ‘. . . is unable to give any evidence or to produce any
book, paper or document which would be relevant to any issue in such
proceedings. In Sher and Others v Sadowitz 1970 (1) SA 193 (C) at 195D-E it
was held that ‘...  in the exercise of its general [inherent] power, [a court may] set
aside a subpoena where it is satisfied as a matter of certainty that the witness who
has been subpoenaed will be totally unable to be of any assistance to the Court in
the determination of the issues raised at the trial…’.

[63] In the present case, for all the reasons stated above, the third parties against
whom subpoenas were issued, will be unable to be of any assistance to the court
in the determination of the issues raised in the class action. Subject to the
concession in respect of the Federated Meats appeal, the appeals should succeed,
and the subpoenas in all the circumstances ought to be set aside. Costs should
follow the event in each instance. All parties employed more than one counsel,
which is warranted given the importance of the issues raised in the appeal.
[64] The following order is made:
In the Deltamune and Aspirata appeal
1    The appeal is upheld with costs, including the costs of two counsel.
2    The order of the high court is set aside and replaced with the following order:
‘1   Each of the applications by the first, second and third applicants against
the second respondent and the fourth respondent respectively, is dismissed.
2   The counter-application by the fourth respondent against the first, second
and third applicants to set aside the subpoena served on it on 13 May 2019
succeeds.
3 The subpoenas served on the second and fourth respondents on
13 May 2019 and 15 May 2019, respectively, are set aside.
4    The first, second and third applicants are ordered to pay the costs in respect
of the main application and the counter-application, including the costs of two
counsel where so employed.’
In the Federated Meats appeal
1 The appeal is upheld with costs, including the costs of two counsel, save to
the extent set out in paragraph 2 below.
2 The order of the high court is altered to read as follows:
‘1   The application succeeds save to the extent set out in paragraph 2 below.

2   The subpoenas served on each of the first to sixth applicants are set aside,
except the portion which requires the first to sixth applicants to furnish:
“(a) All records of protocols applicable during the period 1 January 2016 to
3 September 2018 regarding any aspect of the control or testing methodology
for the presence, enumeration and/or sequence type of microbial hazards
including Listeria monocytogenes involving but not limited to your:
(i) Hazard Analysis and Critical Control Points (HACCP);
(ii) Method descriptions; and
(iii) Sample handling processes”,
which documents shall be furnished within one month of the service of the
subpoenas on the first to sixth applicants.
3   The first, second and third respondents are ordered to pay the costs,
including the costs of two counsel.’
In the National Institute for Communicable Diseases appeal
The appeal is upheld with costs, including the costs of two counsel.
The order of the high court is set aside and replaced with the following
order:
‘1   The application succeeds.
2   The subpoena issued by the first, second and third respondents dated
23 May 2019 against the applicant is set aside.
3    The first, second and third respondents are ordered to pay the costs, including
the costs of two counsel.’

____________________
T Makgoka
Judge of Appeal

APPEARANCES:
For first, thirteenth and
fourteenth appellants:
A R G Mundell SC (with him S van Aswegen)
Instructed by:

VDMA Attorneys, Johannesburg
Symington De Kok, Bloemfontein

For second to tenth
appellants:

H Epstein SC (with him M Osborne)
Instructed by:

Fairbridges Wertheim Becker Attorneys, Johannesburg

Phatshoane Henny Attorneys, Bloemfontein.

For eleventh appellant:
D Berger SC (with him J Berger)
Instructed by:

RHK Attorneys, Johannesburg
Symington De Kok, Bloemfontein.

For twelfth appellant:
P G Seleka SC (with him F Karachi)

(Heads of Argument having been prepared by P G
Seleka SC, F Karachi and S Mabunda)

Instructed by:

Lawtons Africa Inc., Johannesburg
Symington De Kok, Bloemfontein.

For respondents:
W Trengove SC (with him M Kriegler SC; K Hofmeyr
SC; R Ismail)
Instructed by:

Clyde and Co. Attorneys, Johannesburg
McIntyre Van der Post Inc., Bloemfontein.
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY: JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM:
The Registrar, Supreme Court of Appeal

DATE:
4 February 2022

STATUS:
Immediate

Please note that the media summary is for the benefit of the media and does not form part of the
judgment of the Supreme Court of Appeal.

Deltamune (Pty) Ltd and Others v Tiger Brands Limited and Others (Case no 847/2020) [2022]
ZASCA 15 (4 February 2022).
Today, the Supreme Court of Appeal (the Court) upheld an appeal against an order of the Gauteng
Division of the High Court, Johannesburg (the high court), which had upheld the validity and
enforceability of subpoenas to produce documents issued by the respondents, Tiger Brands Limited and
its two operating subsidiaries, Enterprise Foods (Pty) Limited and Tiger Consumer Brands Limited
(collectively referred to as ‘Tiger Brands’). Tiger Brands faces a certified class action in the high court
as a result of the outbreak of listeriosis in South Africa between January 2017 and 3 September 2018.
A number of people across the country contracted an infection of the bacterium Listeria monocytogenes
(L. mono) as a result of consuming contaminated ready-to-eat meat products produced by Tiger Brands
at its Polokwane facility. The subpoenas were issued pursuant to the class action, and required the
recipients to produce swathes of documents, items and things, mainly in respect of test results conducted
for the L. mono.
The recipients of the subpoenas were the following: the first appellant, Deltamune (Pty) Ltd
(Deltamune); the fourth appellant, Federated Meats (Pty) Ltd and fifth to tenth appellants (the Federated
Meats appellants); the twelfth appellant, the National Health Laboratory Services (the NHLS), as well
as the fourteenth appellant, Aspirata (Pty) Ltd (Aspirata). The subpoenas were issued in terms of s 35(1)
of the Superior Courts Act 10 of 2013, read with rule 38 of the Uniform Rules of Court which regulates
the procedure for the procurement of evidence by subpoena. No subpoenas were issued against the
second appellant, the Red Meat Industry Forum (the Meat Forum), the third appellant, the Association
of Meat Importers and Exporters (the Meat Association) and eleventh appellant, Famous Brands
Management Company (Pty) Ltd (Famous Brands). Their involvement in the matter was purely to the
extent that their interests could be affected by the subpoenas. None of the appellants were party to the
class action.
The Court considered two issues in respect of the subpoenas, namely relevance and specificity. The
latter was only in respect of NICD. Central to Tiger Brands’ case on relevance was its assertion that the
class action would focus on establishing whether it was the sole cause of the listeriosis outbreak. Tiger

Brands’ submissions in this regard were as follows: because the class plaintiffs alleged that Tiger Brands
was a source of the listeriosis outbreak through its Polokwane facility, this necessitated an enquiry
whether it was the sole source of the outbreak. Tiger Brands contended that, if it was the sole source of
the outbreak, then it was responsible for the harm suffered by all the victims of the outbreak. The
individual class members would merely have to prove that they were victims of the outbreak to prove
that Tiger Brands was responsible for the harm they had suffered.
The Court considered the terms of the certification order, in terms of which the class action would
proceed in two stages. The first stage only concerned declaratory relief in respect of Tiger Brands’
liability to the four certified classes. The second stage applied only to those classes in respect of which
Tiger Brands’ liability would have been established in the first stage, namely, whether Tiger Brands
should be held liable to the classes for any provable damages arising as a result of the consumption of
contaminated food products that originated from, or passed through, the Polokwane facility during the
relevant time period. The Court concluded that the focus of the class action was only on those whose
damages resulted from consuming those products. It was therefore irrelevant for purposes of the class
action, whether other persons were harmed by the consumption of products manufactured by anyone
other than Tiger Brands through its Polokwane facility. Therefore, the Court concluded that Tiger
Brands’ ‘sole source’ argument had no relevance in the class action.
With regard to specificity, the Court considered that the language of the subpoenas was overbroad, and
concluded that the amended subpoena against the NICD lacks the necessary specificity.
Accordingly, the Court, per Makgoka JA (with Zondi, Mokgohloa, Gorven JJA and Meyer AJA
concurring), upheld the appeals with costs, including costs of two counsel where so employed.

--END--