The Johannesburg high court, in a stern rebuke of state litigation tactics, has ordered the National Health Laboratory Service (NHLS) and the National Institute for Communicable Diseases (NICD) to pay punitive legal costs.Judge Stuart Wilson ruled on Wednesday that the NHLS and NICD must pay the costs of 16 class action applicants and Tiger Brands on an attorney and client scale, citing a failure by the state bodies to meet the constitutional standards expected of public institutions. On April 17, Wilson passed judgment directing the NHLS and NICD to release a range of defined confidential medical information to 16 people who are representatives of a class of individuals who claim they suffered compensable loss at the hands of Tiger Brands when they consumed food products contaminated with listeria. The high court certified their class action in 2018, but the action has not yet gone to trial. One of the steps the applicants say is necessary before the matter goes to trial is the disclosure of material relating to an investigation conducted by the NHLS and NICD, which traced the listeriosis outbreak back to a Tiger Brands food processing centre. The material is necessary because it is likely to be evidence in the action itself and will allow the applicants’ legal representatives to trace members of the class action who have not yet been identified. The class action representatives had placed an application for an order directing NHLS and NICD to disclose the information on Wilson’s unopposed roll for March 12 2026. However, on the evening of March 11, the NHLS and NICD filed a 44-page “explanatory affidavit”. Wilson said the purpose of the affidavit was far from clear, but its gist was that the relief the class action applicants sought was overbroad and inappropriate. Wilson said the manner in which the NHLS and NICD had placed their misgivings before him left a great deal to be desired. “Having formally abided my decision, they waited until just hours before the matter was to be heard before changing their position in a lengthy affidavit that they must have known I would have no real chance to absorb before the hearing.” The NHLS and NICD also did not send counsel to court to explain the affidavit. Wilson said this conduct had real consequences. “For the reasons I gave in my judgment of April 17 2026, I could not simply treat the application as unopposed. I was statutorily obliged to consider and come to grips with the tardy affidavit.” Wilson said the application could not be decided on the day for which it was set down, being but one of 59 cases on his roll that day, and further submissions were made necessary. Having considered the relevant material, I am convinced that an attorney and client costs order should be made.— Judge Stuart WilsonIn his judgment of April 17, Wilson directed that the NHLS and NICD should explain why they should not have to pay the costs of the application on the scale as between attorney and client. He gave the NHLS and NICD time to file the material necessary for him to consider that question and all parties submitted the material this month.“Having considered the relevant material, I am convinced that an attorney and client costs order should be made.” Wilson said what was required in, but absent from, the NHLS and NICD’s costs affidavit was a full explanation of why their affidavit in the main case was only filed at the last minute, why the NHLS and NICD changed their attitude towards the application in that affidavit, and why nobody was sent to court to explain the contents of the affidavit and the change of stance. Wilson said the NHLS and NICD, through their counsel, emphasised they did not conduct themselves in bad faith and did not intend to cause the additional costs, inconvenience and confusion that they did. “I accept all of that, but I point out that far more was expected of the NHLS/NICD than the absence of bad faith.” He said as organs of state, they were under a constitutional obligation to assist and protect the courts and ensure their effectiveness. An affidavit of the length filed must have been days or weeks in preparation, he said. Neither the judge nor the applicants, nor Tiger Brands were given any indication that it was coming, much less that it would be filed late in the evening before the hearing. The failure to warn the parties or the court that the affidavit was on its way was neither fair nor transparent. “Accordingly, it seems to me that good-natured ineptitude is insufficient to escape a costs order in this case.”