Owners of Tiger Brands plan to fight a class action lawsuit relating to the company’s part in the 2017-2018 Listeria outbreak in South Africa.

The lawsuit is being brought against the company by Richard Spoor Attorneys and LHL Attorneys. The Seattle firm of Marler Clark LLP is serving as a consultant for the case attorneys.

The listeriosis outbreak began at the start of 2017 and was declared over in September 2018 with 1,065 confirmed cases and 218 deaths. World Health Organization experts said it was the world’s largest documented listeriosis outbreak ever.

It was traced in March 2018 to a ready-to-eat processed meat product called polony made at a plant in Polokwane run by Enterprise Foods, which is owned by Tiger Brands.

The legal action is on behalf of those who were sickened by polony contaminated with Listeria and families who lost relatives. The Gauteng High Court in Johannesburg granted an order this past December permitting a class action lawsuit to be brought, known as certification.

Liability first stage
“The company intends to defend the class action and . . . is preparing to follow due legal process,” according to a Tiger Brands statement to the stock exchange.

Tiger Brands received a summons relating to the class action lawsuit this week.

No amount of damages is being claimed as the first stage deals with liability. Damages would be handled at a second stage if the court finds the firm liable, according to the statement.

Tiger Brands said the plaintiffs are seeking damages in terms of the Consumer Protection Act; claims in delict (when one party commits a wrong against another); and for exemplary or punitive or constitutional damages.

The company said it had been advised that the law in South Africa does not recognize a claim for exemplary or punitive damages, or constitutional damages of this nature.

Tiger Brands confirmed it has product liability insurance coverage. However, the policy does not cover exemplary or punitive damages.

Before the outbreak, there had been between 60 and 80 listeriosis cases every year in South Africa for the past five years before the outbreak. The country also made listeriosis a notifiable condition for the first time to help track infections.

An expected decision
Thami Malusi, from Richard Spoor Inc. attorneys, told Food Safety News that the move to fight the class action lawsuit was expected despite some thinking Tiger Brands would not oppose it as that is what happened at the certification stage.

“It is also in their interest to have the class action certified because that means instead of facing multiple lawsuits from all the people that contracted listeriosis they would have one unified lawsuit. At the certification stage, they said they will make a case in the defense of their liability if we did bring a case on liability. I think a lot of people in the public space think it was not expected for them to oppose just because they did not oppose at certification.”

Next, a stage called the discovery process begins, this means Richard Spoor will sequester documents from Tiger Brands specifically around testing done in the plant to get a sense of what they did to try and prevent the outbreak. Depending on this process, the anticipated date for a court hearing is the end of this year.

Malusi said the country’s laws do not allow for punitive exemplary damages but progress is being made in that direction.

“Our law is very discriminatory against what you would call the vulnerable members of our society —the elderly, children and the poor — this is because in our law of damages if, for instance, you get injured from someone else’s negligence or willful conduct you will not get much unless you were rich. If you were rich, it means if you get seriously injured and you can’t function as you used to you would have lost a lot of earnings but if you were poor that is not the case,” he said.

“The best way to address that is to allow for punitive or exemplary damages wher we say regardless of your economic status if someone strongly violates your rights or causes you damage, you cannot be limited in terms of what you can get by your economic status, we should be able to compensate you by virtue of being a person and having been violated.

“The move toward exemplary damages has not been properly tested in our courts of law and we think this is a good case to do that. If you look at the type of people affected by listeriosis it was generally the young or old people and polony is consumed by poor people in this country.”