Big guns jet in for massive class action suit
Publish date: 12 March 2018
Issue Number: 765
Diary: IBA Legalbrief Africa
South African and American lawyers are teaming up to launch what is expected to be a major class action suit against Tiger Brands. This follows the biggest listeriosis outbreak on the planet which has so far claimed at least 183 lives. The disease is caused by bacteria which can contaminate fresh food, notably meat. Legalbrief reports tha the World Health Organisation has confirmed that victims of the outbreak will be invited to sue the owner of the factory identified as the source. Attorney Richard Spoor confirmed that his firm would file a class action suit against Tiger Brands whose facility was last weekend officially revealed to be the origin of the listeria epidemic. A report on the News24 site notes that he predicted that, if the litigation is successful, damages of tens of millions of dollars could be awarded to victims and the families of those killed. Tiger Brands chief executive Lawrence MacDougall told local media on Friday that ‘we'll have to deal with (litigation) when we get to it, right now our focus is on food safety’. MacDougall has previously claimed that ‘there is no direct link with the deaths to our products’. A report on the Infosurhoy site notes that Botswana, Kenya, Namibia, Malawi, Mozambique, Zambia and Zimbabwe have recalled or banned imports of processed meat products from South Africa after the outbreak.A report on the eNCA site notes that Zimbabwe Health Ministry’s Gerald Gwinji said the country has tightened its food surveillance at the borders. 'We are still to establish the exact batches that are involved. We have alerted our border posts to look out for such products,' he said.
According to a report in The Mercury, Spoor confirmed his firm has partnered with US firm Marler Clark and will be engaging the services of other experts in the field as it prepares to bring class action proceedings. On its website, Marler Clark said its lawyers have ‘unmatched experience’ in representing victims with listeriosis. Spoor noted that while ‘theoretically’ supermarkets that sold these products could also be part of the claim, it was not good to ‘create any unnecessary complexities’ in the matter. Spoor, who has spearheaded legal action against gold producers over the fatal lung disease silicosis, reportedly told Weekend Argus: ‘I expect to launch it in two to three weeks.’ There was more bad news for Tiger Brands in a TimesLIVE report, which notes forensic investigator Paul O’Sullivan plans to lay murder and attempted murder charges against the company. ‘It is high time that corporations were held to account for their actions‚ more so when their negligence has resulted in deaths that could have been avoided‚ had the organisation heeded the warnings‚’ O’Sullivan is quoted as saying.
At least one prominent lawyer is sceptical about the developments. Llewellyn Curlewis is quoted by Rapport as saying it is far too early to talk about a class action, especially as there is not yet clear proof that Tiger Brands’ products led to the death of the patients. ‘It will be difficult to prove a direct link between the products and the deaths or illnesses,’ Curlewis said. He added that Tiger Brands was already moving in the direction of a defence based on the lack of causality. MacDougall reportedly told the newspaper his company had not been provided with any evidence that any of its products were contaminated. The ST6 strain of the listeria bacteria was found in the environment at the Polokwane facility and not in the products itself, he said. The company is also disputing whether the ‘low’ levels of bacteria found could have caused infection.
Inadequate legislation has made South Africans vulnerable to deadly foodborne diseases, and the government has failed to ensure the country has enough environmental health practitioners. ‘The situation is drastic. We do not even meet the minimum requirements when it comes to enough environmental health practitioners to ensure our citizens are safe,’ said Dr Selva Mudaly, president of the Institute of Environmental Health, an NGO, in another Sunday Times report. These practitioners include the inspectors who check food facilities, ranging from production plants to restaurants, to ensure food is safe for human consumption. One health practitioner in the Fezile Dabi municipal district in the northern Free State said the district, with a population of more than 500 000, had only nine health practitioners, whereas it should have 50. Food safety experts say legislation is so broad that it requires no more than that food be declared safe.