Richard Spoor Attorneys this week launched an application in the Johannesburg High Court to have its case against Tiger Brands involving the outbreak of listeriosis certified as a class action.
The National Institute for Communicable Diseases this week announced that the death toll due to the food-borne disease had risen to 189.
Government identified the Enterprise Foods factory in Polokwane, which is owned by Tiger Brands, as the source of the outbreak.
The 501-page court document lists 10 applicants in the matter – Montlha Ngobeni, Clinton Chinula, Mamoraka Ntjana, George Coetzee, Presendrie Govender, Annelize le Roux, Xolile Bosch, Rajesh Misra, Sebastian Stephen, Schwagele-Fana Moriz and Shereze Curtis.
Tiger Brands this week said it and Enterprise Foods had been served with an application issued by Richard Spoor Attorneys for an order declaring the constitution of four classes of claimants who would seek compensation.
“It is not possible at this early stage to calculate the damages to which the claimants would be entitled if the liability of [Tiger Brands] and Enterprise Foods is established,” the group said.
Tiger Brands CEO Lawrence MacDougall said: “I am deeply sorry and offer our sincere condolences to those people who have been affected by the listeriosis outbreak in South Africa. One cannot put a price on life.”
In its statement, Tiger Brands did not indicate whether it would oppose the class action application.
The applicants are from different areas across the country, including Gauteng, the Northern Cape, Limpopo, KwaZulu-Natal and the Free State.
The court papers list four different classes of people who were affected by the listeriosis outbreak between October 23 2016 and March 4.
The first class is listed as individuals who contracted Listeria but did not die as a result of eating meat produced by Enterprise Foods.
The second class is babies who contracted Listeria in utero but did not die as a result of their mothers eating Enterprise Foods products.
The third class is listed as individuals who were dependant on those who died after eating Enterprise Foods products.
The fourth class is listed as individuals who “are and/or were liable for the maintenance of, or were in fact maintaining, other individuals or who contracted an invasive infection of listeria as a result of eating Enterprise Foods products”, whether they died as a consequence of the infection or not.
This fourth class includes individuals whose mothers contracted listeria while pregnant as a result of eating Enterprise Foods products – whether they died of the infection or not.
“The applicants are among the many victims of the epidemic. Each applicant has suffered profound loss as a result of the epidemic. Some contracted and survived listeriosis. Others lost family members. Some applicants are parents whose newborn babies contracted serious illnesses that will haunt them for life. Other applicants are parents whose babies were stillborn as a direct result of listeriosis,” the court papers said.
Richard Spoor Attorneys said: “Those who profit from the preparation and distribution of food products have a duty to take reasonable measures to avoid their foodstuffs being contaminated with pathogens. The production of food in general, and ready-to-eat foods in particular, involves immense public trust. At the heart of this case is the respondents’ breach of this trust and the consequences of the breach.
“The respondents prepared and distributed ready-to-eat processed meat products that were contaminated with listeria. In fact, the respondents’ facility in Polokwane was identified by the National Institute for Communicable Diseases as the source of the epidemic.
“The applicants approach this court for certification of a class action to claim damages from the respondents. The applicants further propose to pursue the class action in two stages.
“In stage one, the applicants will seek a declaratory order establishing the nature and extent of the respondents’ liability to the classes.
“In stage two, the class members will claim damages on an individual basis to the extent that they can demonstrate that.”
The court documents list a number of local and international experts that Richard Spoor Attorneys has consulted and included as part of its legal action.
The applicants’ primary claim is based upon section 61 of the Consumer Protection Act.
“In the alternative, the applicants rely on the wrongful negligent breach of the respondents legal duty, to the public, not to cause contaminated foods to be made available for consumption,” Richard Spoor Attorneys.
“As the outbreak grew into an epidemic, the respondents’ duties were heightened. When it became apparent that there was an outbreak of listeriosis, the respondents should have continuously tested their products and production facilities to determine whether they had a role to play. This is only logical as their products [prepared meats] are prone to Listeria. Evidently, they did not do so. The respondents remained supine in the face of a deadly national health crisis ... The respondents chose instead to wait for national health authorities to take meaningful action.
“The respondents’ liability is primarily from strict liability for the consequence of defects in their products. There is, at the very least, a prima facie case to be made in these circumstances.”
Damages are to be calculated during the second phase, which will proceed if there is a declaratory judgment of liability in the first phase, Richard Spoor Attorneys said.