JSE-listed food products company Tiger Brands has been summoned to appear in court to face a class action lawsuit relating to the listeriosis outbreak that stemmed from its food processing plant in Polokwane in December 2017.
The Gauteng High Court granted an order last December permitting a class action lawsuit to be brought against Tiger Brands by Richard Spoor Attorneys and LHL Attorneys, joint legal representatives of the class, with Marler Clark LLP, a prominent foodborne illness lawyer in the US, as a consultant to the attorneys.
The class action is brought on behalf of those sickened by Listeria-tainted polony and the families of those who lost loved ones.
In early 2018 Tiger Brands was forced to shut down a number of its factories and issue a massive recall of cold meat products due to a deadly listeriosis outbreak early in 2018. This follows confirmation from the Minister of Health, Aaron Motsoaledi, that the source of the outbreak was the Enterprise food production facility in Polokwane.
By July 2018, 1 060 laboratory-confirmed listeriosis cases had been reported to the National Institute for Communicable Diseases. Of these, 749 cases were reported in 2017, and 311 cases in 2018. The final outcome is only known for 806 of the cases, however, of these 216 people died.
At this stage the quantum of damages claimed is unspecified as the first stage of the class action is concerned with liability. Only after liability has been ascertained will the quantum of damages be dealt with, and only if the court finds that the company is liable.
The claims for damages will comprise three parts: claims in terms of the Consumer Protection Act, claims in delict (when one party commits a wrong against another); and claims for exemplary or punitive or Constitutional damages.
At this point, the law in South Africa does not currently recognise a claim for exemplary or punitive damages, or Constitutional damages of an exemplary or punitive nature – according to Tiger Brands’ legal team.
The company has product liability insurance cover appropriate for a group of its scale. However this policy does not include cover for exemplary or punitive damages, should such an award be made by the Court. Nor does the policy cover Constitutional damages.
Tiger intends to defend the class action.