Tiger Brands has ‘moral responsibility’ to address needs of listeriosis victims urgently — lawyers

11 Sep 2024

‘What’s relevant… is everyone has the right to sufficient food, but that means sufficient food that is safe, not food that is going to make you sick and kill you’ – Mark Heywood, health and social justice activist.

The legal team behind a class action lawsuit representing more than 1,000 people who suffered as a result of the 2017/18 listeriosis outbreak in South Africa have argued that food producer Tiger Brands has a moral responsibility to address the needs of the victims urgently.

This comes six years after the outbreak, which claimed an estimated 218 lives. The surge in listeriosis cases was traced back to an Enterprise Foods factory in Polokwane, Limpopo, that produced contaminated polony. Tiger Brands was the parent organisation for Enterprise Foods.

Thamsanqa Malusi, a senior attorney at public interest law firm Richard Spoor Incorporated (RSI) Attorneys, alleged that Tiger Brands had been using delaying tactics to draw out pretrial processes in the matter, saying: “If it takes six years to resolve a case, and you’re saying that you’re committed to resolving it speedily, I think logic would dictate that you’re not. It really should not take that long.”

Read more: Listeriosis tragedy ‘breakthrough’ evidence makes ‘overwhelming’ case Tiger Brands was responsible – lawyers

Malusi was speaking at a Daily Maverick webinar on “The human cost of an outbreak: A fight for justice for listeriosis victims” on Tuesday. He was joined by Mark Heywood, a health and social justice activist. Maverick Citizen journalist Lerato Mutsila hosted the event.

“A lot of us don’t really think about our food being contaminated when we go to the shops and we buy food, and it’s something that we shouldn’t have to think about. But in 2017 and 2018 that all changed when the listeriosis outbreak swept through South Africa… Six years on, the victims of the outbreak have not been compensated yet,” Mutsila said.

Tracing to Tiger Brands

A microbiological investigation conducted by the National Institute for Communicable Diseases traced the listeriosis outbreak to the factory in Polokwane in 2018, according to Malusi. This led to a recall of ready-to-eat processed meat products from the facility, which in turn resulted in a rapid decline in listeriosis cases.

The legal team behind the class action previously told Daily Maverick that they received two important pieces of evidence related to the outbreak from the National Health Laboratory Service (NHLS) this year. The first was confirmation that the strain that was predominantly responsible for the outbreak, the sequence type 6 (ST6) strain, was not found in any other facility or location apart from Tiger Brands’ Enterprise facility in Polokwane.

In January 2024, the National Institute for Communicable Diseases (NICD), an institute of the NHLS, also provided public access to DNA sequence data for 403 ST6 isolates (a culture of microorganisms isolated for study) from the listeriosis outbreak. These isolates were derived from samples collected from human patients, food products and the environment at the factory in Polokwane; sequenced by NICD; and analysed by a number of methods, including multilocus sequence typing (MLST) and core genome MLST.

Core genome MLST, which is a globally recognised method for precisely identifying individual bacterial strains, showed that about 382 of the 403 ST6 isolates had no more than four allelic differences, which meant they were closely related and shared a common origin, according to Malusi.

“To prove that Tiger Brands is at fault, we merely have to show that the product came from their factory. The law, specifically the Consumer Protection Act, allows us to… claim damages on behalf of our clients from Tiger Brands on what’s called strict liability, which is a no-fault based claim,” Malusi said.

He noted that NICD testing of listeriosis patients during the outbreak showed that more than 90% of them had the ST6 strain.

“Tiger Brands has accepted that it is responsible for some cases… It did its own investigation. It found that the outbreak strain came from its factory, so it has confirmed [it],” Malusi claimed.

“They said back in 2018 already that they are committed to resolving any case that can be linked to them… They also said in the court papers that they admit being responsible for some cases but not all cases. Well, if that’s the case, then why are you not resolving and settling the cases that you… admit being responsible for?”

Responding to a viewer question about why state health inspectors failed to identify the risks at Tiger Brands’ Enterprise Foods factory before the outbreak, Malusi said there may have been capacity constraints that affected oversight at facilities like the one in Polokwane.

However, he continued: “I don’t think we should ever exonerate companies like Tiger Brands from their responsibility – that is, to ensure that whatever food they produce into the market is safe for consumption. Because ultimately, they’re the ones that make profit from the consumers. They owe a special duty of care to the consumers to ensure that whatever food they produce is safe for consumption. The Consumer Protection Act, in fact, provides for that.”

Human impact of outbreak

While there were 218 deaths and close to 1,000 recorded infections during the outbreak, Heywood emphasised that these numbers may have been far higher, since not everyone who fell ill would have reported it or been accurately diagnosed.

“Many of those people who were infected that didn’t die suffered immensely, and continue to suffer immensely. The listeria bacteria is a very nasty bacteria. It kills about 30% of people who get infected. And it is particularly dangerous to people who have weakened immune systems, which means pregnant women, which means people living with HIV. And as we know, we have many people living with HIV in our country,” he said.

Heywood has been in contact with one family affected by the outbreak since 2018. Monthla Ngobeni’s daughter, Theto, has suffered long-term health impacts after being infected with listeriosis in utero. Theto was born with hydrocephalus, which has required brain surgery and the placement of a shunt in her head to drain excess fluid from her brain. The family has faced steep medical bills as a result of Theto’s condition.

“This is a really beautiful, lively, dynamic little girl whose life will be blighted forever by this. And there is absolutely no doubt… that there is no cause of this other than the fact that her mum, Monthla, ate polony that was produced at this factory in Polokwane by Enterprise and Tiger Brands,” Heywood said.

Read more: ‘They robbed my daughter of a future’ — how listeriosis shattered a mother’s dreams

The value of public interest litigation like the listeriosis class action is that it gathers evidence and puts it in the public domain, continued Heywood. Were it not for the actions of the legal team behind the case, he believes the matter would have been “brushed under the carpet” and victims would never have had the prospect of compensation for their suffering.

“Tiger Brands is one of the biggest food producers in this country. It’s listed as a top employer. It’s considered a famous South African company. It’s a member of organisations like Business Unity South Africa, which talk all the time about corporate accountability and transparency and good governance when it comes to government,” Heywood said.

“What we need is for… them to set an example that when they do something so profoundly wrong as this, they take responsibility for it, ensure compensation, mitigate and minimise the harm, and make a promise to us, the people of this country, that this will not happen again.”

Tiger Brands previously told Daily Maverick that it was committed to ensuring a resolution of the listeriosis class action in the shortest possible time, in the interest of all parties, particularly the victims.

“As part of the overall endeavours to expedite a resolution, Tiger Brands’ legal team and the plaintiffs’ attorneys jointly approached the National Institute of Communicable Diseases for access to their records relevant to the listeriosis outbreak. These records are vital to a determination of the class action,” it stated.

According to Tiger Brands, the NICD provided the records in February. They were shared with the attorneys representing the company’s insurers for review by their appointed experts. The review remains ongoing.

“Tiger Brands’ legal team and the attorneys representing the plaintiffs in the class action continue to attend to pretrial preparations to get the matter ready for trial, where liability will be determined by the Court,” said Tiger Brands. DM

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Tracing to Tiger Brands

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