Listeriosis survivors in a class action against Tiger Brands will be heartened by a Supreme Court of Appeal (SCA) ruling on Friday that overturned a Gauteng High Court decision to force other companies to hand over epidemiological and other information relating to the listeriosis outbreak. Photo: File
LISTERIOSIS survivors in a class action against Tiger Brands will be heartened by a Supreme Court of Appeal (SCA) ruling on Friday that overturned a Gauteng High Court decision to force other companies to hand over epidemiological and other information relating to the listeriosis outbreak.
“Tiger Brands has not sought to lay a basis as to (a) the relevance of the documents to the issues in the class action or (b) whether the NICD (National Institute for Communicable Diseases) has in its possession or control the requested documents. I therefore conclude the amended subpoena against the NICD lacks the necessary specificity.
“In sum, there is no merit in Tiger Brands's assertion that there is a need to obtain evidence to establish whether there are alternative sources of contamination,” the SCA said in its concluding remarks of the judgment.
Tiger Brands had sought to subpoena other major meat-processing facilities in the country and laboratories in what appeared to be a bid to argue that it needed the documents to help prove that it was not the only company responsible for the outbreak.
The listeriosis outbreak occurred in South Africa between 2017 and 2018 during which at least 218 people died, with at least 1 065 confirmed cases.
According to media reports, many others suffered from complications from the disease, including unborn children. The NCID in 2018 released a report that found that the disease had emanated from a Tiger Brands cold meat processing factory in Polokwane.
A class action was filed against Tiger Brands by a consortium of lawyers on behalf of victims of the outbreak, including Richard Spoor Attorneys, early in 2019. The quantum of damages is being dealt with in the case of a second stage of the class action, the first phase being if the court finds Tiger Brands liable.
Tiger Brands said in response to the SCA judgment on Friday that this “paves the way for the next step in the legal process”, and that the group “reiterates its commitment to ensure that a resolution of the matter is reached in the shortest possible time, in the interest of all parties, particularly the victims of listeriosis”.
Richard Spoor, a public interest lawyer representing 18 class-action claimants, said on Twitter on Friday: “Today the SCA knocked Tiger's efforts to delay the case out of the water. It held that the evidence they sought would not provide a defence to the claims against the company, because the claimants seek only to hold Tiger liable for the harm that they did, not anyone else.”
The SCA said in its judgment: “Tiger Brands has never sought to challenge the NICD's determination. What is more, its own expert, Professor den Bakker confirmed that the methods used by the NICD in the investigation and reporting of the outbreak are consistent with the widely accepted outbreak investigation methods. In the circumstances, the NICD's report should be accepted until reviewed, and set aside by a competent court. It is instructive that Tiger Brands has not sought to set it aside.”
The SCA found that in relation to Tiger's subpoenas for more documentary evidence from other laboratories that: “Evidently, Tiger Brands' subpoenas against the laboratories call for communication concerning listeria in general, i.e. material relating to these bacterial species falling under the broadly inclusive genus of listeria, almost all of which are not known to cause any illness in humans. Therefore, the disclosure of material relating to these species is irrelevant to the class action.”
Tiger Brands reported a 4 percent increase in revenues to R31 billion in the year to September 30 last year. Its share price was down 0.05 percent to R180.18 on Friday after steadily falling from R267.37 three years ago.
edward.west@inl.co.za and philippa.larkin@inl.co.za
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