A customer seen walking past products in 2018 that were removed as they were possibly linked to the listeriosis outbreak. Picture: Cindy Waxa/Independent Newspapers Archives
While an agreement has been reached between Tiger Brands and Richard Spoor Inc and LHL Attorneys for advance payments to be made to the first of a number of persons who are seeking interim assistance to address urgent medical needs over the 2018 listeriosis outbreak, the class action continues.
On Monday, it was announced that Tiger Brands and the plaintiffs’ attorneys had agreed on relief for qualifying individuals who have urgent medical needs, regardless of the fact that liability has not yet been determined.
The listeriosis outbreak claimed more than 200 lives and infected more than 1,000 people in 2018.
Listeriosis is a foodborne disease caused by listeria bacteria. It can lead to serious illness in high-risk groups, including the elderly, infants and pregnant women. Pregnant women can transmit the infection to their unborn babies, potentially leading to lifelong health problems with the brain, kidneys or heart.
In March 2018, South African health officials linked the outbreak to ready-to-eat meats, mainly polony, produced at an Enterprise Foods facility then owned by Tiger Brands, the country’s biggest food producer.
Tiger Brands has agreed to make advance payments to people seeking “urgent” medical attention related to the outbreak.
Founding Director of Richard Spoor Inc, Richard Spoor, said that this was an important inroad and a first step in the parties’ efforts towards justice for the victims of the listeriosis outbreak.
“The interim advance payments will go some way towards relieving the acute needs of the recipients.”
Tiger Brands CEO, Tjaart Kruger, said that the legal process has proved long and arduous.
“Even though liability has not yet been determined and Tiger Brands has no legal obligation to provide interim relief at this stage in the class action, the interim advance payment to a number of claimants with urgent needs recognises the debilitating circumstances in which they find themselves.”
The parties are engaged in discussions to extend the relief to other qualifying claimants who are in a similar position. The parties announced that, in order to protect the privacy of the individuals, no details of the payments will be made public.
Candidate Attorney at Richard Spoor Inc., Amy Tuchten, provided insights into the rationale of not allowing access to the plaintiffs to speak to the media and public at this point saying they would like to protect the privacy and dignity of the plaintiffs, especially of those receiving an advance, “as it is a confidential and ongoing process of negotiation”.
Tuchten said that to date, they have onboarded approximately 1086 persons as class members, and that litigation of this scale is unprecedented in South Africa.
The class action, which is being managed in two stages, is still at the first stage during which liability is to be determined by the Court. Only if Tiger Brands is found to be liable will the issue of causation arise, in the second stage of the class action, as well as an assessment of compensation payable to qualifying claimants for damages suffered.
“While many class actions have been certified by the courts, which is the first stage of class action litigation, no class action has then made it to trial. Novel legal thinking is thus required.”
She explained that it has been just over six years since the class action was certified by the High Court in December 2018.
“One delay in this case was the subpoenas issued by Tiger Brands in early 2019 where they sought further documents from meat producers and laboratories around the country mainly relating to test results they conducted for listeriosis.
“This case went to the High Court, where they were successful, but in the Supreme Court of Appeal, that decision was overturned. Tiger Brands was told that it is not reasonable for them to expect every lab to produce their lab results and every meat processing company to give them their results during the outbreak period, especially because our case is based on our clients consuming Tiger Brands products,” Tuchten said.
“In 2024, we received two very important pieces of evidence from the National Health Laboratory Service (NHLS), one being confirmation from them that the ST6 strain of listeriosis, that was predominantly responsible for the outbreak, was not found in any other facility or location apart from Tiger Brands Enterprise facility in Polokwane.
“Second, the NHLS provided raw sequence data for around 300 persons, which can be genetically matched to the raw sequence data of Tiger Brands products and samples taken from its facility. This evidence is vital to determining Tiger Brands’ liability to our class members before the courts.”
Tuchten explained that while this year marks the seventh anniversary of the end of the outbreak, for many of their clients, the effects of listeriosis are not over.
“A lot of the children who contracted listeriosis are now of school-going age and the impact of listeriosis is now manifesting very clearly. We're seeing very severe consequences for these children who need immediate assistance.
“Early intervention for children with special needs is vital to improve the quality of their lives in the long term and they are unable to get the assistance they require,” she said.
“Many children who contracted listeriosis during the outbreak are to this day unable to walk, unable to sit up unassisted, or eat solid foods – there are adults who, once entirely healthy, are in similar positions. So the complications of listeriosis are very much still present for many of our clients.
“Many families also lost loved ones and breadwinners, a grief that continues to grow the longer a just resolution to the matter is not achieved.”
Director of the Justice and Peace Commission of the Southern African Catholic Bishops’ Conference Father Stan Muyebe shared in 2023 that as a priest, he had an opportunity to meet some of the victims of the listeriosis outbreak and experience their pain and suffering.
“They are not just numbers - they are real people suffering real-life consequences. For example, children who were born with listeriosis have chronic neurological disorders and need ongoing medical care. One of the class representatives in the litigation is Baby T, who contracted the infection while in her mother's womb in 2017.
“Baby T suffers from a condition that causes swelling around the brain. Baby T's treatment is coming at a great cost to her family. While the protracted legal battle seems to make sense from a legal point of view, when seen from an ethical point of view, I find it morally unacceptable that the victims of the listeriosis outbreak have been made to wait…”
Co-Director at the DSI-NRF Centre of Excellence in Food Security, Professor Lise Korsten explained that some of the health issues from listeriosis are connected to classic food poisoning.
“In the case of listeria, you know, there's these few main parts of this picture. The one that to me is very important and that is what we refer to as you get the more invasive, or the non-invasive.
The non-invasive one is less severe and the invasive one is severe, and that's when you get gastrointestinal listeriosis. The more severe form, which occurs with the listeria, is about spreading beyond the intestine. It goes beyond just diarrhoea, cramps, and nausea, and then, obviously, you get the vomiting.
“But listeria in the first place is extremely important, specifically with the more vulnerable. So, we're talking about pregnant women, babies, and the elderly. Because of the immune systems, these people will be the higher risk people. They will be more sensitive, and it will have a more severe effect on them.
“It can lead to meningitis, sepsis, blood poisoning or infection of the brain. It goes beyond just the normal fever, nausea, and diarrhoea. And what is important to note about these, is that it's not only critical, but it can lead to death.”
Korsten explained that since the outbreak, the Department of Health has been very active and busy, and also the South African Bureau of Standards (SABS).
“I'm a technical expert involved with SABS, and they have been working on improving and revising the standards. The SABS Standards Division has a regular schedule of reviewing standards. We, in general, globally do review standards, usually, about every five years, and there was several meetings.
“They do invite all the experts and government people so from SABS' point of view there has been activity. From the Department of Health, there has been activity, and they have also established a non-communicable diseases working group,” Korsten said.
Korsten mentioned that some of the key changes ushered in from the outbreak is with the Compulsory Specifications for Processed Meat Products.
“This processed meat document has been in the development phase for a long time, so within the focus from health was to really get this through the system, and get those changes and improvements approved.”
Korsten added that they also introduced amendments to the regulations relating to food safety and hygiene, including hygiene requirements specifically for premises and transportation.
“The fact that there has been amendments, is important because these specific regulations are really about how we improve the food safety standards. Food safety standards are always about continual improvements, and also about ensuring effective hygiene practices.”
Korsten added that while a lot has happened, there has not been enough, as the recent spaza shops issues are further examples of that.
“You can have all the rules and regulations in the world, but it is about how do they adopt them, implement them, and if there is continual improvement.”
theolin.tembo@inl.co.za