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15 Mar 2018 11:13
The only way to litigate effectively would be to join cases together, keeping in mind that the vast majority of those affected are poor people who need access to justice.(Chester Makana)
A Cape Town granny, aged 73, will require costly special care for the rest of her life – all because she and her dog enjoyed snacking on polony.
On the other side of the country, a 26-year-old pregnant woman from KwaZulu-Natal, who satiated her craving for polony, went into early labour. Two days after she underwent an emergency Caesarean section, her infant ended up in the intensive care unit and died of listeriosis.
Attorney Richard Spoor sighs as he gives details of the cases that have landed on his desk, since it was announced that he would lead a class action against Tiger Brands, which had been linked to the listeriosis outbreak.
Health Minister Aaron Motsoaledi recently announced that the food-borne disease had been traced to an Enterprise Foods factory in Polokwane.
According to the National Institute for Communicable Diseases, 183 deaths have been linked to the bacterial infection to date.
A total of 967 cases had been reported since 2017 and 218 cases were in this year alone.
Since announcing the class action plans last week, the firm has already confirmed about 50 cases on its database which are to form part of the lawsuit.
Spoor said he and his team of lawyers were gearing up for a mammoth task which could take years to come to fruition.
“This is a precedent-setting case – its impact is likely to be overwhelmingly positive,” he told News24.
“It sends a message to corporations that [they should] start taking food safety really seriously. It’s going to change things.”
He is no stranger to class action. Spoor is representing more than 100 000 sick gold miners seeking compensation for contracting silicosis or TB from exposure to dust underground.
He hopes to sign a settlement agreement within the next six weeks. Negotiations have been ongoing since 2015.
Spoor is also leading a class action related to lung disease among coal mine workers, which is now in its second year.
He was approached by a reputable civil society organisation to take legal action on behalf of those affected, an overwhelming majority of whom are poor, Spoor said.
“This [outbreak] has left almost 200 people dead. And the truth is that these corporations are hardly ever held to account, not in this country. [Accountability] is what I have devoted my life to.”
The biggest challenge in launching this kind of suit is getting the claimants together, organising their documents, quantifying their claims, consulting, and obtaining as much detail as possible, he explained.
With the victims spread out across the country, doing this will take some time.
“But every day the case gets stronger and better. The logistics are quite daunting, but I am more concerned about how we can help the victims and do justice to them.
“The value of these claims is not particularly high. But I don’t like to talk about it in terms of money. The pain of these families… We have a duty to step in and make sure that these individuals are fairly compensated to what they are entitled to. And that is going to be a huge job.”
In the case of death, Spoor said typically, the loved ones could recover medical and funeral costs, which he describes as “trivial”.
“Our law doesn’t regard emotional stress and grief as something that can be compensated,” he explained.
There is scope in law for constitutional damages, flowing from the breach of one’s rights to life and health, which Spoor is exploring.
“I am in discussion with counsel to decide if we will make claims for constitutional damages. If a baby dies, there isn’t a lot of value attached by common law. But we can see if we can recover constitutional damages, even if it is a test case and there is no well-established precedent for this.”
Firms big enough to afford this type of action don’t tend to, Spoor said, because “corporates don’t act against corporates”.
“That leaves small firms like us to do the work.”
The attorney, who has been working on human rights-related cases since being admitted in 1985, will lead his team and work together with US-based food safety law firm Marler Clark.
“They litigated this type of issue more widely than any other firm in the world. They have great expertise and a pool of leading experts on food safety, epidemiologists and microbiologists. We hope to rely mainly on South African expertise, but they will be backed up and supported by the best.
“Marler Clark has software specifically designed to deal with this kind of data capturing and processing. Paperwork will include thousands of documents, emails, notes, correspondence, medical records… huge volumes of paper. We don’t have the class action tools they do.”
He describes Richard Spoor Incorporated as a “platteland law firm”, which tackles its bigger cases through partnerships.
“We don’t have the money and resources to run this kind of stuff – we depend on bigger, wealthier partners. And you can’t tackle a company like Tiger Brands unless you are very well resourced – you have to pay advocates, hospitals, experts, additional staff to work the case, travelling costs. It’s difficult.”
Getting the suit ready for trial may take two to three years of work as the preparation for class action is more complex than an individual case, he said.
“What is really in the best interest of all involved is a quick settlement. But that doesn’t usually happen. I hope it can be settled without a determination by the court.”
But first a High Court needs to approve the class action.
Spoor believed that the only way to litigate effectively would be to join cases together, keeping in mind that the vast majority of those affected are poor people who need access to justice.
“If [the class action is not approved], we have a different problem. Each case would have to be litigated individually. Who is going to spend a cow to win a sheep?
“Should Tiger Brands oppose the class action, they could get a short-term advantage through individual litigation. Each claimant would have to find lawyers to take their case, and most will tell you they don’t have the money, resources or skills. That would probably knock about 750 cases out of the way.”
It would prove near impossible to find an attorney to take on a giant like Tiger Brands for a claim of a few tens of thousands of rands, Spoor surmised.
“No lawyer will do it – it’s too expensive for something this big and complicated,” he said.
He hoped the company would not oppose a class action because “one big case makes more sense than 250 small cases” in terms of costs, reputational damage and the amount of time individual cases would demand. — News 24
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