Listeriosis class action given the greenlight

A class-action lawsuit against Tiger Brands in connection with the deadly listeriosis outbreak has been given the go-ahead.

On Monday, deputy judge president Phineas Mojapelo certified the Wendy Mnguni and others v Tiger Brands class action. The applicants in the matter approached the Johannesburg high court last Wednesday to ask for the certification.

Tiger Brands did not oppose.

READ MORE: Three major mistakes Tiger Brands made in response to the listeriosis crisis

The listeriosis outbreak — the largest in recorded history — killed 218 people after more than 1000 contracted the disease between 2016 and 2018.
The outbreak was caused by contaminated processed meat products manufactured and distributed from Tiger Brands’ Enterprise Factory in Polokwane.

The class action currently involves 150 adults and children affected by the outbreak.

The order covers individuals who contracted listeriosis, individuals who contracted the disease in utero, dependants of individuals who died of listeriosis and the relatives of people infected by listeriosis.

In a founding affidavit to the court, Richard Spoor, the lawyer for the complainants says: “Each applicant has suffered profound loss as a result of the epidemic. Some contracted and survived listeriosis. Others lost family members. Some applicants are parents, whose newborn babies contracted serious illnesses that will haunt them for life. Other applicants are parents whose babies were stillborn as a direct result of listeriosis.”

READ MORE: Listeria sleuths ‘called for’ backup

Spoor outlines the failures of Tiger Brands in mitigating these losses. He says food companies like Tiger Brands have a duty to avoid contamination. “The production of food in general, and ready-to-eat foods, in particular, involves immense public trust,” Spoor adds.

He points out that Tiger Brands makes substantial profits from products that are especially popular among poor people seeking inexpensive sources of protein.

According to the affidavit, Tiger Brands’ 2017 income statement shows that the company made over R31-billion in revenue in that year, with a gross profit of over R10-billion.

“Consumers understandably assume that the respondents’ [Tiger Brands’] products are safe for consumption. The respondents, however, failed to take the necessary steps to avoid the spread of listeria through their products,” Spoor says in the affidavit.

“The respondents’ failure to take these steps breached the public trust they cultivated over many years.”

Spoor adds that the distribution and consumption of potentially contaminated food items “continued unabated” until Health Minister Aaron Motsoaledi ordered the Polokwane plant to be shut down and a nationwide recall of the products.

According to the affidavit, one of the applicants, Montlha Welhemina Ngobeni, contracted listeriosis while she was pregnant. Her unborn child also contracted the disease. The child was born in December 2017 and developed severe meningitis which led to further neurological complications.

Presendrie Govender also contracted listeriosis while she was pregnant. She survived the infection, but her newborn child was declared brain dead and had to be taken off life support, the affidavit says.

The applicants are seeking damages for pain and suffering, past and future loss of income, and past and future hospital expenses.

Children born with complications arising from listeriosis are also seeking damages for disablement and lost potential earning.

READ MORE: Suffering litigants rejoice over mining houses’ R5-billion silicosis settlement

In 2001, Spoor brought a class action against 29 gold-mining companies in the Johannesburg high court, seeking damages for former mineworkers who contracted silicosis and tuberculosis after March 12 1965 as a result of their work.

In May, an out-of-court settlement was reached in the matter and the mining companies agreed to pay R5-billion to the litigants.

Sarah Smit

Sarah Smit

Sarah Smit both subs and writes for the Mail & Guardian. She joined the M&G after completing her master’s degree in English Literature from the University of Cape Town. She is interested in the literature of the contemporary black diaspora and its intersection with queer aesthetics of solidarity. Her recent work considers the connections between South African literary history and literature from the rest of the Continent. Read more from Sarah Smit

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