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Three years after listeriosis outbreak traced to Tiger Brands, victims remain without compensation

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Thamsanqa Malusi is a 2019/20 UCLA-Sonke Health and Human Rights Fellow with an LLM from the University of California, Los Angeles. He completed his LLB at the University of Cape Town in 2014. Prior to enrolling at UCLA, he worked as an associate at public interest law firm Richard Spoor Inc in Johannesburg. He is currently with Marler Clark LLP, a Seattle-based law firm that specialises in food-borne outbreak litigation and class litigation.

Since the filing of the listeriosis class action on behalf of the victims, Tiger Brands’ lawyers and insurers have exploited every legal technicality available and flexed their economic muscle to frustrate the speedy resolution of the claims.

Thursday, 4 March 2021, marked exactly three years since the then health minister, Aaron Motsoaledi, held a press briefing to report on the National Institute for Communicable Diseases’ (NICD’s) investigation into the source of the 2016 to 2018 listeriosis outbreak in South Africa – the world’s largest and deadliest. Through contact tracing, whole-genome sequencing and other scientific techniques, the NICD concluded that Tiger Brands’ Polokwane meat processing facility was the source of the outbreak.

The breakthrough in the NICD investigation came on 27 January 2018 when nine children from a Soweto crèche were admitted to Chris Hani Baragwanath Hospital with gastrointestinal-related illness after consuming Tiger Brands polony, which was produced at its Polokwane facility. The children and samples from the polony they had eaten tested positive for the ST6 genetic variant of listeria – the variant found in more than 93% of case patients who had tested for listeriosis.

Following an inspection at the Polokwane facility on 2 February 2018 by several officials, including technical advisers from the World Health Organisation, environmental and product samples collected at the facility – especially polony – tested positive for the ST6 variant. The NICD did not find this variant in any other processing facility.

There were 1,065 confirmed cases of listeriosis by the end of the outbreak in September 2018, and 218 recorded deaths. More alarming, the NICD data revealed that the outbreak disproportionately affected the most vulnerable members of society – immune-compromised individuals, the elderly, pregnant women and newborns. For example, the NICD reported that 406 outbreak illnesses occurred in newborns alone.

On 29 March 2019, a class action was filed by a consortium of lawyers on behalf of victims of the outbreak, including Richard Spoor Inc Attorneys, LHL Attorneys and US-based Marler Clark LLP.

On 26 April 2018, Tiger Brands issued a press statement saying it had received independent laboratory test results confirming the presence of the ST6 variant responsible for the listeriosis outbreak in samples of ready-to-eat meat products manufactured at its Polokwane facility. The then CEO of Tiger Brands, Lawrence MacDougall, noted that “Tiger Brands will take steps to consider and address any valid claims which may be made against it in due course”. Tiger Brands’ transparency and seeming willingness to address legitimate claims by victims of the outbreak was short-lived.

Since the filing of the listeriosis class action, Tiger Brands’ lawyers and insurers have exploited every legal technicality available and flexed their economic muscle to frustrate the speedy resolution of its victims’ claims. Its latest bid is an interlocutory application where Tiger Brands sought to subpoena virtually all major meat-processing facilities in the country and laboratories. Ostensibly, the company has argued that it needs the documents it has subpoenaed from third-party manufacturers and labs to inter alia prove that it was not the only party responsible for the outbreak.

Tiger Brands has argued that claims cannot be resolved until the third-party subpoenas have been resolved. This will inevitably, and I believe by design, lead to unimaginable delays in resolving the claims, more so considering the wide scope of Tiger Brands’ subpoenas – to which the manufacturers and labs have predictably objected. The subpoena fight is now before the Supreme Court of Appeal.

While the legal battles continue the victims of the outbreak, whose interest in the matter ought to be of paramount importance, are without recourse three years after Tiger Brands was fingered as responsible for their illnesses and continue to suffer from the lasting effects of their listeria infection. For example, many of the children who were born with listeriosis have ongoing neurological impairments and need ongoing medical care. One of the class representatives in the litigation, three-year-old Baby T, suffers from hydrocephalus because of her listeria infection – which is swelling around the brain due to fluid accumulation. Baby T has a ventriculoperitoneal shunt fitted into her head to stop the swelling, which has had to be replaced several times at great cost to her family. 

Baby T’s story is not unique.

Many more victims of the outbreak have died in the past three years due to complications related to listeria infection. Two of the 10 initial class representatives have died from complications. In all of this, Tiger Brands has continued business as usual. Tiger Brands products, including polony, have since returned to the market. In 2020, the company reported an annual revenue turnover of R29.8-billion, up by 4% from the previous financial year.

There is something seriously wrong with any society that would allow any corporation to sicken 1,065 unassuming victims and kill 218 with impunity. This is even more so when the entity is allowed to resume commercial operations at a great profit while its victims continue to suffer and die. For this reason, and notwithstanding the ongoing third-party subpoenas by Tiger Brands, in the coming weeks the attorneys will seek declaratory relief from the high court for the company’s liability on behalf of the victims of the outbreak. For the sake of the victims, I can only hope the court sees past legal technicalities. DM

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  • That he would need the support of the court of public opinion to side with him first is evidence that SA’s courts are an unmitigated disaster. Good luck, you’ll need it. That Tiger Brands hasn’t attempted settlement out of court is also illustrative of its social responsibility record.

  • Great article Thami.
    Life Esidemeni
    Estina Dairy
    Minister M (who had the SPCA charge her for neglect of farm animals)

    A trend – treat “our people” like cattle, an ANCestors trend, most unfortunate and disillusioning.