Boxes of Jungle Oats, one of South Africa's Tiger Brands original products. Picture: REUTERS, MIKE HUTCHINGS
Boxes of Jungle Oats, one of South Africa's Tiger Brands original products. Picture: REUTERS, MIKE HUTCHINGS

Tiger Brands has been accused of delaying the listeriosis class action to place pressure on the plaintiffs to settle for less, and lawyers representing 700 claimants have now made an application to the high court in Johannesburg to compel the company to hand over documents.

Tiger Brands was due to hand documents and any material facts it may rely on in its defence to the plaintiffs' attorneys, Richard Spoor Inc, by the end of May, but failed to do so. The attorneys lodged a court application on June 24 to compel the company to submit the documents within 10 days. It is still waiting for the court to rule on this application.

"We believe that they are playing for time," said attorney Richard Spoor.

He said Tiger Brands knows that the claimants - who include women who have miscarried, children who have neurological defects, the families of babies who died at birth and aged patients whose psychiatric conditions were aggravated by the disease - are experiencing hardship, and any delay punishes them.

Catherine Marcus, a candidate attorney at Richard Spoor Inc, said Tiger Brands must provide a schedule of all information relevant to the case in its pleadings, whether it considers that information privileged or not, for the plaintiffs' legal team to examine.

Tiger Brands denies it is dragging out proceedings, saying it is doing due diligence and the Covid-19 pandemic has delayed its work.

Corporate communications director Nevashnee Naicker said Tiger Brands "remains committed to having the disputes determined as soon as possible, on the basis of all the relevant evidence. It will continue to conduct its defence in a responsible manner to ensure an expeditious outcome in the interests of all concerned."

According to the National Institute for Communicable Diseases (NICD), the listeriosis outbreak in SA was one of the world's worst, with 1,060 cases reported from January 1 2017 to July 17 2018.

In a journal article, the NICD said laboratory tests show it was highly probable that the source of the ST6 listeriosis infection was Tiger Brands' Enterprise factory in Polokwane, Limpopo.

Marcus said many of the victims of the outbreak have permanent complications, including neurological damage, constant fatigue and memory loss. Some have lost a breadwinner or experienced trauma due to the loss of a loved one, and there are almost 100 women who either miscarried or lost a newborn child, she adds.

Marcus said Tiger Brands' delay in compensating the victims means they are unable to receive further medical, psychological and financial assistance, which in some cases causes further harm.

"Tiger Brands should not take this to trial. We trust that this case will not need to go to trial and Tiger Brands will seek to compensate the victims for the harm it directly caused," said Marcus.

"We want a speedy and appropriate outcome for the victims. However, until that time, we will continue to prepare for trial, with an expectation that the first part of the trial will commence this year."

Tiger Brands had its own battles getting hold of test results from laboratories, ultimately succeeding in court on June 23 in getting the information handed over.

Spoor maintained that this court action was a "fishing expedition" by Tiger Brands to look for ways to avoid liability by attempting to show that other strains could have been responsible for the outbreak.

Naicker denied it was a fishing expedition. She said the results, which the NICD relied on, are critical for ruling out possible sources of the outbreak strain other than Enterprise's Polokwane facility, and are material to the assessment of liability.

She said they will also show whether all the relevant information has been properly collated and taken into account.

Spoor has proposed a separation of the legal issues. This would mean that strict liability, which would fall under the Consumer Protection Act, would be settled separately from negligence. This could allow claimants to receive financial relief earlier.

But Tiger, Spoor said, is opposing this.

Tiger declined to comment on this proposal, with Naicker saying: "We must point out at the outset that it is not appropriate to comment on matters that are pending before court."

For the Spoor Inc team, processing large volumes of scientific, medical and legal information has prompted it to adopt artificial intelligence.

The 25 people working for the plaintiffs include food safety specialists, medical experts, genome sequencing experts, paralegals and attorneys. Their work is partially funded by the food safety firm Marler Clark, which is based in the US and UK.

Marcus said the class action requires multiple attorneys working full-time on the case, support staff and logistical support to assist clients, consultations with top international experts and counsel.

The firm has a contingency fee agreement in place with its clients, in accordance with the Contingency Fees Act. She said that in matters of this nature, the legal fees of the plaintiffs are often incorporated into the settlement agreement, but, if necessary, fees may be recouped from the final compensation of clients.

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