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Cape Town – Consumers, who can establish that they have contracted listeriosis due to eating infected food products, may be able to recover damages, according to Kirstie Haslam, a partner at DSC Attorneys.
The source of SA's latest outbreak of listeriosis was traced to an Enterprise Foods facility in Polokwane. Tiger Brands, of which Enterprise Foods is a subsidiary, has suspended operations in Polokwane and Germiston and is working with regulators to get the factories ready for operations again as soon as possible.
Casparus Treurnicht, a research analyst and portfolio manager at Gryphon Asset Management, told Fin24 on Monday that Tiger Brands will likely involve legal experts to mitigate lawsuits. He said class action lawsuits could not be ruled out either.
Anthony Clark, equity analyst at Vunani Securities, also raised the matter of compensating the families of those who have died or are sick.
During a media briefing on Monday, Tiger Brands' CEO Lawrence MacDougall, however, emphasised that the company is unaware of any evidence to show a direct correlation between the 180 listeriosis-related deaths so far and the group's products.
Haslam cautioned that claiming for damages in cases such as these can be complex. The damages can be claimed either by means of the Consumer Protection Act or a delictual claim as the result of negligence.
The Consumer Protection Act provides that a consumer may sue any party in the chain of supply. This would include the manufacturer, importer, distributor or retailer of infected food products.
A consumer must prove the diagnosis, that it was as a result of eating the infected food product, where and when the infected food product was purchased and any losses incurred as a result thereof.
Generally, people have three years from the date of the cause of action arising to institute a claim by issuing and servicing a summons.
Suing in delict refers to a situation where one suffers reasonably foreseeable and avoidable harm as a result of another’s negligent act or omission.
Should a delictual claim be pursued, Haslam explains that the victim would still have to establish an element of fault. That means proof that the manufacturer failed in its duty of care to take reasonably necessary steps required to prevent the food products from being infected.
The extent of the damages which can potentially be claimed includes treatment costs, lost income, general damages for pain and suffering and emotional trauma.
She pointed out that, should a breadwinner, who had a duty to support dependents and was supporting them, pass away as a result of contracting listeriosis, those dependents may have a claim for the lost financial support. In some instances, they may also be able to claim for the emotional trauma suffered.
Products removed
Retail companies wasted little time pulling Enterprise Foods’ polony and vienna products from their shelves. Woolworths asked customers to return close to 35 different product items for a full refund. Woolworths acknowledged to Fin24 that Enterprise Food supplies meats for the products it was recalling, necessitating that even some of its house brand products be pulled or refund.
Pick n Pay, Shoprite and Checkers also pulled certain products from their shelves. Shoprite Group is prepared to accept already opened recalled meat products for a full refund and will not even ask for proof of payment.
Dr Ziyanda Majokweni, director of the poultry disease management agency at the SA Poultry Association, told Fin24 the Industry has not as yet evaluated the impact. It is, however, expected that, should the required corrections require prolonged periods of facility closure, it will result in production losses and job losses.
"SAPA continues to monitor this matter and liaise with stakeholders," she said.
Tiger Brands’ share price dropped almost 13% in early trade on Monday and by close on the JSE it was down 7.44% at R393.38 from the close on Friday. By early afternoon on Tuesday the Tiger Brands share price was trading up 3.65% at R407.74.
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