Historic listeriosis class action one step from go-ahead
Lawyer for some of the victims says this is the first time a class action has been agreed to by the company being sued
The victims of listeriosis, including Montlha Welhemina Ngobeni’s baby, who will have a shunt in her brain for life, are only days away from having the class action against Tiger Brands certified.
This is the first part of the legal process needed before the court case or settlement talks can go ahead. A judge has to certify the class action, which means agreeing to the order on how the case will proceed. Both Tiger Brands and attorneys for the complainants drew up the order the judge would check and approve.
More than 1,000 people contracted listeriosis from Tiger Brands Enterprise polony and 218 died, almost 100 of those babies younger than 28 days old.
About 150 people have already come forward to sue Tiger Brands for damages, emotional pain and loss of earnings. On Wednesday, advocates for the victims of listeria and Tiger Brands’s advocates presented their order on how the class action would work to deputy judge president Phineas Mojapelo in the South Gauteng High Court in Johannesburg.
Mojapelo said he was “reasonably” happy.
He said he would approve the order on Monday once a few paragraphs were reworded and vague paragraphs “clarified”.
This is to avoid the order being contested in court later. “Certification is not a terrain for contestation,” he said. Richard Spoor, the lawyer acting for some of the listeriosis victims, explained the case was historic because it was the first time in SA that a class action had been agreed to by the company being sued, in this case Tiger Brands.
He said Tiger Brands could have opposed the class action in a legal battle that could span years, but instead agreed to it.
The agreement reached by both parties enabled a quicker legal process, said Spoor.
The order that is almost finalised explains: The four categories of people who can sue: the relatives of breadwinners who died from listeria, caregivers of those who were ill, people who survived listeria and babies who contracted listeria before birth. Who the 14 people are who will represent all claimants, including those who have not yet come forward. The legal fees. Lawyers who represent claimants without pay can legally take up to 25% of what the claimants win. The figure in this case was decided as 20%. How the people who had listeria or lost loved ones will learn about the court case. This includes an order that the department of health needs to contact patients. The department is not legally permitted to share listeriosis patients’ details and medical history with lawyers, but is now obliged to notify them of the court case. The time frame for listeria victims to “opt out” of court case involvement. All victims will be considered part of the class action unless they opt out within three months of the order being certified next week. They could opt out if they wanted to file their own lawsuit.
What is not agreed on is also specified in the order. Tiger Brands is disputing the need for Marler Clarke American attorneys to consult for Richard Spoor attorneys in SA and then charge legal fees. Whether they can be involved or paid for will be decided in the trial, reads the agreement. Advocate Martin Kriegler SC told the court on Wednesday that Spoor was capable enough.
Tiger Brands said it had been working to expedite the process.
Spokesperson Nevashnee Naiker said: “The company’s legal representatives have been working closely with the attorneys for the claimants in the class action to agree to the terms of a court order for the certification. We have done this to help expedite the process and bring closure to all parties, particularly the victims of listeriosis as soon as possible.”
But for Ngobeni, the legal process is still too slow.
“I feel like resigning from my job. My nanny doesn’t look after my child like I would.
“If her head swells, she needs immediate medical attention.”
Ngobeni has gone back to work out of financial necessity. The baby has been sickly since birth. “It is very painful. There are a lot of milestones my child never had,” she said.
Her 11-month-old is still not crawling, and dad described the baby’s development as “stagnant”.
“My medical aid is exhausted now,” said a tearful Ngobeni outside court.