On Thursday lawyer Richard Spoor, working with the United States-based Marler Clark attorneys, filed a class action lawsuit in the Johannesburg High Court arguing for constitutional damages for the almost 1000 people affected by the listeriosis outbreak – the worst in recorded global history.

“We are buoyed by the decision of Judge [Dikgang] Moseneke in the Life Esidimeni arbitration, where he awarded constitutional damages to the families of the victims of the most egregious violations of their human rights,” wrote Spoor on Facebook on Wednesday evening.

Lead attorney for the case from Richard Spoor Inc Attorneys Thami Malusi told Health-e News that awarding constitutional damages “is something that is not common in South Africa”. But he said that the Life Esidimeni award, equating to over a R1 million per family, has been a catalyst for their own listerosis claim – despite the fact that the Esidemeni claim happened outside of the courts.

There have only been two examples of large constitutional damages awards in the history of the South African legal system and, if successful, Spoor’s could be the third.

Although the attorneys are representing 70 people affected by the outbreak, they are using 10 applicants in their case against the Tiger Brands “whose stories and the consequences they’ve experienced best represent those across the entire spectrum”, said Malusi.

These include families of those who have died and people who have contracted the illness but survived. So far listeriosis has killed more than 180 people and there have been close to 1000 laboratory confirmed cases.

The lawyers expect more people to come forward once the case is accepted by the court and they are permitted to advertise in the media.

Tiger brands denies link

Malusi said “this is a special case”, and anticipated that the court might time to consider the 500-page application. It could thus take up to eight months for the case to be heard by the court.

“Our strategy is for Tiger Brands to settle, but if they refuse we will proceed to court,” said Malusi.

On March 4 Health Minister Aaron Motsoaledi announced that the listeriosis outbreak had been tracked to an Enterprise Foods facility in Polokwane sparking a nation-wide recall of processed meats, especially polony.

But Tiger Brands has consistently denied a link between their products and the deaths despite the ST6 strain found in their facility which caused 91 percent of the fatalities.

“It was found in our factory but, to date, we still have no link between our products, the ST6 strain and the deaths,” said Tiger Brands’ communications director Nevashnee Naicker. “If it is found that our products have made people sick and caused fatalities we have consistently said we will do the right thing and will go through a compensation process.”

The National Health Department’s Popo Maja said he cannot comment on the lawsuit at this stage but that they are “willing to co-operate” with Spoor and his legal team. – Health-e News