Client Update: 05 May 2021
Greeting to all our clients!
05 May 2021
During the first quarter of 2021, the Listeriosis Class Action team have been working hard and forging ahead with the litigation against Tiger Brands. In this update, we will provide feedback on what our focus has been so far this year, and what to expect in the coming months.
Client Outreach
Spot of Innovation is continuing with new client outreach in order to onboard as many victims of the listeriosis outbreak as possible. Mr Shaka Dzebu has been visiting clients in Gauteng and surrounding areas. Mr Dzebu also facilitates document collection with existing clients, where necessary. Many clients have struggled to get documents to us and the ability of Mr Dzebu to attend directly on client homes has improved the speed of this process. If you have not finalised providing all documentation, please let us know how we can help.
Document Collection
As the case develops, the Class Attorneys have sought to provide Tiger Brands with information on each victim of the outbreak to paint a picture of the scale of harm and injury endured by the Class Members. A narrative of each client’s experience, NICD records, medical records and any other important information are put together to create a pack for each client. The packs are sent to Tiger Brands so that they may understand the nature and extent of the damages suffered and to encourage a reasonable settlement of the dispute.
We rely on information provided by clients to complete client packs, biographical questionnaires and psychological assessments. It is crucial that the information is correct, including documents such as identity documents, birth certificates and affidavits. The Class Attorneys continue to send out requests for information to prepare for the next stage in the litigation and to build a strong and convincing case.
This matter requires the co-operation of every client to maintain momentum and build a strong case. We urge clients to return the documents we request in a timely manner. Every document and piece of information that we receive quickly moves the case along that much faster.
Consumption Affidavits
In addition to the document collection above, the Class Attorneys have requested that clients sign and commission consumption history affidavits. The purpose of these affidavits is to show the causal link between clients consuming Enterprise ready-to-eat meat products within the outbreak period and subsequently becoming ill and suffering harm. Without this document, we cannot determine whether each client’s case is part of the class action.
It is imperative for each page of the affidavit to be initialled by both the client and the commissioner of oaths, and for the client and commissioner of oaths to sign on the signature line at the end of the affidavit, in order for it to be legally binding. Commissioners of oaths occupy various offices and clients may visit law firms, post offices, principals of schools and police stations to get their affidavits commissioned free of charge.
Please ensure you follow the above directions to ensure the affidavit is commissioned and finalised correctly to avoid having to redo the process.
Discovery
In trial litigation, discovery is a process whereby each party is required to disclose all documents, recordings and correspondence relevant to the litigation, provided that they are not legally privileged.
Tiger Brands has taken over 18 months to make proper discovery, and many relevant documents have still not been discovered. The reason for the delay is that Tiger Brands’ electronic records exceed 16 terabytes of information, equating to more than 8 million files that need to be reviewed to determine whether the information is relevant to the litigation and whether any information is legally privileged. As was evidenced by our application to compel discovery in 2020, it is clear that the Class Attorneys are not in agreement with Tiger Brands’ approach on discovery. Due to the extent and complexity of Tiger Brand’s discovery documents, it was agreed that a unique approach would be adopted and that discovery would be made in tranches of documents.
In the first tranche of discovery, the Class Attorneys have requested all information relating to the procedures that Tiger Brands had in place to ensure that their food products were ready for consumption and safe to eat. These procedures are commonly referred to as the HACCP documentation and records.
The first tranche of Tiger Brands’ discovery has been reviewed by the food safety experts, Prof Ryk Lues and Ms Anya Knoetze. It initially appeared to be all the procedures, protocols and systems relating to safe food handling at the Enterprise meat processing facility in Polokwane.
However, upon expert assessment it became apparent that Tiger Brands had failed to provide critical and relevant information. A meeting was requested with Tiger Brands on 8 April in order to narrow remaining disagreements on discovery.
At this meeting, Tiger Brands stated that they had provided the Class Attorneys with only the hardcopy documents of their food safety procedures. They stated that the electronic HACCP documents and records remained outstanding. This was the first instance where Tiger Brands had confirmed to the Class Attorneys that their first tranche of discovery was incomplete. It was agreed that Tiger Brands would determine whether their food safety information was readily available or, alternatively, whether they would have to reconstruct their food safety procedures with the assistance of an expert to provide the Class Attorneys with a full picture of their food safety protocol and procedure.
Tiger Brands has since stated that they should be able to complete their review of electronic documents and to discover and produce the relevant HACCP documents and records, by no later than 9 July 2021. The Class Attorneys believe this timeline is unreasonable and would create unnecessary delays in the case that would prejudice the interests of the Class Members. As such, the Class Attorneys will insist that a case management meeting with Judge Lamont is held to request a third party to oversee and manage the discovery process, also to ensure that strict and reasonable timelines are adhered to.
The report to be drafted by Prof Lues and Ms Knoetze showing whether the Tiger Brands acted as a diligent and reasonable food producer before, during, and after the outbreak will depend on the content of their food safety procedures and protocols. These reports cannot be finalised until the discovery of the HACCP documents has been finalised and have been put on hold until Tiger Brands has provided a full picture of the food safety procedure. This report will be used in support of the claim that Tiger Brands acted negligently in causing and responding the Listeria outbreak.
Damages Assessments
The assessment of damages of each client informs the second phase of the litigation. The Class Attorneys will continue over the upcoming months to conduct biographical questionnaires and narrative interviews with clients to gather as much information as possible from clients regarding the incident.
The purpose of the biographical questionnaires is to comprehensively investigate the impact of contracting listeriosis on each of our clients’ lives, emotionally, financially and socially. This information will ultimately be used to calculate the amount of damages that we demand from Tiger Brands to compensate our clients for the injury and harm suffered, due to contracting listeriosis. It will also inform which clients require further expert assessments to determine the nature and extent of the harm suffered.
Psychological Assessments
The Class Attorneys have engaged Mr Martin Yodaiken and Dr Shona Fraser to complete psychological assessments on a sample of selected clients. These assessments were completed on 10 April 2021. We have received a preliminary report from our psychologists in this regard with suggestions on a broader assessment and approach to psychological injuries.
These assessments will further support our claim for damages from Tiger Brands during the second part of the litigation.
Moving Forward
The Class Attorneys continue to push the class action forward and shall update the class members on all further developments as they arise.
Our offices are open to address any concerns you may have. Please also ensure that you inform us should any contact detail or personal circumstance change.
Please 'WhatsApp' or send a 'please call me' to 082 044 0875, or email listeria@rsinc.co.za and we will get back to you as soon as we can. Alternatively, please liaise with the paralegal you have been in contact with.
Lastly, please note you may receive a call from 010 009 6925, this is our Johannesburg number. Please save this number to your phone.
Yours faithfully,
Alexander Spoor