South Africa needs an effective law enforcement system to hold corporations accountable, says public interest lawyer Richard Spoor, who has spent six years trying to hold Tiger Brands accountable for poisoning consumers.
"You can’t leave it to civil society, you can’t leave it to the civil justice system. We don’t have the money, we don’t have the resources. We can be dragged out, we can be pushed around, we can be shoved off."
That’s pretty much what’s been happening since he launched a public action lawsuit against the largest food producer on the JSE six years ago for a listeriosis outbreak which killed 218 people and left more than 1,000 maimed between 2017 and 2018. It has yet to go to trial. In March 2018 the National Institute of Communicable Diseases (NICD) linked the poisoning to polony produced at Tiger Brands’ Enterprise Foods factory in Polokwane. Their research was published in the New England Journal of Medicine in 2020.
"The crux of the New England Journal [article] is that we’ve got a genetic fingerprint of this bacteria. A very, very precise fingerprint," says Spoor.
The NICD scientists took 340 samples from people who had listeriosis, 27 samples from the factory and 19 food samples. Whole-genome sequencing analysis performed on these samples confirmed the source beyond any doubt.
"We’re talking about a level of precision that is orders of magnitude more precise than the DNA testing we use for paternity tests or tests linking perpetrators to rape."
In spite of this conclusive scientific evidence, Tiger Brands have used cynical delaying tactics to evade accountability, he says.
Shortly after the class action was certified in 2018 they issued subpoenas to food testing laboratories and food producers around the country and asked them to disclose the results of all testing they had done during the outbreak period for the listeria monocytogenes ST6 bug.
When the laboratories and food producers refused, Tiger Brands went to the high court, which struck off the subpoenas.
"They said it was a fishing expedition, goodbye Tiger," Spoor says.
Tiger Brands appealed. The Supreme Court of Appeals (SCA) rejected their appeal, agreeing with the high court that the company was on a fishing expedition.
The SCA made the point that the claim against Tiger Brands was based on the contaminated product they produced. The claim was only made for people who suffered harm as a result of the consumption of Tiger Brands’ contaminated product. If anybody else had any responsibility for listeriosis during this time it had nothing to do with the case against Tiger Brands.
"Tiger had no bona fide grounds to believe that anybody else was responsible for the outbreak", says Spoor. "It was an exercise that had no chance of succeeding, and that cost two years.
"They persisted with this despite the NICD declaring that they had been through all of these food testing laboratories’ records, which obviously they did as part of their detective work."
The NICD said in their reports on the source of the outbreak that they did not find the ST6 strain anywhere else.
"Tiger Brands were the only people who produced the ST6 strain implicated in the outbreak, and they knew this very well."
When the New England Journal of Medicine article came out in 2020 Spoor confronted Tiger Brands with it, in effect telling them, "There you have it, this is the link."
In what he calls another "cynical delaying tactic" Tiger Brands then said they couldn’t rely on the journal article, they needed to see the underlying evidence. They needed the "raw data" of the whole-genome sequencing the NICD had done, to check that the results were correct.
"They wanted us to give them the files of the DNA sequence for each one of 390 isolates so they could read them themselves to check that the results published in the New England Journal of Medicine were correct."
Spoor engaged with the NICD to provide him with that underlying data, but they didn’t have time because they were busy with the Covid outbreak. Earlier this year they finally did.
"We said to Tiger Brands, ‘Now you’ve got what you said you wanted. Read it yourself and confirm it’s the same bug that was found in your factory.’
"Now Tiger Brands is saying they’ve referred it to their experts who are reviewing it "but have yet to conclude their work". Spoor is not holding his breath.
"You’d imagine these experts would already be familiar with the New England Journal of Medicine article, which spells it all out. They don’t need anything more at all."
He says the role of insurers in all this is "certainly a factor" and needs to be looked at.
"It’s in their interests to pay up as late as possible. They have the asset, it’s invested and is growing while the damages claims are not growing. There is the prospect that the plaintiff will run out of money, that the claimants will get despondent and settle cheaply."
The insurer, Santam, owns the claim and could walk away from it if Tiger Brands admitted responsibility.
This is no excuse, however. A large company like Tiger is likely to have leverage over its insurers, Spoor says.
"But there is nothing on Tiger’s side about remorse, regret, desire to make good. Nothing in anything they’ve ever said that shows even an awareness of some kind of responsibility on their side."
He’s asked for interim relief for his more than 1,000 mostly poor clients who are still suffering severe health repercussions from eating the infected polony, but they’ve received "nothing whatsoever" for medical costs.
He says corporations can only play the insurance card to evade accountability if the only people holding them accountable are civil lawyers pursuing civil action.
"Where are the police? It’s not our responsibility to hold Tiger Brands accountable, it’s the state’s responsibility. This is a public health disaster, a catastrophe caused by the reckless conduct of a giant corporation."
Accountability means being held accountable by the criminal justice system, he says.
"You can’t just kill 218 people, and cripple and maim others recklessly and irresponsibly, and walk away."
The NICD investigation found there was negligible supervision and no testing.
"At a minimum the negligent killing of a person is culpable homicide, it’s a crime. Where are the inquests, where’s the National Prosecuting Authority?"
Once Tiger Brands pleads guilty to 218 counts of culpable homicide in a criminal court then the whole question of insurance is irrelevant, he says.
"Because now your liability has been established beyond any reasonable doubt. The hold of the insurers is gone."
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