So all it takes for Tiger Brands to have a swift change of heart over its moral complicity in the deaths of 218 people from listeriosis, it seems, is for it to drag its heels for years and then have a bruising judgment against it handed down by the Supreme Court of Appeal (SCA).
Many people will no doubt be surprised to read Tiger Brand’s sombre assurance this week that it is "committed to ensure that a resolution of [a class action lawsuit brought against it] is reached in the shortest possible time, in the interests of all parties, particularly the victims of listeriosis".
That’s some pretty arresting cognitive dissonance.
After all, isn’t this the company — the same one that sells All Gold tomato sauce, Albany bread, Tastic rice and Mrs Ball’s chutney — that has spent the past three years doing its litigious best to hoover anyone else it could find into the lawsuit, precisely to delay any kind of "resolution"?
The story began on March 4 2018, nearly four years ago, when the health authorities said they had traced the source of a listeriosis outbreak that had killed 218 people — 93 of whom were babies younger than 28 days old, and nine of whom were between one month and 14 months old — to Tiger Brands’ Enterprise factory in Polokwane. As the worst listeriosis outbreak ever, globally, it affected 1,060 people between January 2017 and July 2018.
But Tiger’s response was to accept zero blame. In a farcical press conference at the time, former CEO Lawrence MacDougall appeared entirely indifferent to the victims, claiming: "There is no direct link with the deaths to our products that we are aware of at this point."
This is despite Tiger’s own investigation later admitting it had received "independent laboratory tests which confirm the presence of listeria ST6 in samples of finished ready-to-eat processed meat products from its Polokwane Enterprise Foods manufacturing facility".
But after lawyer Richard Spoor lodged a class action lawsuit against Tiger Brands on behalf of 14 listeriosis victims, things got even worse for the company.
Enter Clyde & Co, the cold-blooded lawyers for Tiger Brands’ insurer, Santam (which won no friends when it rejected a heap of business interruption claims for Covid).
In response to Spoor, Clyde & Co filed a 27-page plea in which it stopped just short of denying gravity. It denied the outbreak could be traced back to Tiger’s factory; denied those 14 people were affected; and denied children born to mothers "who had consumed the contaminated products contracted listeriosis and suffered harm".
We can prove that Tiger is the source of the outbreak, like we can prove the Earth orbits the sun
But that wasn’t enough. Tiger’s lawyers then subpoenaed swathes of documents from other labs (including Aspirata, Deltamune and the National Health Laboratory Service) and meat producers (including Federated Meats), ostensibly to see who else might have spread listeria at the time. It looked for all the world like the lawyers were hurling spaghetti at a wall, hoping the listeriosis victims who lodged this case would either run out of money or energy.
Last week, the SCA delivered a fitting rebuke to Tiger Brands over these pointless subpoenas. In his ruling, judge Tati Makgoka found that many of the documents which Tiger Brands had tried to subpoena were simply "irrelevant for the purpose of the class action".
"Its demand for production of documents [to prove it wasn’t the sole source of the listeriosis outbreak] is entirely speculative. It seems to hope that in the midst of all the test results it requires, it would find a basis on which to pin co-liability on another party," he said. As a result, Makgoka set aside Tiger Brands’ subpoenas entirely.
You might think this ordeal — which underscored just how ruthless Santam’s lawyers had been — would have chastened the company somewhat.
You’d be wrong. In a haughty statement to Business Day, Tiger Brands said the judgment "paves the way for the next step in the legal process". It said it was "saddened" by the impact this ordeal has had on the lives of the victims.
Sad, perhaps — but not so sad that it would stop its insurers needlessly dragging out the court process. Not so sad that it would try to settle the case, or even offer the victims the medical assistance they need.
Rather than paying lip service, perhaps Tiger Brands would do well to speak to some of the victims — such as Promise Mbatha, whom the FM interviewed two years ago.
Mbatha, a regular consumer of Enterprise polony, told how she had been admitted to Chris Hani Baragwanath hospital with vomiting and diarrhoea while pregnant in 2017. "I was in so much pain, I ended up going into labour, but my baby was not breathing properly so she was sent to the ICU. At 2am, they called me to the ICU, when I got there, the [doctors] told me my baby had passed away."
Six months later, a team of researchers called her to tell her the baby had been infected with listeria.
For Spoor, it’s laughable that the company now speaks of a "speedy resolution", when its fishing expedition with the subpoenas led directly to an 18-month delay.
"Tiger and its insurers have dragged out the litigation for three years to enhance their bargaining position in a matter which must be settled," he says. "It’s one of those cases where, as a matter of scientific fact, we can prove that Tiger is the source of the outbreak, like we can prove the Earth orbits the sun. But until a court confirms that this is a legal fact, Tiger can evade responsibility."
Contrary to its public statements last week, its annual report makes hardly any mention of this awkward lawsuit, except for the odd reference to "associated reputational concerns" around the class action. It doesn’t help to spin yourself into circles bleating about how you’re a "caring corporate" when everything you do screams the opposite.
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