Tiger Brands should be afraid‚ top lawyer warns after Esidimeni ruling

20 March 2018 - 06:44 By Katharine Child
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Tiger Brands CEO Lawrence Macdougall.
Tiger Brands CEO Lawrence Macdougall.

Tiger Brands has reason to worry after the Esidimeni arbitration award‚ as life might not be so cheap anymore‚ according to a leading lawyer.

On Monday‚ former deputy chief justice Dikgang Moseneke awarded R1-million in constitutional damages to 68 survivors and 67 families who lost loved ones in the Life Esidimeni tragedy.

This huge payout to people who weren't earning money sets a precedent‚ said Richard Spoor‚ a class action lawyer representing families who lost loved ones from listeriosis. Spoor plans to sue Tiger Brands for millions.

The food producer's Enterprise factory in Polokwane was infected with ST6 listeria‚ the strain that caused illness in 91% of the people who got listeriosis.

Spoor said many people who died from listeria were old or poor or very young and payouts for them would usually be low.

In South African law‚ if someone is harmed or dies through state or company negligence‚ the payout to the family is mainly to compensate for loss of earnings. Poor people can die at the hands of state or business with no cost implications for the guilty parties.

Spoor said: "Unless you are a breadwinner‚ killing you has no consequence [in civil claims]. In South Africa‚ life is cheap‚ children are cheap‚ babies are cheap."

But on Monday‚ on the final day of the Life Esidimeni arbitration hearings‚ Moseneke awarded R1.2-million to families of the dead who had earned nothing as they were institutionalised psychiatric patients. Of this‚ R1-million was for constitutional damages.

Rights group Section 27‚ who represented 63 families‚ noted that Moseneke had found the state had grossly violated "the constitutional right to human dignity‚ the founding values of the constitution and the principles governing public administration‚ the right to family life and the right to access to quality healthcare services".

Spoor's case is a class action law suit by people who lost babies or loved ones to listeriosis. The Esidimeni case was an arbitration hearing in which the state came to the table and admitted liability.

Despite the legal differences‚ Spoor still believes Moseneke's judgment matters.

"He is a renowned jurist. Anything he says is taken by lawyers and the courts very seriously."

Spoor said litigating for the poor is not done often because payouts are so small if low earners or the destitute were harmed or killed.

But Monday's judgment awarding constitutional damages‚ which are not linked to earnings or wealth‚ bodes ill for Tiger Brands.

Spoor said: "We were considering asking for constitutional damages in this case. We were thinking about it. Moseneke's ruling is hugely encouraging for us."

Before the hearings began‚ Moseneke said he would seek to decide what a life was worth "in a country where half of people were not earning [a salary]".

"If someone invades their dignity‚ how do they get compensated?" said Moseneke.

Speaking on how damages are linked to the loss of future earnings‚ he said a month before the hearings: "There is quite a big debate to be had here. If you have no money whatsoever‚ do we just say sorry if you're dead?"

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