Tiger Brands may well spend the next decade in some form of litigation over the listeriosis disaster, in which 218 people died. The company has said it intends to defend itself against a class action suit, launched by the attorney who eventually got justice for the gold miners poisoned by silicosis, Richard Spoor. 
Is this squaring up to be a humdinger fight? Particularly with Tiger Brands’s insurers?
They play a very prominent role, they’re funding the litigation, we saw they’re going to pay the conventional damages and I assume that in terms of these insurance contracts, they will control the process.
We’ve issued summons and incorporated in that summons is a claim for punitive damages. The punitive damages are interesting in two respects: one, it’s not usual, there’s not really provision in the law for it although we saw something about it in the Life Esidimeni matter when Dikgang Moseneke awarded punitive awards of R1m to the families of each of these mentally handicapped people who died.
So there is some kind of precedent and there is a fair amount of case law about it and we’re basing this on the gross nature of the violations, the violations of people’s constitutional rights.
But what’s interesting about what you see in the Tiger SENS announcement is that those claims aren’t covered by the insurance policy, so that’s why they issued the notice to alert shareholders. So we’re going to wait to see how they plead. But you’ve got to be pretty brave to go into a court and argue this question of punitive damages, whether they’re allowed in our law or not because a ruling against you would have quite significant consequences.
So maybe they’ve got an appetite for it but it’s a difficult one because the pleadings make out a very strong, damning case and you’ve got to argue the legal point by reference only to the pleadings. You’ve got to explain why the law doesn’t apply for punitive damages. So the idea is is to push the gap a bit between Tiger and its insurer, and basically say look: you’ve got to deal with this thing, you’ve got to sort it out as soon as possible.
Is it always the case that the insurers call the shots?
In the US disclosure about insurance is upfront, it’s part of the process, we know who the insurers are, we know where they are; in SA, it’s very rare. And that’s quite interesting and quite refreshing: let’s know who we’re dealing with.
Have you put any figures yet on what you would be claiming from Tiger Brands? It’s a two-part case: liability first and then argue about the quantum of damages after.
I said that we’ve got a really slam-dunk case. One thing is they decided to use in-house laboratory services, so the information we have is that some time before this outbreak, they put out a tender to labs to provide services, decided it was too expensive and took it in-house. We had a sense that that’s where the problems may have come from.
It’s going to be hard for Tiger which is why I really can’t imagine that we’re going to go to trial on the merits. The quantum is problematic and one of the reasons it’s problematic is that our law doesn’t really place much value on the life of infants or old people – they’re not breadwinners, so technically the mother may cry and weep and be distressed but that’s not actionable.
Emotional shock only becomes actionable if it results in a psychiatric condition or depression or PTSD [post-traumatic stress disorder]. So your claim is typically limited to funeral costs and medical expenses, so one of the reasons behind the punitive damages is we need to change that. You can’t kill my kid and then expect to cover the funeral costs and walk away. It’s wrong, and that’s what motivated the Life Esidimeni case.
That means there’s a problem in our law: our law is conservative and that’s wrong. So we’re working up an argument around what is the appropriate damages for someone who kills your child. If I defame you, impugn your personality, I have a defamation claim. But if I impair your right to your bodily integrity, or to a safe and healthy environment, our courts say no, we don’t rule on punitive damages. That’s bizarre, there’s something wrong here.