CLASS ACTION SUITS – A SOUTH AFRICAN

HISTORY AND CONTEXT

Class and group action suits are a phenomenon aboard, especially in countries like the United
States.[1] These actions differ from traditional civil litigation whereby a single litigant sues
another single party for damages in that the matter involves a group of litigants against a
single party who allegedly caused the damage.
[2]

Prior to 1994, class actions were foreign to South African law and judges took and an
extremely cautious approach to standing[3]. Traditionally, a litigant would have to show
personal interest in the case or be formally joined. This notion changed in the democratic era
[4]

when Chaskalson P remarked:

“Whilst it is important that this Court should not be required to deal with abstract or
hypothetical issues, and should devote its scarce resources to issues that are properly before
it, I can see no good reason for adopting a narrow approach to the issue of standing in
constitutional cases. On the contrary, it is my view that we should rather adopt a broad
approach to standing.” [5]

In our Final Constitution , section 28(c) provides standing to approach a court for “anyone
[6]

acting as a member of, or in the interest of, a group or class of persons”. We see that there is
opportunity to bring a class action suit. However, this opportunity seems to only present itself
in cases where a right in the Bill of Rights has been infringed or threatened, as implied by the
lead-in language of the provision. In support of this notion, Traverso DJP, in the
2008 Firstrand Bank[7] case, noted that other that in constitutional matters, “the South
African common law does not recognise class actions.”

Despite the above seeming limitations, there is no statutory definition that defines the
requirements of a class action and what constitutes it. As the years have gone on, there has
been legislation enacted that seems to permit class action in cases where a constitutional right
is not necessarily affected. The Consumer Protection Act[8] allows standing for “a person
acting as a member of, or in the interest of, a group or class of affected persons”. The
National Environmental Management Act[9] similarly provides “any person or group of
persons” relief in terms of the Act.

Jurisprudence has served to give content to class actions. The Children’s Resources Centre
Trust case sets out procedure for certification of class actions. The court must consider the
[10]

existence of a class identifiable by objective criteria;

 a cause of action raising a triable issue;

 that the right to relief depends upon the determination of issues of fact, or law, or
both, common to all members of the class;
 that the relief sought, or damages claimed, flow from the cause of action and are
ascertainable and capable of determination;
 that where the claim is for damages there is an appropriate procedure for allocating
the damages to the members of the class;
 that the proposed representative is suitable to be permitted to conduct the action and
represent the class;
  whether given the composition of the class and the nature of the proposed action a
class action is the most appropriate means of determining the claims of class
members.

From this we see a recognition from the Supreme Court of Appeal that class actions can be
brought but must first be certified by a court. The Constitutional Court has subsequently
held[11] that the above considerations are not requirements and conditions precedent but
rather factors to be taken into account in determining where the interests of justice lie in a
particular case.[12]

CURRENT CLASS ACTION CASES

In 2016, the ‘silicosis’ case allowed damages for former mineworkers suffering from silicosis
and tuberculosis to be paid by mining companies. The case allowed for the certification of
two classes of cases – the silicosis case tuberculosis case. Since the evidence of the miners
was similar and would have to be repeated in each case, it was economical as well as
practical to certify the class action suit. The case was appealed to the Supreme Court of
Appeal by the mining companies on the main ground that the “class” of claimants was too
broad as the litigants had worked at various mines over a period of 50 years. While the case is
set to be heard by the Supreme Court of Appeal, there are also discussions about possible
settlement agreements with the mining companies having allocated money in a trust for this
purpose.

Most recently, the listeriosis outbreak allegedly caused by Tiger Brands products including
cold meats have caused deaths and illness to many. Most of these victims are poor. Two law
firms have called on claimants who have suffered loss or harm due to the outbreak to form a
class action suit. At the time of writing this brief, the case seems to be gaining traction with
nearly 1000 parties coming forward to join the class action.