This brief considers the emerging legal field of class and group action law suits in South Africa.
28 March 2018
With a class action in the works for the recent listeriosis outbreak, careful consideration should be given as to how these actions can be beneficial in assisting victims who suffered on a group scale.
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[2] who allegedly caused the damage.
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.[4] This notion changed in the democratic era 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[6], section 28(c) provides standing to approach a court for “anyone 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[10] case sets out procedure for certification of class actions. The court must consider the 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.
Concluding Remarks
Class actions may be useful especially in countries like South Africa where the majority of the population is poor and would not be able to afford costs associated with litigation. In an environment where the Consumer Protection Act (CPA)[13] should afford South Africans extensive consumer protection, many people are still unaware of their rights especially in terms of receiving fair value, good quality and safety[14]. Even if one is aware of their rights, they will likely need to litigate to enforce these rights. The CPA makes it easier for a consumer claim – section 61 allows claims for damages even if no negligence is proved. The CPA does not provide for a specific platform as to where a claim for damages is to be lodged. The courts’ power to determine whether harm has been caused and, if so, the extent of the harm, is alluded to in section 61(6). We see therefore that litigation is involved. As mentioned, the majority of the population would struggle to afford the costs of these pursuits. For a case to be viable, the desired outcome must exceed the expense bared. Further, a poor litigant will be at a disadvantage in comparison to the well-represented and endowed corporate supplier. Class actions allow for litigation for small claims on a mass scale. They allow for claimants to band together and for evidence in common to be pooled to make a strong case.
Class actions have the additional benefit of promoting good quality goods and services and decrease the risk that corporate suppliers could get away with injustices, that on a mass scale amount to large financial gain to them at the expense of a consumer.
While the outcome of the proposed listeriosis case is uncertain, what is clear is that class action law suits in South Africa are gaining traction. It will be interesting to see how courts and law firms deal with this emerging field of law.
This article first appeared as an HSF Brief.
Footnotes:
[1] “The class action is among the most powerful legal tools available in the United States.” An Introduction to Class Action Procedure in the United States Janet Cooper Alexander available at https://www.law.duke.edu/grouplit/papers/classactionalexander.pdf accessed on 22/03/18.
[2] While a single party defendant/respondent is usually the case, it is possible to have multiple. For example, in 2005, the Roman Catholic Archdiocese of Portland in Oregon was sued as part of the Catholic priest sex-abuse scandal. All parishioners of the Archdiocese's churches were cited as a defendant class. This was done to include their assets (local churches) in any settlement. Where both the plaintiffs and the defendants have been organized into court-approved classes, the action is called a bilateral class action.
[3] Standing or locus standi is the term for the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party's participation in the case.
[4] Joinder is the legal procedure whereby multiple parties who have the same rights or against whom rights are claimed are joined as co-plaintiffs/applicants or co-defendants/ respondents. Joinder can also refer to the combination in one lawsuit of two or more causes of action, or grounds of relief.
[5] See Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others (CCT5/95) [1995] ZACC 13; 1996 (1) SA 984 (CC); 1996 (1) BCLR 1 at para 146.
[6] Constitution of the Republic of South Africa Act 108 of 1996 (Constitution).
[7] Firstrand Bank Limited v Chaucer Republications (Pty) Limited and Another (12645/07) [2007] ZAWCHC 59; [2008] 2 All SA 544 (C); 2008 (2) SA 592 (C).
[8] 68 of 2008.
[9] 107 of 1998.
[10] Trustees for the time being of Children's Resource Centre Trust and Others v Pioneer Food (Pty) Ltd and Others (050/2012) [2012] ZASCA 182; 2013 (2) SA 213 (SCA); 2013 (3) BCLR 279 (SCA); [2013] 1 All SA 648 (SCA).
[11] See Mukaddam v Pioneer Foods (Pty) Ltd and Others (CCT 131/12) [2013] ZACC 23; 2013 (5) SA 89 (CC); 2013 (10) BCLR 1135 (CC).
[12] At para 35-36.
[13] Act 68 of 2008.
[14] See section 53 of the CPA.
