Abstract
ABSTRACT As far as the author is aware, there has not been an empirical analysis of class actions in South Africa since the introduction of the mechanism by the interim Constitution of 1993 more than 25 years ago. There is no publicly available data which provides meaningful empirical insight into the operation of the South African class action. There is consequently much that we do not know about it. This article attempts to examine class actions over a period spanning more than 19 years. The purpose of the article will be to provide, through an analysis of case law, an empirical exposition of class actions instituted in South Africa using the criteria and methodology mentioned below. The study demonstrates that, although there have been only a limited number of certification judgments delivered to date, there has been rapid growth in the number of certification judgments delivered in the past five years. Most of these judgments are aimed at providing access to justice for poor and marginalised individuals. The data presented herein could place South Africa in the fortuitous position of being able to build a comprehensive data archive in which the class action is statistically dissected. Without comprehensive data concerning the operation of the class action, the available information will be insufficient from the perspective of providing adequate insight to enable its optimal development going forward. Keywords: Class action; empirical data; access to justice; certification; opt-in; opt-out; bifurcation; settlement
Highlights
The lack of empirical data regarding the South African civil justice landscape is disconcerting
2 CRITERIA, PURPOSE AND METHODOLOGY The legal research conducted for the purpose of this study sought to identify case law that meets the following criteria: cases where a South African superior court, sitting as a court of first instance, made a definitive pronouncement4 on whether a matter could proceed5 as a class action6 and where it is clear from the judgment that the applicant(s)
15 cases were identified where a South African superior court, sitting as a court of first instance, made a definitive pronouncement on whether the matter could proceed as a class action, and where it is clear from the judgment or order that the applicant(s) intended to frame the matter as a class action
Summary
The lack of empirical data regarding the South African civil justice landscape is disconcerting. The legal research conducted for the purpose of this study sought to identify case law that meets the following criteria: cases where a South African superior court, sitting as a court of first instance, made a definitive pronouncement on whether a matter could proceed as a class action and where it is clear from the judgment that the applicant(s). Cases where a South African superior court, sitting as a court of first instance, made a definitive pronouncement on whether a matter could proceed as a class action and where it is clear from the judgment or order that the applicant(s) intended to frame the matter as a class action. I) The cases in respect of which judgments on appeal have been given in relation to the courts’ pronouncements regarding whether a matter could proceed as a class action. The search produced 15 results in the form of case law which meet the criteria and which form part of this study.
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