Class action certification and constitutional claims: The South African case

Abstract

This article considers whether, in the case of South African, there is a valid basis for requiring certification of certain types of class actions only. Specifically, the article will consider whether a preliminary certification requirement should apply to constitutional claims against the government in the same way it applies to other class actions. To determine this issue, the purpose of certification is considered with a view to establishing whether said purpose is only given effect to in certain circumstances. If certification would serve no purpose in the context of Bill of Rights claims or claims which display a public character, it may be prudent not to require class action certification in such cases. Conversely, if certification would still serve a purpose in those types of cases, it should remain part of class proceedings. To assist in making this determination, the position in several European jurisdictions, Ontario and the United States is considered.