Does prior certification advance access to justice?

Abstract

Class actions advance both access to justice and judicial economy. In South Africa, class action law is developing incrementally in the courts. One aspect of class action procedure that is settled is that prior certification is a requirement. Prior certification requires class representatives to satisfy a court that the use of the class action mechanism is an appropriate way of adjudicating the class members’ claims. As such, prior certification is a preliminary procedural hurdle to be cleared before the class action can be instituted. The primary rationale for prior certification is that it prevents the inappropriate use or abuse of the class action mechanism. However, by postponing the institution of the class action, prior certification delays the determination of the class action claims, thereby limiting access to justice. This article analyses the adoption of prior certification in class action litigation procedure. It interrogates whether the way in which prior certification limits access to justice is reasonable and justifiable. It argues that the temporary limit that prior certification places on access to justice is a reasonable and justifiable limitation because it balances the protection of access to justice with the need to prevent misuse of the class action mechanism.