Class action certification and constitutional claims: The South African case
| Date | 01 October 2020 |
| Author | Theo Broodryk |
| DOI | 10.1177/1023263X20949685 |
| Published date | 01 October 2020 |
| Subject Matter | Articles |
Article
Class action certification
and constitutional claims:
The South African case
Theo Broodryk*
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 certifi-
cation 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 certifi-
cation 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.
Keywords
Class action, certification, interests of justice, constitution, South Africa
1. Introduction
Although class actions were first recognized in the Interim Constitution of the Republic of South
Africa, 1993 (Interim Constitution),
1
it is an area of South African law that remains largely
unregulated by statute or court rules. Legislative inaction has compelled the judiciary to step in
and, through case law, to develop a structure for the adjudication of class actions.
2
South African
* Stellenbosch University, Stellenbosch Central, Stellenbosch, South Africa
Corresponding author:
Theo Broodryk, Stellenbosch University, Stellenbosch Central, Stellenbosch, 7602, South Africa.
E-mail: tbroodryk@sun.ac.za
1. Section 7(4)(b)(iv).
2. See Trustees for the time being of the Children’s Resource Centre Trust v. Pioneer Food (Pty) Ltd (Legal Resources
Centre as amicus curiae), 2013 1 All SA 648 (SCA), para. 15, where Wallis JA states as follows: ‘We are thus
Maastricht Journal of European and
Comparative Law
2020, Vol. 27(5) 636–659
ªThe Author(s) 2020
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/1023263X20949685
maastrichtjournal.sagepub.com
MJ
MJ
superior courts should be commended for developing the existing framework within which class
actions operate. The role that the courts have played in this regard is important, especially in view
of the increase in recent times in the incidence of class actions.
3
South African courts have developed the appropriate class action procedural framework using
their inherent jurisdiction as entrenched in section 173 of the Constitution of the Republic of South
Africa, 1996 (Constitution). This was done in Trustees for the time being of the Children’s
Resource Centre Trust v. Pioneer Food (Pty) Ltd (Legal Resources Centre as amicus curiae),
4
which effectively details key aspects of the law relating to class actions in South Africa. The case
of Mukaddam v. Pioneer Foods (Pty) Ltd
5
also created important judicial precedent regarding the
South African class action mechanism.
At present, the framework within which class actions operate is mainly based on case law.
Courts appear to be developing the procedural framework regulating class actions, and addressing
problems that arise in class proceedings, on an ad hoc, case-by-case, basis. Such an approach,
although it has been necessitated by legislative inaction, is neither preferable nor desirable. It does
not lend itself to creating legal certainty or judicial consistency and uniformity.
6
Section 38(c) of the Constitution provides as follows:
38. Enforcement of rights – Anyone listed in this section has the right to approach a competent court,
alleging that a right in the Bill of Rights has been infringed or threatened, and the court may grant
appropriate relief, includinga declaration of rights. The persons who may approach a court are– ...(c)
anyone acting as a member of, or in the interest of, a group or class of persons ...;
Section 38(c) clearly makes provision for class actions within the confines of the Constitution.
This means that class action proceedings instituted in terms of section 38 may only be used to
enforce rights entrenched in the Bill of Rights. This is the case even in the absence of legislation
and court rules that regulate cl ass actions in South Africa. The Supreme Court of Appeal in
Permanent Secretary, Department of Welfare, Eastern Cape v. Ngxuza
7
confirmed that, notwith-
standing the absence of class action legislation and court rules, it is possible to use class proceed-
ings to enforce constitutional rights.
confronted with a situation where the class action is given express constitutional recognition, but nothing has been done
to regulate it. The courts must therefore address the issue in the exercise of their inherent power to protect and regulate
their own process and to develop the common law in the interests of justice’.
3. According to T. Broodryk, ‘An Empirical Analysis of Class Actions in South Africa’, 24 Law, Democracy and
Development (2020), p. 73: ‘if one compares the number of cases between 2000 and 2012 and the number of cases
between 2013 and 2019, it becomes apparent that there was a significant (300 per cent) increase in the incidence of class
actions from the first 13-year period to the next seven-year period’.
4. Trustees for the time being of the Children’s Resource Centre Trust v. Pioneer Food (Pty) Ltd. (Legal Resources Centre
as amicus curiae), 2013 1 All SA 648 (SCA).
5. Mukaddam v. Pioneer Foods (Pty) Ltd., 2013 10 BCLR 1135 (CC). The decision of the Supreme Court of Appeal is
reported as follows: Mukaddam v. Pioneer Foods (Pty) Ltd., 2013 2 SA 254 (SCA).
6. Consider, for example, the different conclusions reached in the Mukaddam Supreme Court of Appeal and Constitutional
Court judgments regarding whether the existence of exceptional circumstances is indeed a requirement before the opt-in
class action mechanism may be utilized.
7. Permanent Secretary, Department of Welfare, Eastern Cape v. Ngxuza, 2001 4 SA 1184 (SCA). Unlike, for example,
rule 23 of the American Federal Rules of Civil Procedure, section 38 of the Constitution does not contain a procedural
framework in terms of which a class action is to be conducted.
Broodryk 637
To continue reading
Request your trial