M.Kriel
Civil Procedure
SIP 400
Acknowledgement of sources:
These notes were composed based on:
Prof T Bekker, Lecturer in the Department of Procedural law, University of
Pretoria, SIP 400 (civil procedure) 2020. Slides and class notes and explanatory
notes.
SIP 400 Study Guide (2020) (University of Pretoria)
Theophilopoulos C et al Fundamental principles of civil procedure (2015 3rd
edition) Lexis Nexis.
Please note:
These notes shall not be shared without the express consent of the author of these
notes.
1
,M.Kriel
Theme 5: Chapter 7
1. Class actions and public interest actions: [must be able to discuss the
development of class actions in the South African law (10 marks)]
- Section 38 (c) and (d) introduced the notion of a class action in general
litigation and a similar public-interest action into South African law.
- Section 38 (c) -class action = A device by which a single plaintiff may
pursue an action on behalf of all persons with a common interest in the
subject matter at the suit.
South African Law Reform Commission lists the following question
to be answered in order to determine whether it is a class action or
not.
is there an identifiable class?
is the cause of action known?
is there a commonality of legal and factual issues?
is there a suitable representative?
is it of legal importance to institute the action?
is there a suitable method to institute the action?
is it possible to plead res judicata at the conclusion of the
matter.
The superior courts developed rules in this regard in the absence of
legislation and specific rules of court.
This principle, and the determination of the process to be
followed when litigants approach courts were confirmed by
the Constitutional Court within the ambit of the class action.
2
, M.Kriel
Ngxuza-case held that the most important characteristics of a class
action is whether other members of the class, although not formally
and individually joined, benefit from, and are bound by, the outcome
of the litigation.
However, it was not clear whether the Ngxuza case created a
general class-action suit in matters where reliance is placed
on rights other than those contained in the BoR as such –
matters susceptible for ordinary litigation in other words.
Trustee for the Time Being of the Children’s Resources centre
Trust and others V Pioneer Food (Pty) Ltd and Other (Pioneer
Food case) accepted that the class may be utilised in ordinary
litigation and where the claims are not based on the basic right
infringement as such.
The court then continued to give guidance on the procedure
to be followed in such a matter in order to obtain court
certification to proceed with such an action.
The court thus further developed this form of litigation in
South Africa.
The court seemingly prepared to allow basis for a class action
even outside the strict paraments of the BoR on an
infringement of section 27 of the BoR.
Their rights to access to the courts i.t.o section 34 of the BoR,
by allowing them to proceed by way of class action, were also
considered.
In this respect, the court stated clearly that where a group of
claimants have relatively small claim of any nature, but they
are unable to pursue these claims by ordinary means due to
cost of litigation, their section 34 rights would be infringed if
they are not allowed to use a class action in terms of section
38 (c) of the C to prove and enforce their rights.
3
Civil Procedure
SIP 400
Acknowledgement of sources:
These notes were composed based on:
Prof T Bekker, Lecturer in the Department of Procedural law, University of
Pretoria, SIP 400 (civil procedure) 2020. Slides and class notes and explanatory
notes.
SIP 400 Study Guide (2020) (University of Pretoria)
Theophilopoulos C et al Fundamental principles of civil procedure (2015 3rd
edition) Lexis Nexis.
Please note:
These notes shall not be shared without the express consent of the author of these
notes.
1
,M.Kriel
Theme 5: Chapter 7
1. Class actions and public interest actions: [must be able to discuss the
development of class actions in the South African law (10 marks)]
- Section 38 (c) and (d) introduced the notion of a class action in general
litigation and a similar public-interest action into South African law.
- Section 38 (c) -class action = A device by which a single plaintiff may
pursue an action on behalf of all persons with a common interest in the
subject matter at the suit.
South African Law Reform Commission lists the following question
to be answered in order to determine whether it is a class action or
not.
is there an identifiable class?
is the cause of action known?
is there a commonality of legal and factual issues?
is there a suitable representative?
is it of legal importance to institute the action?
is there a suitable method to institute the action?
is it possible to plead res judicata at the conclusion of the
matter.
The superior courts developed rules in this regard in the absence of
legislation and specific rules of court.
This principle, and the determination of the process to be
followed when litigants approach courts were confirmed by
the Constitutional Court within the ambit of the class action.
2
, M.Kriel
Ngxuza-case held that the most important characteristics of a class
action is whether other members of the class, although not formally
and individually joined, benefit from, and are bound by, the outcome
of the litigation.
However, it was not clear whether the Ngxuza case created a
general class-action suit in matters where reliance is placed
on rights other than those contained in the BoR as such –
matters susceptible for ordinary litigation in other words.
Trustee for the Time Being of the Children’s Resources centre
Trust and others V Pioneer Food (Pty) Ltd and Other (Pioneer
Food case) accepted that the class may be utilised in ordinary
litigation and where the claims are not based on the basic right
infringement as such.
The court then continued to give guidance on the procedure
to be followed in such a matter in order to obtain court
certification to proceed with such an action.
The court thus further developed this form of litigation in
South Africa.
The court seemingly prepared to allow basis for a class action
even outside the strict paraments of the BoR on an
infringement of section 27 of the BoR.
Their rights to access to the courts i.t.o section 34 of the BoR,
by allowing them to proceed by way of class action, were also
considered.
In this respect, the court stated clearly that where a group of
claimants have relatively small claim of any nature, but they
are unable to pursue these claims by ordinary means due to
cost of litigation, their section 34 rights would be infringed if
they are not allowed to use a class action in terms of section
38 (c) of the C to prove and enforce their rights.
3
