Class Action Litigation in South Africa

February 1st, 2018

By Max du Plessis, John Oxenham,

Isabel Goodman, Luke Kelly and

Sarah Pudifin-Jones (eds)

Cape Town: Juta

(2017) 1st edition

Price R 435 (incl VAT)

272 pages (soft cover)

 ‘The class action, an established feature in many common-law jurisdictions, has finally found a home in South African law.’ With these words the authors introduce a book that is the first comprehensive treatment of class actions in South African law. As Supreme Court of Appeal Justice Malcolm Wallis remarks in the foreword, the Law Commission considered class actions, recommended the introduction thereof and drafted a bill, but Parliament has allowed it to gather dust. It thus fell on our courts to introduce class actions in practice. The aim of the book, as set out by Max du Plessis in ch 1, is to:

  • dissect and discuss the early class action judgments;
  • provide practical guidance in relation to questions associated with its implementation from judicial, procedural, economic and social perspectives; and
  • offer the reader first-hand exposure to lessons learned, both locally and internationally.

I dare say that these goals have been met.

The book is a collaboration by more than 20 authors, which include insights from legal practitioners who have been involved in the landmark cases discussed in the book, as well as other practitioners well-positioned to engage with the topic. A number of contributors are from jurisdictions where class actions have a longer history, offering insight into lessons learnt there. Overall the book is very accessible to the reader, and care has been taken to harmonise different styles across the entire text.

A lot of ground is covered in this book. Chapter 2 deals with the certification process, while ch 3 considers potential causes of action and how they could be dealt with in the context of a class action. No book on this topic will be complete unless it deals with class action within the context of the Bill of Rights, and ch 4 does this topic justice. Apart from practical and procedural aspects of litigating the class action (ch 8), other important aspects are also canvassed in detail, namely, settlement (ch 5), the ways and means of distributing monetary awards (ch 6) and the costs involved in and the funding of class actions (ch 7).

The latter part of the book (chs 9 to 13) takes a closer look at class action litigation in a number of jurisdictions, which include, Australia, Canada, the United States and the United Kingdom. It also considers developments in Europe. Most of these chapters conclude with a summary of lessons that we can learn from the experience in the particular jurisdiction.

If there was to be a criticism of the book, it would be that it does not contain a bibliography. This would hopefully be corrected in the inevitable second edition.

The need for this publication cannot be doubted. The foresight of the editors and contributors to present an early contribution to the development of this area of the law is to be commended. There is still some distance to travel to a well worked out and smooth-running procedural framework for class actions in South Africa (SA). As pointed out in various chapters of the book, the earlier cases have in some instances identified more questions than answers.  This work will go a long way in assisting those who will shape the future of class actions in SA in their thinking.

No lawyer involved in litigation or teaching law can afford not to be familiar with the terrain of class action litigation. This book provides the necessary guidance, and is a hard act to follow.

Andy Bester is an advocate at the Johannesburg Bar.

This article was first published in De Rebus in 2018 (Jan/Feb) DR 52.