Class action lawsuits In South Africa – Next steps in the Listeriosis saga?

The recent outbreak of Listeriosis has affected many families in South Africa, yet there are still many questions surrounding the potential class action litigation currently looming and the next steps to be taken therein.

A class action typically involves a large number of people who collectively band together to sue a person or company for damages. Bill Marler, an attorney in the United States commented on the steps towards class actions for the people and/or families affected by the outbreak. He specifically mentioned that it would be particularly difficult to employ the class action process for the current outbreak in view of the variety of damages are so different for all the people affected in the 967 verified cases.

There is no statutory definition of a class action that defines the nature of, nor the requirements for a class action suit. The procedure for handling class actions in South Africa is still somewhat in a developmental stage as South Africa has not as yet promulgated class action legislation. It is noted that the South African common law does not recognize class actions and prior to 1994, a class action was deemed foreign to South African law.

Judgments, however, handed down by the Supreme Court of Appeal (“SCA”) and the Constitutional Court has resulted in significant jurisprudential developments of class actions in South Africa.

In recent years, the SCA in the matter of Children’s Resources Centre Trust v Pioneer Foods (Pty) Ltd and Others 2013 (2) SA213 (SCA) provided the first necessary stepping stone herein. It has since been accepted that class actions may be instituted in South Africa, however, such actions must be certified by the Court (by way of separate application) in order for said matter to be deemed actionable by the affected class of persons.

The SCA has accordingly delineated the certification requirements for the which governs the establishment of a class action suit, namely:

1. There must be an existence of class identifiable by objective criteria;
2. The cause of action must raise a triable issue, common to members of the class;
3. The relief or damages sought must flow from the common cause of action and must be ascertainable and capable of determination;
4. There is an appropriate procedure to allocate damages to class members;
5. A proposed representative is deemed suitable by all affected persons to conduct the action and to represent the class;
6. The class action has appropriate means to determine the class members’ claims in light of composition of the class and nature if the proposed action.

The latest development is that the Constitutional Court in Mukaddan v Pioneer Foods (Pty) Ltd. and Others 2013(5) SA89 (CC) did not accept that the factors identified by the Supreme Court of Appeal in the Children’s Resources Centre Trust case are requirements that have to be satisfied before a class action may be certified.

The Constitutional Court highlighted that the aforesaid requirements must not be treated as conditions precedent or jurisdictional facts which must be present before an application for certification may succeed. The aforesaid requirements are to rather to serve as factors to be taken into account in determining where the interests of justice lie in a particular case.

Although no notifications have been sent to the Companies involved, it can be presumed that a class action suit may be launched in the coming weeks

Prepared by:

Ashley Adriaans | Director | Dispute Resolution: Litigation & Arbitration

Lauren Barnard | Candidate Attorney

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)