Development of class action litigation in South Africa : a comparative study

Abstract

This study investigates how the certification of class action litigation has evolved and became increasingly difficult in South Africa, particularly since the 1996 Constitution acknowledged class action litigation. The legal framework governing class action is entrenched in the Bill of Rights of the Constitution, with special focus paid in section 38(c), which permits legal practitioners to advocate for collective claims when the Bill of Rights claims are violated. The need of the designated class, common legal challenges, and the guiding principle of the interests of justice constitutes some of the key requirements for class action certification which are highlighted. While the interests of justice principle were incorporated to help facilitated certification, it has led to great confusion and uncertainty because the courts have inadequately defined what it means and its limitations, allowing presiding officers a great deal of discretion. This lack of clarity makes it more difficult for plaintiff to obtain legal representation and generates questions about fair access to the courts. Employing a comparative approach, this study will analyze class action laws in the USA and Quebec to find best guidelines that might guide the legal system in South Africa. The developmental history of class action litigation in South Africa opens up the study, which is divided into six chapters. A comparison and contrast of international models, an in-depth review of policy considerations and suggestions for legal reform to enhance the effectiveness and certainty of class action litigation in South Africa round out the study.