A class action is quite common in other parts of the world and until recently South African courts haven’t properly addressed the issue. This has all changed with the Transnet class action, South Africa’s first and largest suit of its kind.
A brief look at the South African Class Action History
In June 2013, the Constitutional Court in Mukaddam v Pioneer Foods set out guidelines on the correct procedure to follow for applicants who want to certify a class that they seek to represent, before they institute a class action. The court accepted the test for certification laid down by the Supreme Court of Appeal on November 2012 in Children’s Resource Centre Trust v Pioneer Food.
If you want to certify a class to institute a class action:
- You must have identifiable members. You must be able to identify the class objectively and with precision;
- You must have a cause of action which raises an issue that can be go to trial. In the case of a novel claim (for example, a claim based on delict), you are required to sufficiently show that a new claim must be recognised when policy issues are taken into account;
- Various claims by members of the class must raise common issues of fact or law. You would determine commonality by deciding on a single ground common to all claims; and
- A representative in whose name a class action would be brought must be identified. Your interest may not be in conflict with the members of the class. The representative must have the capacity to prosecute the class action, including the funds necessary for litigation.
The Constitutional Court Guidelines
The Constitutional Court specifically pointed out that the certification criteria were merely guidelines and factors to take into account when deciding whether to certify a class. The primary consideration is what is in the interests of justice in a particular case. The Court also stated that the certification criteria is a tool to help determine what the interests of justice are in a particular case. This decision and the subsequent Premier Foods decision opened up class actions for civil damages in South Africa.
That brings us to the recent Transnet case. Former employees of Transnet have accused it of mismanaging its retirement funds to the extent that members’ benefits were reduced significantly.
On 31 July 2014, the Pretoria High Court granted two Transnet pensioners the permission to launch a class action on behalf of 65 000 former Transnet employees. Not only is this the biggest class action suit but the first of its kind in South Africa. The Supreme Court of Appeal recently dismissed Transnet’s application for leave to appeal against the High Court judgment, on the grounds that the appeal had no reasonable prospects of success. As of February this year, the pensioners continue to prepare for the class action.
How does this affect your privacy?
Parliament has made it possible for class actions suits to be instituted through the Protection of Personal Information Act (POPI). A data subject or the Information Regulator can institute a civil action for damages against a responsible party for not protecting a data subject’s personal information. Whether the responsible party acted intentionally or negligently in not protecting the personal information is irrelevant. So there is a strong possibility that a group of data subjects whose personal information has not been lawfully protected, can form a class to sue a responsible party for civil damages.
The outcome of Transnet will impact how South Africa deals with all class actions in the future.