Department of Private Law

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Browsing Department of Private Law by Author "Broodryk, Theo"

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    Developing a structure for the adjudication of class actions in South Africa
    (Stellenbosch : Stellenbosch University, 2017-12) Broodryk, Theo; Du Plessis, Jacques; De Vos, Wouter
    ENGLISH ABSTRACT : This dissertation is concerned with class actions within the context of South African civil procedural law. There is currently no South African statute or court rule that provides a procedural framework for the institution and regulation of class actions. Our courts have been required to develop the appropriate class action procedural rules using their inherent jurisdiction as entrenched in section 173 of the Constitution of the Republic of South Africa, 1996. This was done in Trustees for the time being of the Children’s Resource Centre Trust v Pioneer Food (Pty) Ltd (Legal Resources Centre as amicus curiae) 2013 1 All SA 648 (SCA), which effectively details key aspects of the law relating to class actions in South Africa. However, various ambiguities, inconsistencies and problems remain. In this regard, South African case law on class action procedure has not yet been subjected to a comprehensive and critical analysis in order to provide answers to a number of vital questions. These include the following: i) when is a class action, as opposed to joinder, the appropriate procedural device to beutilised to adjudicate a claim and when is it appropriate to use the opt-in, as opposedto the opt-out, class action regime? , ii) when, if ever, should notice of a class action be given to class members and whenwould individual notice to each class member be required, or would some form ofgeneral notice to the class suffice?; iii) what is the approach that our courts should follow and what are the devices that theycould utilise to determine damages in personal injury class actions?; and, iv) how should a class action be managed and what should the role of the courts be inthis regard? Ultimately, the purpose of the dissertation is to assist in developing a structure that could facilitate the adjudication of class actions in South Africa. This inevitably entails interpreting the South African class action procedure as expounded by our courts and, given the novelty of the procedure, constantly seeking guidance from the class action regimes of prominent foreign jurisdictions, most notably Australia, Ontario and the United States.
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    Inappropriately assessing appropriateness of class proceedings : Nkala v Harmony Gold Mining Company Ltd
    (Taylor & Francis Group, 2022-01-11) Broodryk, Theo
    Nkala v Harmony Gold Mining Company Ltd (Treatment Action Campaign NPC and another as amici curiae)1 is the first South African mass personal injury class action. The latter is worth noting because a mass personal injury class action presents unique challenges compared to other types of class actions, such as consumer class proceedings. In a personal injury class action, the extent of the injuries and the quantum of damages suffered by each member are individual issues. One of the challenges present in mass personal injury class actions is that, if the class consists of a large number of victims and each victim is required to present oral evidence to prove his or her damages individually, the trial may take years to conclude, and some claimants could possibly pass away by the time the court delivers judgment. It would overburden proceedings and cause undue delay.2 These are some of the issues which, as will appear from this note, were influential in the court’s questionable approach to assessing appropriateness of class proceedings in Nkala. In Nkala, Bongani Nkala and 55 other individuals sought certification of a dispersed incident mass personal injury class action3 on behalf of mineworkers for damages arising from silicosis contracted by mineworkers through their employment on the mines.4 The South Gauteng High Court granted certification of the class action. This note considers the approach of the Court in Nkala in dealing with the issue of the appropriateness of class actions as a certification factor.5 It is argued that, contrary to the finding of Mojapelo DJP in Nkala, sufficient commonality does not necessarily render class proceedings appropriate. Although admittedly there is an overlap between the certification factors, to determine whether a class action is appropriate a court would need to consider other issues and not just whether a determination of commonality would advance the class action. It may be that there is sufficient commonality, but that class proceedings would nevertheless be otherwise inappropriate. The note concludes by finding that, notwithstanding the court’s erroneous approach to this issue, it nevertheless reached the correct conclusion in deciding the certify the class action.