Class Actions and Public Interest Litigation
Introduction
Class actions and public interest litigation are important mechanisms for accessing justice in South Africa, particularly for groups whose individual claims may be too small to justify separate proceedings. The Constitution’s generous standing provisions (section 38) and the courts’ development of the class action mechanism have expanded access to justice in constitutional and commercial matters.
Constitutional Standing
Section 38 of the Constitution provides broad standing in constitutional matters. Anyone may approach a court when a right in the Bill of Rights has been infringed or threatened. Standing is granted to persons acting in their own interest, on behalf of others who cannot act in their own name, as a member of a class, in the public interest, or as an association acting in the interest of its members.
Class Actions
The South African law of class actions has developed through judicial decisions. In Permanent Secretary, Department of Welfare, Eastern Cape v Ngxuza 2001 (4) SA 1184 (SCA), the Supreme Court of Appeal approved the class action mechanism for constitutional claims. The Constitutional Court in Children’s Resource Centre v Pioneer Food 2013 (3) SA 213 (SCA) addressed the requirements for class certification in commercial claims.
Certification Requirements
A class action requires certification by the court. The applicant must demonstrate: (1) a defined class; (2) a common issue of fact or law; (3) a cause of action; (4) suitable representation; and (5) that a class action is the appropriate means of adjudicating the claims. The court has discretion to grant or refuse certification.
Public Interest Litigation
Public interest litigation allows persons or organisations to litigate in the public interest without having a personal interest in the outcome. Public interest standing has been recognised in cases involving environmental protection, human rights, and administrative justice. Public interest litigants may be required to demonstrate that the matter raises a significant legal issue and that they have sufficient expertise.
Funding and Costs
Class actions and public interest litigation raise particular funding and costs issues. The courts have developed principles to ensure that class actions are adequately funded and that representative plaintiffs are not exposed to adverse costs orders. Third-party funding is permitted in class actions. The courts may make special costs orders to protect the interests of absent class members.
Conclusion
Class actions and public interest litigation have significantly expanded access to justice in South Africa. The constitutional standing provisions, the development of the class action mechanism, and the recognition of public interest standing reflect the Constitution’s commitment to ensuring that all persons can enforce their rights. The law continues to evolve, particularly in relation to the certification of class actions and the management of class proceedings.