Chapter 7 - Parties and Citations

Question 1

What is locus standi and what requirements must a plaintiff meet under South African common law to have standing in the court ?

Answer 1

• Locus standi refers to the legal capacity of a party to bring a matter before a court.
• Under South African common law, the plaintiff must have a direct and substantial interest in the subject matter of the litigation.

Question 2

Who may approach a court under Section 38 of the Constitution, and how does this expand the common law approach to standing ?

Answer 2

Section 38 of the Constitution broadens the common law approach by allowing the following parties to approach a court:

• Anyone acting in their own interest;
• Anyone acting on behalf of another who cannot act in their own name;
• Anyone acting as a member of or in the interest of a group or class of persons;
• Anyone acting in the public interest; and
• An association acting in the interest of its members.

Question 3

What is a class action ?

Answer 3

A class action (under Section 38(c)) enables a person to bring a claim on behalf of a group/class of persons with common legal or factual issues.

Question 4

What are the requirements for certification for a case to continue as a class action ?

Answer 4

• Is there an identifiable class?
• Is the cause of action known?
• Are there common issues of fact and/or law?
• Is there a suitable representative?
• Is there a legitimate legal interest in proceeding?
• Is the method of instituting the action appropriate?
• Can the issue be res judicata ?

Pioneer Foods case and SALRC.

Question 5

What did the court hold in Permanent Secretary, Department of Welfare, Eastern Cape v Ngxuza regarding the nature of class actions ?

Answer 5

• The SCA held that the most crucial feature of a class action is that members of the class, though not formally joined to the case, benefit from and are bound by the outcome.
• However, it questioned whether class actions could be used for ordinary (non-constitutional) matters, as that case dealt with constitutional rights violations.

Question 6

How did Trustees for the Time Being of the Children’s Resources Centre Trust v Pioneer Foods and Mukaddam v Pioneer Foods develop the law on class actions ?

Answer 6

• In Pioneer Foods, the SCA held that class actions are permissible even where no constitutional rights are implicated.
• In Mukaddam, the Constitutional Court endorsed this view, confirming that class actions could arise from the development of common law and must be embraced by courts

Question 7

What are the procedural requirements for certification set out by the Mukaddam case ?

Answer 7

• There must be a real legal issue (cause of action) that can be decided in court.
• This must be explained in a draft particulars of claim submitted with the application.
• The outcome must depend on facts or law that are shared by all class members.
• The class must be clearly defined, so people can know if they are part of it.
• The relief or damages asked for must come from the legal claim and must be measurable or determinable.
• If damages are claimed, there must be a fair procedure to divide them among the class members.
• The person or group leading the case must be fit to represent the class.
• A class action must be the best way to handle the matter, based on the size of the class and the nature of the claims.

Question 8

In Nkala v Harmony Gold Mining Co Ltd, what challenges and principles were discussed regarding class certification ?

Answer 8

• This was South Africa’s largest class action, involving mineworkers seeking damages for silicosis and tuberculosis.
• The court held that certification is still required even for Bill of Rights violations; not all class members must be determined before hearing evidence; a broadly defined class does not prevent certification; common issues need not outweigh non-common ones sufficiency is enough if it serves justice.

Question 9

What is public interest litigation under Section 38(d), and what are its key requirements ?

Answer 9

• Public interest litigation allows a party to bring action even without direct interest, on behalf of the public or a section thereof, usually to enforce constitutional rights.
• Two key requirements: the litigant must genuinely act in the public interest; the public must have a sufficient interest in the relief sought.