Giving notice to members of opt-out class actions
CITATION: Broodryk, T. 2017. Giving notice to members of opt-out class actions. Journal of South African Law / Tydskrif vir die Suid-Afrikaanse Reg, 2017(3):498-510.
The original publication is available at https://journals.co.za/content/journal/jlc_tsar
This article 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), 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 subject to a comprehensive and critical analysis in order to clarify when individual notice of the opt-out class action to each class member would be required, or whether some form of general notice to the class would suffice. Notice to class members in class-action proceedings is important in various respects. Most significantly, it informs class members of the class action so that they are in a position to choose to participate in the class action. Notification at a later stage, after the trial has commenced, may also be required, for example, as the court may direct. The issue of notice is also important in the light of the audi alteram partem principle and the doctrine of res judicata. Apart from being an important issue, notice is also very complicated, especially in circumstances where the class is large, and it comprises individuals who are poor, illiterate and often without access to the resources that are required to bring the action to their attention. The method employed in giving notice and the accompanying costs could raise complex issues that may even threaten the continuation of a class action.