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• Class Actions And Public Interest Actions Defined
• 2.1 Introduction
• 2.2 What Is A Public Interest Action?
• 2.3 What Is A Class Action?
• 2.4 The Differences Between A Class Action And A Public Interest Action
• 2.5 The Defendant Class Action
• 2.6 Conclusion

CHAPTER 2

CLASS ACTIONS AND PUBLIC INTEREST ACTIONS DEFINED

2.1 Introduction

2.1.1 This Chapter introduces the concepts of “class action” and “public interest action” and gives some practical examples to illustrate the need for these actions in South African law. The defendant class action is also dealt with.

2.2 What is a public interest action?

2.2.1 A public interest action is one brought by a plaintiff who, in claiming the relief he or she seeks, is moved by a desire to benefit the public at large or a segment of the public.^[20] The intention of the plaintiff is to vindicate or protect the public interest, not his or her own interest, although he or she may incidentally achieve that end as well.

2.2.2 The treatment of animals (involving practices such as vivisection; badly run circuses, zoos or rodeos; dog racing, dog or cock fighting), environmental issues and other matters call out for public interest actions.^[21] On current tests for standing, a sufficient and direct interest is required by any person desirous of preventing such practices. Such persons may be hard to find.

2.3 What is a class action?

2.3.1 The class action is a device by which a single plaintiff may pursue an action on behalf of all persons with a common interest in the subject matter of the suit. The ruling of the court will bind all class members. This is perceived as a means of fostering both judicial economy and social utility - the courts will no longer be inundated with numerous claims relating to a common subject matter, and individual plaintiffs with claims too small for individual pursuit are provided access to the courts. Class actions can also serve an effective enforcement function, especially in the areas of civil rights, environmental law and consumer claims.

2.3.2 Take a bus or taxi accident as example. Under current practice, each and every injured person or his or her dependants can institute a separate action for damages against the negligent party. Where only two or three claimants are involved, joinder may be appropriate. More frequently, however, the individual actions are brought separately and on a piece-meal basis. Should one of the individual actions be successful, the remainder of the claimants can follow in its wake by relying on the stare decisis doctrine. It therefore happens that numerous actions flow from the same, single event. In this example, all the plaintiffs could have brought a single class action and could have achieved the same (or even better) result.

2.4 The differences between a class action and a public interest action

2.4.1 In the Working Paper the Commission argued that class actions and public interest actions are two different but not mutually exclusive procedures.^[22] There is no absolute dividing line between these two procedures and they overlap to some extent. In cases involving civil rights, consumer interests and environmental protection issues may be of such public importance that, although the interests of the class or group are at stake, the public interest also comes into play. In such an event either a class action or a public interest action can be instituted.^[23]

2.4.2 The Honourable Mr Justice B R du Plessis, with whom Judge President C F Eloff concurs, convincingly argues that the distinction between a class action and a public interest action should be maintained. Mr P J Conradie of Hofmeyr Attorneys, however, submits that the same arguments used with regard to the certification of class actions are also valid with regard to public interest actions. He recommends that certification of public interest actions should also be by way of application, with notice to all interested parties, which will give parties or persons wanting to oppose the certification sufficient opportunity to do so. The Commission is not convinced that such a step will facilitate access to justice.

2.4.3 In our opinion, the differences^[24] between a class action and a public interest action are the following:

2.4.4 Accordingly we recommend:

2. Class actions and actions in the public interest should be treated as two separate and distinct procedures. The two procedures serve different purposes and have to comply with different requirements. The essential difference between a class action and a public interest action is that the judgment given in a class action binds all the members of the class and may, therefore, be pleaded as res judicata against the members of the class. The judgment in a public interest action does not bound the people in whose interest it is brought.

2.5 The defendant class action

2.5.1 Put simply, a defendant class action is the reverse of a plaintiff class action. Instead of a person or persons asserting a claim on behalf of many individuals, in a defendant class action one or more persons is designated to defend on behalf of many. Essentially, defendant class actions can be divided into two main categories, namely, suits against unincorporated associations, such as trade unions or clubs, and suits against a large number of individuals who have no pre-existing relationship and who are alleged to have committed in common some wrong.

2.5.2 The jurisprudence in Anglo-Canadian jurisdictions has been concerned almost exclusively with the first category, suits against unincorporated associations. Undoubtedly one of the major reasons for this fact is that in many of these jurisdictions unincorporated associations have no legal status, and the rules of practice do not authorise the commencement of an action against an unincorporated association in its own name.^[25]

2.5.3 In Ontario, the courts have adopted a different attitude toward defendant class actions involving unincorporated associations, focussing on the existence or non-existence of a "common fund" that could be used to satisfy a judgment against the class. Only if the unincorporated association can be said to have a common fund or "trust fund" will the defendant class action be allowed; in the absence of such a fund, the court will not authorise a defendant class action under Rule 75 of the Supreme Court of Ontario Rules of Practice.^[26]

2.5.4 As indicated, the second category of defendant class actions involves suits against a large number of individuals who have no pre-existing relationship, but who are sued for some wrong that, it is alleged, they have committed in common. This type of defendant class action has received very little attention in the Anglo-Canadian cases or literature. It has received more attention in American cases and literature, although considerably less than that accorded to plaintiff class actions.

2.5.5 In the United States, defendant class actions brought in the federal courts are authorised by Rule 23(a) of the Federal Rules of Civil Procedure,^[27] although the Rule contains no specific provisions governing defendant class actions. Reported cases indicate that defendant class actions have been used in a variety of contexts,^[28] patent infringement cases and suits against public officials challenging the validity of state law apparently being the most typical.^[29] Courts have also found defendant class actions to be appropriate with some frequency in antitrust, securities, and environmental suits.

2.5.6 The recent spate of "flat rate" cases^[30] and the decision of the SABC to issue summonses against those who refuse to pay their TV licences illustrate the need and practical use of a defendant class action.

2.5.7 Although defendant class actions are not dealt with explicitly in the Working Paper, section 3(3)(c) of the draft bill includes a reference to "defences". To make our intention clear, the draft bill should state that it is possible to institute or defend an action as a class action.

2.6 Conclusion

2.6.1 Class actions and public interest actions are two different but not mutually exclusive procedures. Although there is no absolute dividing line between these two procedures, a clear distinction must be maintained. It is therefore imperative to define both concepts.

^[20] Homburger 1974 (23) Buffalo Law Review 387; Loots 1987 (104) SALJ 132.

[21] See also Society for the Prevention of Cruelty to Animals, Standerton v Nel 1988 4 SA 42 (W); Wildlife Society of Southern Africa v Minister of Environmental Affairs and Tourism 1996 3 SA 1095 (TkSC). See further R v Inspectorate of Pollution; ex parte Greenpeace Ltd (No. 2) [1994] 4 All ER 329 (QB).

[22] See paragraphs 2.1, 3.1 and 6.15 of Working Paper 57.

^[23] De Vos LLM thesis 45 -46. See also De Vos 1996 (4) Journal of South African Law 640; Homburger 1974 (23) Buffalo Law Review 387 - 388.

^[24] See also De Vos 1996 (4) Journal of South African Law 640.

^[25] The Commission recently included an investigation into the legal position of voluntary associations in its programme.

^[26] Ontario Commission Report on Class Actions 42.

^[27] Rule 23(a) states: "One or more members of a class may sue or be sued ... " (emphasis added).

^[28] Wolfson 1977 (38) Ohio State Law Journal 459.

^[29] Editorial 1978 (91) Harvard Law Review 632.

^[30] See paragraph 3.4.6 et seq below for a discussion of some of these cases.