Children's Resource Centre Trust and Others v Pioneer Food (Pty) Ltd and Others

• Jurisdiction: South Africa
• Citation: 2013 (2) SA 213 (SCA)

Children's Resource Centre Trust and Others v Pioneer Food (Pty) Ltd and Others
2013 (2) SA 213 (SCA)

2013 (2) SA p213

Citation	2013 (2) SA 213 (SCA)
Case No	050/2012; [2012] ZASCA 182
Court	Supreme Court of Appeal
Judge	Nugent JA, Ponnan JA, Malan JA, Tshiqi JA and Wallis JA
Heard	November 7, 2012
Judgment	November 29, 2012
Counsel	WH van der Linde SC (with S Budlender and M le Roux) for the appellants, the heads of argument having been prepared by W Trengove SC with Mr Budlender and Ms Le Roux.; SF Burger SC (with JPV McNally SC and JA Cassette) for the first respondent.; J Dickerson SC (with M O'Sullivan and R Garland) for the second respondent.; D Unterhalter SC (with M du Plessis and I Goodman) for the third respondent.; T Ngcukaitobi for the amicus curiae, the heads of argument having been prepared by G Budlender SC with Mr Ngcukaitobi.

Flynote : Sleutelwoorde E

Practice — Class action — Availability — Such available in cases not involving F constitutional rights.

Practice — Class action — Requirements — Party seeking to represent class must apply to court for it to certify action as class action — Court must be satisfied: (1) of existence of class identifiable by objective criteria; (2) of existence of cause of action raising triable issue; (3) that there are issues G of fact, or law, or fact and law, common to members of class; (4) that relief or damages sought flow from cause of action and are ascertainable and capable of determination; (5) that there is an appropriate procedure to allocate damages to class members; (6) that proposed representative suitable to conduct action and to represent class; and (7) that class action most appropriate means to determine class members' claims, in light of composition of class and nature of proposed action. H

Headnote : Kopnota

This case concerns when a class action may be brought and its requirements. (Paragraphs [1] and [13] at 217C – F and 222A – F.)

A class action is one where a party brings an action on behalf of a class of persons, each member of which is bound by the action's outcome. Such an action is I available where a constitutional or a non-constitutional right is involved. (Paragraphs [16] and [21] at 224A/B – E and 226A – D.)

Requirements for class action

Certification

The party seeking to represent a class must apply to a court for it to certify the action as a class action. Thereafter it may issue summons. The court faced J

2013 (2) SA p214

A with the application need consider and be satisfied of the presence of the following factors, before certifying the action —

(1)

the existence of a class identifiable by objective criteria;

(2)

a cause of action raising a triable issue;

(3)

that the right to relief depends on the determination of issues of fact, or B law, or both, common to all members of the class;

(4)

that the relief sought, or damages claimed, flow from the cause of action and are ascertainable and capable of determination;

(5)

that where the claim is for damages, there is an appropriate procedure for allocating the damages to the class members;

(6)

that the proposed representative is suitable to conduct the action and to represent the class;

(7)

C whether, given the composition of the class and the nature of the proposed action, a class action is the most appropriate means of determining the claims of class members. (Paragraphs [23], [26] and [28] at 226H – 227B, 228B – E and 229C – E.)

Class definition

D The applicant for certification must define the class with enough precision for a class member to be identified at all stages of the proceedings. (Paragraphs [29] and [34] at 229E – H and 231F – G.)

A cause of action that raises a triable issue

The applicant must show a cause of action with a basis in law and the evidence. That is, the claim must be legally tenable, and there needs to be evidence E of a prima facie case. (Paragraphs [35] – [36] and [38] – [42] at 232A – E and 233B – 236B.)

The procedure to be adopted in an application for certification

The application must be accompanied by draft particulars of claim setting out the cause of action, the class, and the relief sought. The affidavits need to F set out the evidence available to support the cause, as well as evidence it is anticipated will become available, and the way it will be procured. (Paragraph [43] at 236A/B – F.)

Common issues of fact or law

There must be issues of fact, or law, or fact and law, common to all members of the class, and which are determinable in one action. (Paragraphs [44] – [45] at 236F – 237D.) G

The representative plaintiff and his lawyers

The representative plaintiff may be a member of the class or a person acting in its interest. This applies both to class actions based on a constitutional right and to other class actions. The representative's interests cannot conflict H with those of the class members; and he must also have the capacity to properly conduct the litigation. The capacity requirement entails the ability to procure evidence, to finance the litigation and to access lawyers. The payment arrangement with the lawyers need also be disclosed, and cannot give rise to a conflict of interest of the lawyers and the class members. (Paragraphs [46] – [48] at 237D/E – 238D.)

Cases Considered

Annotations: I

Case law

Southern Africa

Agri Wire (Pty) Ltd and Another v Commissioner of the Competition Commission and Others [2012] 4 All SA 365 (SCA) ([2012] ZASCA 134): referred to

Axiam Holdings Ltd v Deloitte & Touche 2006 (1) SA 237 (SCA) ([2005] 4 All SA 157): J referred to

2013 (2) SA p215

Dabelstein and Others v Lane and Fey NNO 2001 (1) SA 1222 (SCA): A referred to

Dave Zick Timbers (Pty) Ltd v Progress Steamship Co Ltd 1974 (4) SA 381 (D): referred to

FirstRand Bank Ltd v Chaucer Publications (Pty) Ltd 2008 (2) SA 592 (C): referred to

Fose v Minister of Safety and Security 1997 (3) SA 786 (CC) (1997 (7) BCLR 851; [1997] ZACC 6): B referred to

Fourway Haulage SA (Pty) Ltd v SA National Roads Agency Ltd 2009 (2) SA 150 (SCA): referred to

Hülse-Reutter and Others v Gödde 2001 (4) SA 1336 (SCA) ([2002] 2 All SA 211): referred to

IGI Insurance Co Ltd v Madasa 1995 (1) SA 144 (TkA): referred to C

Minister of Law and Order v Kadir 1995 (1) SA 303 (A): referred to

Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA) ([2002] 3 All SA 741): referred to

Modderfontein Squatters, Greater Benoni City Council v Modderklip Boerdery (Pty) Ltd (Agri SA and Legal Resources Centre, Amici Curiae); President of the Republic of South Africa and Others v Modderklip Boerdery (Pty) Ltd D (Agri SA and Legal Resources Centre, Amici Curiae) 2004 (6) SA 40 (SCA) (2004 (8) BCLR 821; [2004] 3 All SA 169): referred to

MV Pasquale Della Gatta; MV Filippo Lembo; Imperial Marine Co v Deiulemar Compagnia Di Navigazione Spa 2012 (1) SA 58 (SCA): referred to

Ngxuza and Others v Permanent Secretary, Department of Welfare, Eastern Cape, and Another E 2001 (2) SA 609 (E) (2000 (12) BCLR 1322): referred to

Olitzki Property Holdings v State Tender Board and Another 2001 (3) SA 1247 (SCA) (2001 (8) BCLR 779): referred to

Permanent Secretary, Department of Welfare, Eastern Cape, and Another v Ngxuza and Others 2001 (4) SA 1184 (SCA) (2001 (10) BCLR 1039): F referred to

Rail Commuters Action Group and Others v Transnet Ltd t/a Metrorail and Others 2005 (2) SA 359 (CC) (2005 (4) BCLR 301; [2004] ZACC 20): referred to

Ranger v Wykerd and Another 1977 (2) SA 976 (A): referred to

Steenkamp NO v Provincial Tender Board, Eastern Cape 2006 (3) SA 151 (SCA) G ([2006] 1 All SA 478): referred to

Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority SA 2006 (1) SA 461 (SCA) ([2006] 1 All SA 6): referred to

Trotman and Another v Edwick 1951 (1) SA 443 (A): referred to

Trustees, Two Oceans Aquarium Trust v Kantey & Templer (Pty) Ltd 2006 (3) SA 138 (SCA) ([2007] 1 All SA 240): referred to H

Zweni v Minister of Law and Order 1993 (1) SA 523 (A): referred to.

Australia

Bray v Hoffman-La Roche Ltd [2003] FCA 1505: referred to.

Canada I

2038724 Ontario Ltd v Quizno's Canadian Restaurant Corp (2008) 89 OR (3d) 252 (SCJ): referred to

Bywater v Toronto Transit Commission (1998) 27 CPC (4th) 172 (Ont Gen Div): referred to

Hollick v Toronto (City) 2001 SCC 68 ([2001] 3 SCR 158; 205 DLR (4th) 19): referred to J

2013 (2) SA p216

Mouhteros v DeVry Canada Inc (1998) 41 OR (3d) 63 (Ont Gen Div): referred to A

Tiemstra v Insurance Corp of British Columbia (1996) 22 BCLR (3d) 49 (SC): referred to

Webb v K-Mart Canada Ltd (1999) 45 OR (3d) 389 (Ont SCJ): referred to

Western Canadian Shopping Centres Inc v Dutton [2001] SCC 46 (201 DLR (4th) 385): B referred to.

England

Devenish Nutrition Ltd v Sanofi-Aventis SA [2007] EWHC 2394 (Ch): dictum in para [19] applied

Emerald Supplies Ltd v British Airways Plc [2010] EWCA Civ 1284: referred C to

The Merak: T B & S Batchelor & Co Ltd (Owners of Cargo on the Merak) v Owners of SS Merak [1965] 1 All ER 230 (CA): referred to.

United States

Eisen v Carlisle & Jacquelin 417 US 156 (1974): considered.

Wal-Mart Stores Inc, Petitioner v Betty Dukes et al 131 S Ct 2541: dictum in para [18] approved. D

Case Information

An appeal from the Western Cape High Court, Cape Town (Van Zyl AJ). The order is in para [92].

WH van der Linde SC (with S Budlender and M le Roux) for the appellants, the heads of argument having been prepared by W Trengove SC with Mr Budlender and Ms Le Roux. E

SF Burger SC (with JPV McNally SC and JA Cassette) for the first respondent.

J Dickerson SC (with M O'Sullivan and R Garland) for the second respondent. F

D Unterhalter SC (with M du Plessis and I Goodman) for the third respondent.

T Ngcukaitobi for the amicus curiae, the...