Strategic Considerations in Global Litigation: Comparing Judicial Case Management Approaches in South Africa with the United States
| Jurisdiction | South Africa |
| Published date | 27 May 2019 |
| Author | Theo Broodryk |
| Pages | 379-401 |
| Date | 27 May 2019 |
STRATEGIC CONSIDERATIONS IN GLOBAL
LITIGATION: COMPARING JUDICIAL CASE
MANAGEMENT APPROACHES IN SOUTH
AFRICA WITH THE UNITED STATES*
Theo Broodryk
BA LLB (Stell)
Senior Lecturer and Manager: Legal Aid Clinic, Stellenbosch University
1 Introduction
The world has become globalised. Accord ing to Hensler,1 the possibil ity
of mass injuries2 in moder n times has inc reased markedly with the rise of
national and transnat ional corporations who provide ser vices to large parts
of the global population.3 She st ates that, coupled with the moder nisation
of societies, there is an increase in popular expectations of redress a nd also
development of legal do ctrine in many countries where it is now possible
to hold pr ivate and public institut ions accountable for violating legal
standards.4 “With n ationalization and globalization of economic activit y,
the incidence and sc ope of mass litigation has increased dramatically.”5
This has resulted in a continuou sly changing global litigation landscape.6
Litigation too has become globalise d. Disputes that used to be contained
within national borders are now transnational. Global litigation is increasingly
characterise d, not only by t raditional cross-border litigation between par ties
situated in different jurisdictions, but also by parallel litigation in different
countries arisi ng from the same dispute, an apt example of which is the recent
Volkswagen “dieselgate” litigation.
The Volkswagen litigation relates to Volkswagen’s unauthorised use of a
software-based defeat device in diesel automobiles m anufactured by it. The
software enables the vehicles to evade e missions requirements by engaging
* The idea for this article is derived from my attenda nce of a cour se presented by Professor Deborah Hensler
at Stanford Unive rsity, namely “Global Litigat ion”. I would also like to thank t he peer reviewers for th eir
valuable input.
1 DR Hensler “ The Global Lan dscape of Colle ctive Litigation” in DR Hensler, C Hodges & IN Tzankova
(eds) Class Actions in Con text: How Culture, Eco nomics and Politics S hape Collective Litig ation (2016 )
4.
2 IN Tzan kova “Case Management: The Ste pchild of Mass Clai m Dispute Resolution” (2014) 19 Unif L
329 330 defin es “mass di sputes” as “di sputes involvin g a large nu mber of claim ants that se ek remedies
from anothe r party, usually a c orporation, for al leged infrin gements of their rig hts”.
3 Hensler “The Glob al Landscape of Collec tive Litigation” in Clas s Actions in Contex t 4.
4 See also DR Hensler “How Economic Globaliz ation is Helping to Construct a Private Tran snational Legal
Order” in S Mul ler, S Zouridis, M Fris hman & L Kistema ker (eds) The Law of the Future a nd the Future
of Law (2011) 249-261 as author ity for the proposition tha t mass dispu tes increasi ngly occur b ecause of
globalisation and industrialisation.
5 DR Hensler “Financi ng Civil Litigation: the US Per spective” in M Tuil & L Visscher (eds) New Trends in
Financing Civ il Litigation in Europ e (2010) 155.
6 GC Hazard “Fr om Whom No Secrets ar e Hid” (1997-1998) Tex L Rev 1665 1666.
379
(2017) 28 Stell LR 379
© Juta and Company (Pty) Ltd
full em issions controls only whe n ofci al emissions testi ng occurs.7 Lawsuits
erupted in various count ries. In the Un ited States, the Judicial Panel on
Multidistrict Litigation consolidated more than 500 suits in the federal United
States district c ourt of the Norther n District of California.8 At the same ti me,
in the Netherlands, inter alia the Volkswagen Investor Settlement Foundation
and the Stichting Volkswagen I nvestor Settlement were established to seek
settlement on behal f of Volkswagen investor s worldwide to recover damages
incurred on Volkswagen s ecurities under t he Dutch Collective Settlement
Act.9 Meanwhile, in Germany, a lawsu it was led at the Regional Court in
Brunswick on b ehalf of numerous i nstitutional i nvestors from all over the
world totall ing more t han three billion euros.10 In futu re, these claims may
be pur sued in a collective fashion through the Capital Markets Model Case
Act of 2012 (commonly referre d to as “KapMuG”).11
Although these case s are being conducted in parallel, it is evident upon
closer considerat ion that there is nevertheless a measure of overlapping and
interplay between the litigation in t he above jurisdict ions. For example, t he
United States Judicial Panel on Multidistrict Litigation held t hat most of
the underlying conduct occurred or is located outside of the United States,
including pote ntially relevant witnesses and evidence from Volkswagen a nd
other entities involved i n the de sign, production, s ale and ma rketing of the
affected vehicles and the components at issue.12 The German litigation is
funded by an international consortium of funder s, but largely spearheaded
by Amer ican law r ms.13 The lead cou nsel and funder14 of the Volkswagen
Investor Settlement Foundat ion and t he funder15 of the Stichting Volkswagen
Investors Claim are both American law rms, with both of these rms utilising
Dutch cou nsel. The Ger man lawsuit compr ises international investors from
cou ntrie s includ ing, but no t limit ed to the Ne therla nds and th e Unite d States .16
Moreover, the Volkswagen litigation stretches beyond American, Dutch and
German borders, with sim ilar consumer and security lawsuits being led in
7 In re: Volkswagen “Clean D iesel” MDL 15-MD-2672-C RB (JSC) 1-2.
8 2. Th e United States Judicial Panel on Multidist rict Litig ation held that “the ac tions in this litigation
involve common question s of fact, and that centraliz ation in the Northern Dist rict of California will se rve
the convenien ce of the parties a nd witnesses a nd promote the just a nd efficient condu ct of the litigation”.
9 Dutch Act on Collective Settlements , Law of 23 June 2005, Stb. 340. The websites of the
foundations can be accessed at and
volkswageninvestorsclaim.com>.
10 For the press release, v isit .
11 The cou rt order of the Brunswick D istrict Cou rt (Landge richt) can be a ccessed at
disputeresolutiongermany.com/wp-content/uploads/2016/09/Volkswagen-Dieselgate-5_OH_62_16.
pdf>. The KapMug-procedu re allows a Ger man trial court to refe r multiple investo r suits with c ommon
questions of fa ct or law to a court of a ppeals. The appel late court the n selects a model case t hat is run by
a lead model plaint iff to try, the outc ome of which is binding on t he remaining ca ses.
12 In re: Volkswagen “Clean D iesel” MDL 15-MD-2672-C RB (JSC) 2.
13 A Frankel “U.S. law fi rms are betting on co ntrol of VW litigation overse as” (02-11-2015) Reuters tp://
blogs.reuters.com/alison-frankel/2015/12/02/u-s-law-firms-are-bet ting-on-control-of-vw-litigation-
overseas/> (acc essed 15-10-2016).
14 Bernst ein Litowitz Berger & G rossmann LLP.
15 Labaton Sucha row LLP.
16 For the press release , visit .
380 STELL LR 2017 2
© Juta and Company (Pty) Ltd
several other countr ies.17 Nevertheless, the inter play between the jurisdictions
involved in t he litigation continues to exist. For exa mple, European lawyers
working w ith Michael Hausfeld, a prominent American class-a ction lawyer
who played a key role in the A merican Volkswagen litigation, are assisti ng
Australian attorneys to pressur e Volkswagen for set tlements over its
emissions-cheat ing scandal.18 Australia has reportedly become a sign icant
battleground b ecause its vehicle-emission reg ulations are almost ident ical to
European Union laws and, if an Australian court determi nes that Volkswagen’s
emissions system illegally cont ained a defeat device, Australia could become
a precedent for mass claims in Eu rope.19
The Volkswagen litigation is a prime example of the changing nature of
global litigation. Th is type of litigation is often complex and presents vexing
legal and practical challenge s.20 To par ticipate in this realm suc cessfully and
to design, implement and coord inate an effective global litigation st rategy,
knowledge limited to one’s own legal system will no longer sufce. Of
fundament al import ance is transnational knowledge of legal sys tems. It is
important to keep in mind t hat, while litigation has gone global, the law
has not. Law has resisted the globalisation trend. “It remains essentially
national, ema nating from sovereign rulemaking st ructures.”21 There may be
convergence and occasional harmonisation, but not uniformity.22 Essentially,
therefore, the par ty that knows the legal syst em of the jurisdiction where the
litigation occurs is in a better position to shape the proc eedings to achieve the
desired outcome. Ultimately, the global dimension of complex, high-stakes
legal disputes shapes par ties’ and lawyers’ strategies and judges’ decisions.
Knowledge of the legal systems of the different jurisdictions i nvolved in
the litigation may assist in add ressing the challenges that c ould arise duri ng
global litigation. It may also assist parties to make sensible st rategic choices
regarding the conduct of the litigation. Signicant di fferences between
common-law and civil-law systems, such as the prevalent role of judges in
17 R Yu & T Chen “Volks wagen Faces Lawsuit i n China over Emi ssions” (15-12-2015) Wall S treet
Journal
(accessed 15-10-2016); H Tabuch i & J Ewing “Volkswagen to Pay $14.7 Billion to Settle Diesel Claims
in U.S.” (27-06-2016) The Ne w York Times
settlement- diesel-scandal .html> (accessed 15-10-2016); W Boston “V W Facing Uphill Bat tle outside the
U.S. in Emissions Claims” (23-08-2016) Wall Street Journal
uphill-battle-outside-the-u-s-in-emissions-claims-1471944601> (accessed 15-10-2016).
18 In t he United States, Volkswagen r eached a settlement in te rms of which it agreed to pay up to $14.7
billion to settle claims stemming f rom its diesel emissions cheat ing scandal. In this rega rd, see Tabuchi
& Ewing “Volksw agen to pay $14.7 Billion t o Settle Diesel Claims in U.S.” (27-0 6-2016) The New York
Times.
19 Boston “VW Facing Uphil l Ba ttle outside the U.S. in Emissions Claims” (23- 08-2016) Wall Stre et
Journal.
20 RL Marcu s, EF Sher man & HM E richson Comple x Litigation: Cases and Ma terials on Advanced Ci vil
Procedure 5 ed (2010) 2 sta te as foll ows rega rding the mea ning of “c omplex c ases”: “ thre e chara cteri stics
serve, i ndividually or together, to distinguish complex cases. First, they may involve dif ficult legal and
factual issues … Second , the sheer num ber of parties involved may make l itigation c omplex where it
would not be in a one- on-one litigat ion format. T hird, the amount of money or the sta kes involved may
prompt l itigation ef forts of such d imension t hat a c ase that would ot herwise not be complex bec omes
complex”.
21 C Silve r “Educa ting Law yers for the Global Ec onomy: Natio nal Chal lenges” (200 9/2010) Kyung Hee
University L aw Review 1 6.
22 M Tushnet “The Inev itable Globalizat ion of Constitutiona l Law” (2008-2009) 49 Va J Int’l L 985 987.
STRATEGIC CONSIDERATIONS IN GLOBAL LITIGATION 381
© Juta and Company (Pty) Ltd
civil-law systems to develop the evidence and elucidate the legal concepts
that should govern decisions, may infor m parties’ litigation strategies. 23
Knowledge of civil procedural r ules of the jurisdictions involved in the
litigation could prove decisive, including k nowledge of jurisdictional rules,
rules relat ing to discovery and the admissibilit y of evidence, the ap plication
and scope of privilege rules and the applicable fee regimes and costs rules. For
example, the rules relating to discovery in the United States give wide latitude
for exploring pote ntially relevant evidence, which is not the case in England
where discovery is much more constrained24 or i n most civil-l aw jurisd ictions
where there is generally no party-driven discovery of document s.25 Furt her,
from a practical perspective, consideration would need to be given to issues
such as litigation nancing and the coordination of the litigation when the re
are multiple claimants in different jurisdictions with diverse legal systems and
dissimilar cou rt procedures.26 There may also be regulat ory challenges that
arise in multiple jurisd ictions, each with its own unique legal requirements and
cultural nua nces, which a party to global litigation would need to consider.27
As mentioned above, it is imperat ive that the l itigation strategies of parties
to global litigation take i nto account the di fferences that may exist between
the legal systems of participating common-law and civil-law jurisdictions.
However, of equal importance is not discounting the d ifferences th at may
exist between the court s and procedu ral systems of two or more common-law
jurisdictions involved in the same litigation. Moreover, there may also be civil
procedural dispa rities that exist within a single legal system. Th is article rst
compares the extent to which, if at all, judges in South Africa and the United
States h ave authority to manage complex litigation.28 Thereafter, t he article
illustrates the strategic importance of variations between, and within, these
legal systems in t he context of global l itigation. Both jurisdictions are of
common-law origin. Further, the recently implemented South African judicial
case-ow management pilot project incorp orates as pects of the American
approach to managerial judgi ng.29 Moreover, a lthough global lawyering has
23 Hazard (1997-1998) Tex L Rev 1673. See also JA Jolowicz “Advers arial and Inqu isitorial Models of Ci vil
Procedur e” (2003) Int’l & Comp LQ 281 2 81.
24 RL Mar cus “Putt ing Amer ican Proced ural Except ionalism i nto a Global ized Contex t” (2005) 53 Am J
Comp L 709 715.
25 Hazard (1997-1998) Tex L Rev 1682 .
26 According to Silver (2009/2010) Kyung Hee Unive rsity Law Re view 4, global legal literacy includes
elements of language a nd cultura l fluency, a s well as u nderstandi ng differenc es in the roles of law and
lawyers in na tional contexts.
27 Eg, Tzankova (2014) Unif L Rev 329 states th at:
“The set of issue s identified ea rlier becomes even mor e apparent and dif ficult to deal wit h in
transnat ional mass disputes. On the one hand, the existi ng legal a nd instit utional inf rastruct ure can
be improved only by a coordinate d nat ional or supranationa l in stitutional effor t, which involves
complicated polit ical processes. On the other hand , the national judges confro nted with the handling of
mass dispute s have varying lega l and cultural ba ckground and cas e management skil ls”.
28 E Hurter “Seekin g Truth or Seeking Justice: Reflection s on the changing face of the adversarial process in
Civil Litigation” (200 7) J S Afr L 240 256, states that i n virtually al l American cour ts some or other form
of case managem ent takes place.
29 Acco rding to K Hawke y “Attor neys to benef it from bette r case m anage ment - K ZNLS AG M 2012” (2012)
13 De Rebus 85, “Chief Justice Mogo eng had fur ther led a deleg ation to the Unit ed States in 2 011 to get
insight into how that country deals with the effective disposal of cases. One method they believed could
be used to impr ove the South Africa n system was early jud icial intervent ion in litigation”.
382 STELL LR 2017 2
© Juta and Company (Pty) Ltd
only just begun to penetrate the major South A frican cities, these cities a re
the portals to “ further expansion of the ofce networks of global law rms in
the twenty-rst centu ry if and when political and regulatory hurdles facilitate
expansion i nto such cities”.30 K nowledge of the South A frican legal system
will undoubtedly assist strategic decision-maki ng in future global litigation
where both c ountries are involved.31 Conversely, it is conceivable t hat a lack
of knowledge would needlessly complicate cross-border collaboration and
coordination of the paral lel litigation.32
Although it is trite that no two countries’ legal systems are identical,33 this
article ai ms, by structu ring the compari son around the issue of judicial case
management of complex litigation, to demonstrate the extent to which such
differences are accentuated i n the context of global litigation.34 Im port antl y,
differences in respect of judicial approaches to case management within these
jurisdictions ar e also relevant to the analysis. This is essentially because “[m]
anagerial deci sions ca n affect parties’ strateg ic adva ntages and inuence the
outcome of the case”.35 This art icle does not aim to engage in a critical analysis
of the value of judicial case management as such, but rather to consider how
differences in judicial approaches could inform strategic decision-making
during global litigation.
2 Judicial case management
According to Tzankova, in common-law jur isdictions the term ‘judicial
case management’ is dened as “the judge taking an active role in shepherding
litigation to a c onclusion, rat her than leaving it to the lawyers to set the pace
and determi ne the chronology of events”.36 This constitutes a depar ture
from the traditional approach in terms of which common -law judges in civil
litigation were “passive arbiters of conicting pr ivate interests who rule
on questions of law”.37 The parties investigated, prepared and presented
30 R Faulconbrid ge, JV Beaver stock, D Mu zio & PJ Taylor “Global Law Firms: Globali zation and
Organiza tional Spac es of Cross -border Leg al Work” (200 7-2008) 28 Nw J Int’ l L & Bus 455 464. The
growth of American l aw firms in South Af rica has be en slow but prom ising, with p rominent Ame rican
firms , including White & Case and Baker & McKenzie, establishin g a significant South African prese nce.
31 Faulconbridge e t al (2007-2008) Nw J Int’l L & Bus 468.
32 J Flood & F Sosa “Lawyer s, Law Firms, and the Sta bilization of Transnat ional Business” (2007-200 8) 28
Nw J Int’l L & Bus 489 492- 493.
33 Accord ing to Faul conbrid ge et al (2007 -2008) Nw J Int’l L & Bu s 474, the stea dfastl y “nation al” natu re of
legal systems i s one of the most funda mental problems glob al law firms fac e.
34 Marcus (2005) Am J Co mp L 740 states the problem i n the United States is t hat comparative pr ocedure is
“barely on the ma p”.
35 EG Thornbu rg “The Manager ial Judge Goes to Trial” (2010) 44 U Rich L Rev 1 261 130 0.
36 Tzankova (2014) Unif L Rev 336. D Elliot “M anagerial Ju dging and t he Evolution of P rocedure” (1986)
53 U Chi L Rev 306 326, states t hat mana gerial judging as the “self -consc ious rest ruct uring of procedu ral
incentives by tria l judges on an ad hoc basis to achieve certain objecti ves” is a relatively recent innovation
in the histor y of Anglo-Amer ican civil procedu re.
37 MF Connor “Tam ing the Tort Monster” (2000) 4 Brief ly 1 8-9.
STRATEGIC CONSIDERATIONS IN GLOBAL LITIGATION 383
© Juta and Company (Pty) Ltd
evidence and arguments whilst the judge assumed a passive role throughout
the proceedings.38
The Volkswagen litigation before Breyer J necessitated judicial case
management in the pre-tr ial stage of the case and a shift f rom part y control to
judicial control.39 T his is because t he adversarial approach to individualised
justice is impractical when thousands of claims must be dealt with quickly
and efciently, which is generally the case in global litigation.40 I n addition,
as global lit igation involves comple x issues, it requ ires greate r administ ration
and management of the case.41 In the Volkswagen litigation, for in stance,
the regional court in Br unswick registered more than 1400 complaint s from
institutional and individual shareholders seeki ng more than nine billion
US dollars in damages.42 In Cal iforn ia, Breyer J had to oversee more than
500 consumer lawsuit s, including approximately 180 class actions, against
Volkswagen. The United States Panel on Multidist rict Litigation st ated that
“[w]e select Judge Cha rles R. Breyer as the transferee judge because he is a
jurist who is thoroughly familiar with the nuances of complex, multidistrict
litigation by virtue of having presided over nine MDL dockets, some of which
involved numerous international defendants. We are condent that Judge
Breyer will ste er this controversy on a prudent and expeditious course”.43
Breyer J similarly stated that “the nu mber and complexity of these actions
warrant holding a single, coordinated initial case management conference
for all actions”.44
In view of the above, it is worth consideri ng in more detail the extent to which
there is judicial case mana gement of complex litigation in South Africa and
the United States. Have judges in these jurisdictions become “active managers
and watchdogs, disregarding the traditional norms of judicial passivit y and
neutral ity”45 and, if so, to what extent? To facilitate the comparative analysis,
the article sp ecically considers the judicial case management approaches in
both jur isdictions during pre-trial proceed ings and in class action litigation.
The class action device has specically been selected for comparison bec ause
it is one of the most com mon methods of litigating complex claims on beha lf
of large numbers of individuals i n both jurisdiction s.46 It was also one of the
primar y mechanisms used in the Volkswagen litigation in the United States.
38 See, eg, J Resn ik “Managerial Judges” (1982-1983) 96 Harv L Rev 374 38 0-381; F James
& G Hazard Civil Proced ure 2 ed (1977) 4-8; RW Millar “T he Formative Pr inciples of Civil Pro cedure”
(1923) I8 Ill L Rev 1 9-24.
39 Hurter (200 7) J S Afr L 256-259.
40 Connor (2000) Brief ly 1 8-9.
41 C Piché “Judging Fai rness in Class Act ion Settlements” (2010) 28 Windsor Y B Access Just 111 117.
42 N Clark “Volks wagen Shareholder s Seek $9.2 Billion Over Diesel Scand al” (21-09-2016) The New York
Times
germany.htm l?_r=0> (accessed 16-10-2016).
43 United States Judi cial Panel on Multidis trict Litig ation In Re: Volkswage n “Clean Diesel” Marketing ,
Sales Pract ices and Product s Liability Litigat ion MDL No. 2672 Transfer Order.
44 United States D istrict Cou rt North ern Distr ict of Califor nia In Re: Volkswagen “Cle an Diesel” Mar keting,
Sales Pract ices and Product s Liability Litigat ion MDL No. 2672 CRB (JSC) Pretr ial Order No. 1.
45 Connor (2000) Brief ly 8-9.
46 LJ Silberma n, AR Stein, TB Wolff Civ il Procedure: Theo ry and Practice 4 e d (2013) 1005.
384 STELL LR 2017 2
© Juta and Company (Pty) Ltd
2 1 Pre-trial judicial case management
Active judicial case management has become a dening characteristic of
the federal civil pre-tr ial scheme.47 Mulle nix states, “p articularly i n the realm
of complex litigation, the American m anagerial judge has undert aken roles
that are indeed convergi ng with the civil law inquisitorial judge”.48 Similarly,
Rowe posits “the extent that civil-law judges take initiative to shape the course
of proceedings – as some do considerably and others less so – American
pretrial manager ialism does take us in their direct ion”.49 Expre ss author ity for
judicial case management can be found in rule 16 of the Federal Rules of Civil
Procedure (“Federal Rules”), which deals with the court’s aut hority to issue
scheduling and case management orders,50 a nd in rule 23, which concer ns
class actions.51
The Federal Rules were conceived as one unied set of rules exible enough
to govern cases of all sizes and variation s in complexity.52 Federal Rule 16
pertinently il lustr ates American pre-trial man agerialism.53 It does so through
regulating a variet y of issues per taining essentially to the conduct of pre-tr ial
conferences.54 Over the years, the ru le has been amended to furthe r reinforce
and broaden tr ial court s’ managerial authority.55 Rule 16 is titled “Pret rial
Conferences; Scheduling; Management” and it commences by stat ing the
purposes of a pretrial con ference, which include expediting the disposition
of an action, establish ing early a nd continuing control so t hat the case will
not be prot racted due to a lack of management, and facilitating settlement.56
It require s, subject to cer tain exceptions, t he issuing of a scheduling order57
within a certain per iod of time58 in terms of which the order limits the time
allowed to join ot her pa rties, to amend t he pleadings, to complete discover y,
and to le mot ions.59 There are a lso certain is sues that the orde r may address,
including the extent of discovery or other appropriate m atters.60 The rule
furthe r regulates the act ionable61 issues that may be considered at the pre-
trial conference, including the formulation and simplifying of issues, the
amendment of plead ings if necessary or desirable, obtaining a dmissions and
stipulations about facts and documents to avoid unne cessary proof, ruli ng in
47 S Gensler “Judicia l Case Management: C aught in the Crossf ire” (2010-2011) 60 Duke L J 674 669.
48 LS Mullenix “L essons from Abroa d: Complexity and Conve rgence” (2001) 46 Vill L Rev 1 13.
49 TD Rowe “Authorized Manageria lism und er the Federal Rules - and the Exte nt of Convergence with
Civil-Law Judgi ng” (2007-2008) 36 Sw U L Rev 191 205.
50 This rule appl ies to all civil actions in t he United States dist rict courts. See Ge nsler (2010-2011) Duke L J
698; Rowe (2007-2008) Sw U L Rev 195-19 8.
51 Class actio ns are a form of complex lit igation, especial ly when compared to ord inary civil l itigation.
52 Baicker-Mckee (2015-2016) Am U L Rev 355.
53 Rowe (2007-2008) Sw U L Rev 195.
54 WD Brazil “Pretr ial Conferences; Schedu ling; Management” in JWM Moor e (ed) Moore’s Federal
Practice 3 ed (Rel 188-12-2015) 16-1.
55 Gensler (2010-2011) Duke L J 680.
56 Rules 16(a)(1), (2) and (5) of the Federal Rules.
57 Rule 16(b)(1).
58 Rule 16(b)(2).
59 Rule 16(b)(3)(A).
60 Rule 16(b)(3)(B).
61 At the cour t’s instance.
STRATEGIC CONSIDERATIONS IN GLOBAL LITIGATION 385
© Juta and Company (Pty) Ltd
advance on t he admissibility of evidence, and so on.62 Courts have a general
discretion to facilitat e in other ways63 the just, speedy, and inexpensive
disposition of the action.64 Courts may f urther issue sanctions where a party
or their legal representative fails to appear at a scheduling or other pre -trial
conference, is substantially unprepared t o participate, fails to participate in
good faith in the con ference, or fails to obey a scheduling or ot her pre-trial
orde r.65
Rule 16 const itutes a relatively robust f ramework for judicial case
management in the federal pre-t rial scheme. Some suggest that active judicial
case management is now a core feature of t his scheme, along w ith notice
pleading, l iberal discovery, and summary judgment.66 The present position,
as set forth by rule 16, enables federal judges to take control of and manage
complex proceedings from the outset of the l itigation.67 A judge may hold as
many pre-trial conferences as he or she pleases and may raise almost any issue
at t hose conferences, which often take place in chambe rs.68 The judge, not
the par ties, conducts these conferences. The judge will review the proposed
discovery plan and wil l issue a discovery order, which order typically
identies the sc ope and timing of discover y, who will be deposed, when and
for how long, when discovery will be completed, and so on.69 The extensive
list of pre-t rial orders issued in the Volkswagen litigation aptly illust rates
the extent of the control assumed by Breyer J over the pre-trial stage of the
global litigation.70 It is also arguable that there is a direct correlation bet ween
the extent of control assumed by Breyer J and the unprecedented speed with
which settlement was reached. “It was one of the fastest civil set tlements in
the histor y of corporate malfea sance, coming together i n six months inste ad
of the years us ually required for such complex negotiations” with Breyer J
setting the tone f rom the outset of the litigation.71 “T he overriding theme is
that judges who take the time to talk with the lawyers and involve the par ties
at the Rule 16 stage are in a much bet ter position to tailor the pretrial pro cess
to achieve the ‘just, speedy, and inexpensive’ determ ination of the claims”.72
62 Rule 16(c)(2)(A)-(C) of the Federal Rules.
63 Not otherw ise referred to in r ule 16(c)(2).
64 Rule 16(c)(2)(P).
65 Rule 16(f).
66 Gensler (2010-2011) Duke L J 674.
67 670-671.
68 Baicker-Mckee (2015-2016) Am U L Rev 392.
69 Silberman e t al Civil Procedu re: Theory and P ractice (2013) 658-659. See also Gensler (2010-2011) Duke
L J 693.
70 The followi ng website conta ins a list of close to 20 pre-trail orders deali ng with a v ariety of is sues in a
variety of ways: .
71 J Ewi ng & H Tabuchi “Behind Volkswage n Settle ment, Spe ed and Compromise” (15-07-2016)
The New York Times tp://www.nytimes.com/2016/07/16/business/inte rnational/behi nd-volkswagen-
settlement- speed-and-co mpromise.html> (acce ssed 19-10-2016).
72 Gens ler (2 010-2011) Du ke L J 693. See also B razil “Pret rial Confer ences; Scheduli ng; Management ” in
Moore’s Federal Practice 16-1.
386 STELL LR 2017 2
© Juta and Company (Pty) Ltd
Compared t o the United States, South Af rica has bee n somewhat slow to
transition to judicial case m anagement.73 For the most part, adversarialism
continues to dominate with t he parties exercising control over the pre-trial
and trial phases of civil lit igation.74 Rule 37 of the Rules Regulating the
Conduct of the Proceedings of the Severa l Provincial and Local Div isions
of the High Cour t of South Africa (“Unifor m Rules”) is the South African
version of Federal Rule 16. The rule com pels part ies to attend a pre-t rial
conference with the aim of reaching a negotiated agreement regarding cer tain
issues and to limit the duration of the litigation insofar as time-consuming
administ rative issues are concer ned.75 It affords the pa rties “an oppor tunity
to endeavour to nd ways of curtailing the du ration of the trial by rede ning
the issues to be tried”76 a nd “to facilitate settlements between the parties,
narrow the issues and to curb costs”.77 Although both rules 16 and 37 are,
in broad terms, aimed at facilitat ing the efcient resolution of civil trials
through various pr e-trial mechan isms integrate d in these rules, the la ck of
active judicial participation evidenced by rule 37 is striking. The rule presents
comparatively few opportu nities for the exercise of unencu mbered judicial
discretion78 and, for the most par t, judicial participation in the pre -trial
process in term s of rule 37 is limited t o circu mstances where the parties have
consented thereto. I n this regard, rule 37(8)(c) provides that “[t]he judge may,
with the con sent of the parties…give any di rection which might promote the
effective conclusion of the matter”.79
Whereas r ule 16 envisions the judge at t he head of the proverbial pre -trial
table, the default position for the conduct of pre-trial conferences in ter ms
of ru le 37 is that they take place between the parties’ legal representatives,
without the judge being present. This stands in stark contrast to rule 16
that, for example, enables the court to conduct a nal pre-t rial conference to
formulate a trial plan, including a plan to facilitate the admission of evidence.80
While rule 37(8)(a) enables a judge in ce rtain circum stances to, mero motu,
or at the request of a par ty, conduct a pre-t rial conference in chambers, rule
37(8)(b) dampens enthu siasm by providing that “[n]o provision of this rule
shall be interpreted as requ iring a judge before whom a confere nce is held
73 Regarding th e origins of judicial ca se management in th e United States, Mar cus et al Complex Litigation
(2010) 15 provide as follows:
“Whatever the overall t ranquillit y of federal c ivil litig ation in 1938, by the late 1940s there was a
widely-felt conce rn among fe deral judges about whether ‘protracted’ litigation, p articularly antitrust
litigation, should be ha ndled differently. A 1951 study by the Judicial Confer ence of the United States
suggested th at the solution was gre ater involvement by judge s”.
By the 1970s, Ch ayes commented t hat “[t]he judge is the dominant fig ure in organ izing and g uiding the
case …” See A Chayes “The Role of the Judge in Public Law Litigat ion” (1976) 89 Harv L Rev 1281 1284.
74 HJ Erasmus “Judicial Cas e Management and the Adversari al Mindset – the New Namibian rules of court ”
(2015) TSAR 2 59 261.
75 See Le kota v Editor ‘Tribute’ Magazine 1995 2 SA 706 (W) r egarding the stock-tac king nat ure of t he
pre-tria l conference. See al so T v T 2016 4 SA 193 (WCC) para 26.
76 Road Accident Fu nd v Krawa 2012 2 SA 346 (ECG) para 17.
77 MEC for Economic Af fairs, Environme nt & Tourism: Eastern Ca pe v Kruizenga 2010 4 All SA 23 (SCA)
para 6.
78 Eg, rule 37(10) provides that “[a] judge in chambe rs may, without hearing the parties , order deviation from
the time lim its in this ru le”.
79 HCJ Flemming “ Case Management ” (2011) Advocate 29 29.
80 Federal Rule 16(e).
STRATEGIC CONSIDERATIONS IN GLOBAL LITIGATION 387
© Juta and Company (Pty) Ltd
to be involved in set tlement negotiations …” All that the ru le requires is that
the p re-trial confere nce minutes must reect “(c) that every pa rty claiming
relief has requested his oppo nent to make a settlement proposal and that such
opponent has reacted thereto” and “(d) whether any issue has been referred by
the parties for me diation, arbitration or decision by a third p arty and on what
ba sis it h as bee n so ref err ed”.81 Conversely, rule 16 aims to facilitate settlement
by enabling the court to require that a par ty or its representative be pre sent
or reasonably available by other means to consider possible settlement.82 Rule
16 clearly envisages a more participatory role for judges insofar as set tlement
discussions are concerned.
Contrary to Federal Rule 16, the scope for judicial control and initiative
within the ambit of Uniform Rule 37 is evidently limited. However, South
African s uperior cou rts possess inherent jurisdiction. Taitz succinctly
describes the courts’ in herent jurisd iction as follows: “[T]hose (unwritten)
powers, ancillar y to its common law and statutory powers, wit hout which the
court would be unable to act in a ccordance with justice and good reason. The
inherent powers of t he court are quite separ ate and distinct from its com mon
law a nd its statutory powers, eg in the exercise of its in herent jurisd iction
the Court may regulate its own p rocedure independently of the Rules of
Co ur t ”.83 Th e cour ts’ inh erent ju risd iction is ut ilise d with a vi ew to, inter alia,
regulating the cour ts’ procedures in the interests of the proper admi nistration
of justice,84 especially where there is no rule dealing with a par ticular
mat ter. 85 Where the ru les provide for a par ticular mat ter, the scope for a cou rt
to exercise its inherent powers is mor e limited.86 C ompelling grounds must
exist before a court may act outside the powers provided for specically in the
rules.87 Where the rules do not provide for a particular set of circumstances,
the court has i nherent jurisdiction to read the r ules in a manner that facilit ates
the admini stration of justice and to handle the matter along prac tical lines.88
Section 173 of the Constitution of the Republic of South Afr ica, 1996
(“Constitution”) empowers c ourts to develop the common law, which clearly
81 Rule 37(6).
82 Rules 16(a)(5) and (c)(1).
83 J Taitz The Inheren t Jurisdiction of th e Supreme Court (1985) 8-9.
84 Universal Cit y Studios Inc v Net work Video (Pty) Ltd 1986 2 SA 734 (A); Krygkor Pen sioenfonds v Smit h
1993 3 SA 459 (A); Wh ite v Moffett Buildi ng & Contracting ( Pty) Ltd 1952 3 SA 307 (O); California Spice
and Marinad e (Pty) Ltd 1997 4 All SA 317 (W); Soller v Maintena nce Magistrate, Wyn berg 2006 2 SA
66 (C); Carmel Trading Co mpany Limited v Commi ssioner for the South Af rican Revenue Se rvices 2008
2 SA 433 (SCA).
85 S v Pennington 19 97 4 SA 1076 (CC). Se e also Phillips v Na tional Directo r of Public Prosecut ions 2006 1
SA 505 (CC) p ara 46 for t he limit s of this p ower. Krygk or Pensioenfonds v S mith 1993 3 SA 459 (A); Neal
A v R Kinder- en Kin dersorgveren iging 1996 1 SA 649 (T); Beinash v Wi xley 1997 2 All SA 241 (A).
86 Western Bank Ltd v Pac kery 1977 3 SA 137 (T); Collec tive Investments ( Pty) Ltd v Brink 1978 2 SA 252
(N).
87 Moulded Comp onents and Rotomou lding SA (Pty) Ltd v Couc ourakis 1979 2 SA 457 (W).
88 Brown Bros Ltd v Doi se 1955 1 SA 75 (W), quoted with approval in Repub likeinse Publi kasies (Edm s) Bpk
v Afrikaan se Pers Publikasies ( Edms) Bpk 1972 1 SA 773 (A) 783.
388 STELL LR 2017 2
© Juta and Company (Pty) Ltd
comprises not only procedural law but also substa ntive law.89 In Mukaddam v
Pioneer Foods (Pty) Ltd (“Mukaddam”)90 the Constitutiona l Court stated t he
following:
“Section 173 makes plain that each of the superior courts has an inherent power to protect and
regulate its own process and to develop the common law on matters of procedure, consistently with
the interests of justice. The language of the section suggests that each court is responsible and controls
the process through which cases are presented to it for adjudication. The reason for this is that a court
before which a case is brought is better placed to regulate and manage the procedure to be followed in
each case so as to achieve a just outcome. For a proper adjudication to take place, it is not unusual for
the facts of a particular case to require a procedure different from the one normally followed. When
this happens it is the court in which the case is instituted that decides whether a specic procedure
should be permitted.”91
The Constitutional C ourt in Mukaddam also refer red to PFE International
v Industrial Depa rtment Corporat ion of South Africa Ltd
92 where the
principle that ru les of procedure should be applied exibly was reafr med by
the court: “[i]t enables a superior court to lay down a process to be followed
in particular cas es, even if that process deviates f rom what its rules prescr ibe.
Consistent w ith that power, this Court may i n the interests of justice depa rt
from its own rules”.93 T he South African superior courts would therefore,
through the exercise of their in herent jurisdiction and in keeping with section
173 of the Constitution , be able to actively manage cas es where it would be in
the interests of justice to do so. Thi s explains why the South A frican superior
courts have generally managed class actions over which they have been
required to adjudicate as was the case i n, for example, Trustees for the ti me
being of the Children’s Resource Centre Trust v Pioneer Food (Pty) Ltd (Legal
Resources Centre as a micus curiae) (“Children’s Resource Cent re Trust” ).94
Though there may be individual va riations in the approaches adopted by
American judges in applying Federal Rule 16 and the extent to which they
tailor the rule to suit the needs of a specic case,95 the existing framework
within wh ich American judges operate constitutes a platform which enables
managerial judging from the out set of the proceedings.96 Whereas “[b]y any
measure, Rule 16 gives judges more managerial arrows tha n can t i n an
ordinary quiver”,97 the platform generated by rule 37 of the Uniform Rules
is somewhat brittle in comparis on. Judicial case man agement in South Africa
is largely de pendent upon the exercise of the South Af rican superior cour ts’
inherent jurisdict ion. Hence, it is c onceivable that there exists a stronger
possibility that ad hoc appro aches adopted by judges in the res pective
89 SABC Ltd v Nation al Director of Public Prosec utions 2007 1 SA 523 (CC) par as 35 and 36; Legal Aid
Board v S 2011 1 All SA 378 (SCA); Coetzee v National Co mmissioner of Police 2011 2 SA 227 (GNP);
FirstRand Ban k Ltd v Beyer 2011 1 SA 196 (GN P); SA Broadca sting Corporat ion Ltd v National Di rector
of Public Prosec utions 2007 1 SA 523 (CC) para 88; S v T hebus 2003 6 SA 505 (CC).
90 2013 10 BCLR 1135 (CC).
91 Para 42.
92 2013 1 SA 1 (CC).
93 Para 39.
94 2013 1 All SA 648 (SCA).
95 Gensler (2010-2011) Duke L J 720.
96 687.
97 Rowe (2007-2008) Sw U L Rev 196.
STRATEGIC CONSIDERATIONS IN GLOBAL LITIGATION 389
© Juta and Company (Pty) Ltd
divisions of the High Court of South A frica to judicial case ma nagement of
pre-trial proceedings may vary, sometimes inordi nately, from case to case.
To address th is lack of uniformit y, Mogoeng CJ r ecently stated the foll owi ng:
“The leadership of the Judiciary at all levels has resolved to begin a massive project of overhauling all
the Rules of the High Court and Magistrates’ Courts with the view of doing away with archaic Rules,
progress- and efciency-retarding Rules, to inject exibility, facilitate the full scale implementation
of electronic ling and electronic record-keeping, video conferencing, judicial case management
harmonisation or streamlining of all Court Rules”.98
A Judicial Ca se Flow Management Committee was est ablished t o
implement the project to which Mogoeng CJ refers, c alled the Case-Flow
Management Pilot Project (the “Project”). The P roject was launched in 2012
in ve pilot cour t sites, namely in both Gauteng divisions, the Western C ape
division and the KwaZulu-Natal divisions ( Pietermaritzburg a nd Durban) of
the High Court of South Af rica.99 The project ended on 31 March 2015.
100
Apparently, the P roject delivered positive results in t he divisions in which it
was implemented. Since the commencement of the Project, in the KwaZulu-
Natal division, the wait ing time for trial dates ha s decreased from 12 months
to bet ween six and eight months in Du rban, and f rom two to three years to
betwee n eight and 12 months in P ietermarit zburg.101 In the Western Cape, the
waiting time for the allocation of a trial date has decr eased from between two
to three years to t hree months.102 “In Gauteng, the waiting period for a trial
date was reduced from one year to nine months. At the start of the project, the
North Gauteng High Cou rt had 224 921 outstanding cases on t he civil roll,
which were reduced to 144 027 by February 2015.”103
Prior to the implementation of the Project, the Ofce of the Chief Justice
issued a draft pract ice direct ive titled “Case Management, A llocation of
Cases and Case Management C onferences”, which all pilot cour ts had to
implement .104 The di rective distinguishes betwee n two phases, from the
institution of proceedings until the close of pleadings and from the close
98 Mogoeng Mogoeng CJ The Implication s of the Office of the Ch ief Justice for Const itutional Democ racy
in South Afri ca (2013) lecture pre sented at t he Annual Human R ights Lectu re hosted by the Facult y of
Law, Stellenbosch Unive rsity (copy on file wit h author).
99 Hawkey (2012) De Rebus 85. A few other divisions appear to have at tempted to a dopt jud icial c ase
management approaches, such as the division s situated in Bhisho and East London. I n this regard, see
eg, Anonym ous “Judicial Se rvices Comm ission Inter views” (09-10-2015) Democratic Governance
and Rights Unit
Van%20Zyl.pdf> (acc essed 16-10-2016). However, it is u nclear whether they have ado pted the Proje ct’s
practice directive or whether they have adopted any other judicial case management practice directives.
Further, there doe s not appe ar to be any empir ical data to asses s whether judicial case management in
these divisio ns has been succes sful compared to i mplementation at th e Project’s pilot court site s.
100 Media Adv isory “Case Flow Management Works hop: An Efficien t Justice System” (08-04-2015) Offi ce
of the Chief Justice
MENT-WORKSHOP_08-April-2015.pdf > (accessed 16-10-2016); A Pule “New sys tem to i mprove
access to just ice” (07-2015) Vuk’uzenzele mprove-access-
justice> (acce ssed 16-10-2016).
101 N Manyathi-Jele “ Progress on judic ial case-flow ma nagement” (2014) 10 De Rebus 65.
102 Pule “New system to improve access to justice” (07-2015) Vuk’uzenzele; Manyathi-Jele (2014) De Rebus
65; R Hende rson “Justice System to go Hi-tec h” (13-04-2015) Times Live
thetimes/2015/04/13/justice-system-to-go-hi-tech> (accessed 16-10-2016).
103 Pule “New sy stem to improve acce ss to justice” (07-2015) Vuk’uzenzele.
104 Offic e of the C hief Justice Draft Practice D irective: Case Manageme nt, Allocation of Cases a nd Case
Management Conferences (2012).
390 STELL LR 2017 2
© Juta and Company (Pty) Ltd
of pleadings until certication that a matter is trial-ready.105 The directive
provides t hat the Regist rar must manage the rst phase106 and a designate d
judg e is respo nsible for ma nagin g the seco nd phase of t he litiga tion.107 Similar
to Federal Rule 16, the judge must schedule an initial case management
conference108 and, before this c onference takes place, the part ies must confer
about the nature and basis of their claims and defences, the possibilities for
a prompt settlement or resolution of the case, and each of the issues to be
addressed at the conference.109 These issues include the cont rol and scheduling
of d isco very,11 0 the possibilit y of settlement or med iation of the dispute111 and
such ot her matt ers as may fa cilitat e the just an d speedy di sposal of th e case.112
Immediately af ter the completion of the initial case ma nagement conference,
the judge must issue a case manageme nt order that addresse s these issues.113
Further resembling Federal Rule 16, before the trial takes place, the judge
must hold a nal pre-trial conference.114 The directive also provides that it
must, as far as possible, be implemented in conson ance with rule 37 and that,
where necessary, directions must be obtained from the judge to whom a matter
is allocated in order to resolve dif culties in this respect.115
The Gauteng Local Division issued a f urther c ase management dire ctive
effective from the rst term of 2015.116 T his di re cti ve pr ovi des t hat on ly ma tt ers
involving expert evidence shall be subject to judicial case-ow management
and require cert ication before proceeding to trial on the set down date.117
In terms of the directive, a motion court dedicated to interlocutory matters is
required to deal with all instance s of non-compliance, in trial matters, with
the rules, including rule 37, and t he cour t’s practice manual.118 Fu rther, a
judicial pre-tr ial conference to cert ify trial readi ness is introduced.119 Before
such a “cer tication-conference” takes place, the judge must be informed of
various is sues, including: con rmation that d iscovery is complete or, if it is
105 PL Mokoen a & R Wi llis “The High Cou rt Commit tee of t he Bar Cou ncil of t he Johannesbu rg Society
of Advocates Report” (30-09-2014) nt/uploads/2016/08/Important-Notice-on- Civil-Trial-Case-
Planning-D ocument-v2.pdf > (accessed 16-10-2016).
106 Office of the Ch ief Justice Draft Practice D irective: Case Manageme nt, Allocation of Cases an d Case
Management Conferences para 1.
107 Para 5.
108 Para 6(1).
109 Para 6(2).
110 Par a 6(3)(e).
111 Para 6(3)(k).
112 Para 6(3)(l).
113 Para 8.
114 Par a 10.
115 Para 17. See also Anonymous “I mportant Circu lar: Case Management of Civil Tria l Cases in the Gauteng
Local Division of the Hig h Court of Sout h Africa (Johannesb urg)” (08-2016) Pho enyx Legal Services
Management-a t-the-GLD-0 7102014122009.pdf > (accessed: 16-10-2016).
116 Deputy Jud ge President “Case Man agement Directive Ef fective from First Term of 2015 (Amended up to
June 2015) Gauteng Local Division Allocation of Trial Dates, Cert ification of Ma tters Involvin g Expert
Evidence as Tria l Ready, and Swift Reme dies for Delays in Litig ation: 2015” (10-12-2014) Johannesburg
Bar
-FOR-2015-20150625lt.pdf> (accessed 16-10-2016).
117 Par a 1.
118 Paras 4.1-4.2.
119 Pa ra 7.
STRATEGIC CONSIDERATIONS IN GLOBAL LITIGATION 391
© Juta and Company (Pty) Ltd
incomplete, why that is the case and when it will be complete; a succinct
summar y of c ommon cause facts about which no furthe r evidence will be
allowed at t rial; a statement of the questions of law and of fact that the trial
court must decide; and so on.120
The Project clearly envisages a more participatory judge compa red to
the position t hat existed in the pilot cour ts prior to its i mplementat ion. It
certain ly moves t he judicial case management practice i n these courts closer
to manage rial judging in the United Stat es. Rather than simply leaving it to
the parties to control the pre-t rial process , as rule 37 essentially does, the
judges in the pilot cour ts are expected to manage proceedings by continuously
engaging the parties on var ious is sues, including the scope of discovery and
possible sett lement of the d ispute. One gets the sense that, whereas rule 37
entails that the parties report to the judge on what they have done during the
pre-trial stage, unde r the pr actice directive such report ing merely con rms
what the judge already knows because he or she is integrally involved in the
pre-trial proc ess.
The Project is commend able. However, implementation of the i nitiative
was limited to pilot c ourts, leavi ng several divisions of the High Court of
South Afr ica who have seemingly not implemented the practice directive.121
The approaches of South African courts to managing pre-trial pr oceedings
may accordingly vary depending on which division has jurisdiction over
the dispute. This does not take into account the variations in approaches
of ind ividual judges to managing complex cases. Importantly, just because
a d ivision has not adopted a practice dire ctive that deals with judicial case
management, does not mean that the court would otherwise be precluded from
actively managing complex cases that come before it. However, as it currently
stands, it would be misleading to say that it i s generally the app roach of the
various divisions of the High Court of South Afr ica to employ managerial
judging in pre-tr ial proceedings. The nature and extent to which judges
are involved in manag ing the pre-trial stage of the litigation appears t o be
somewhat unpredictable and depe ndent on the specic d ivision where the
litigation occu rs and on the specic judge of the division who is req uired to
adjudicate over the matter.
2 2 Class actions
The Manual for Complex Litigation122 provides that “[f]ai r and efcient
resolution of complex litigation requires that the court exercise e arly and
effective supervision (and, where necessa ry, control) … and that the jud ge
and counsel collaborate to develop a nd carry out a comprehensive plan for
the conduct of pretrial a nd trial proceedings”.123 The Manual describes a trial
120 Para 8(1).
121 See the text t o n 99 above. Admitted ly, it was somewhat challeng ing to obtain in formation from ma ny of
the divisions of the Hi gh Court of South Afr ica, other than the pilo t courts, regard ing their partic ularised
approaches to m anaging pre-t rial proceedi ngs.
122 Manual for Com plex Litigation 4 ed (20 04).
123 7.
392 STELL LR 2017 2
© Juta and Company (Pty) Ltd
judge’s appropriate management role a s active, substantive and continu ing124
and it accordingly reinforces the active judicial case management role adopted
by A merican judges during pre- trial proceedi ngs in com plex disputes. It is
also indicative of the nature of the cou rt’s role in class actions.
Rule 23 of the Federal Rules regulates class actions in the United States.
It contains various provisions governing t he trial court’s powers, obligations
and discretion in ma naging class actions.125 Rules 23(c), (d) and (e) con fer
upon cour ts managerial authorit y over class actions.126 Rule 23(c) deals with
the court s’ manageme nt role inter alia in respect of the cer tication process,
the giving of notice and in respect of classes and subclasses, whilst rule 23(e)
refers to the court s’ r ole in approving class -action settlements. Importantly,
rule 23(d) affords to courts a broad discretion to accomplish thei r role as
managers in the conduct of class ac tions.127 According to Ball, the rule “allows
the court author ity to prescribe appropriate reg ulations for the conduct of the
action, so that, rather th an requiri ng a part icular procedure, it per mits and
even encourages the court s to establish appropriate procedures tailored to the
fac ts of a par ticu lar ca se ...”.128 Unde r the bro ad auth orit y gran ted by r ule 23(d)
(1), cour ts can issue a variety of orde rs in aid of the effective management of
class actions.129
In In re Air Crash Disaster at Florida Everglades,130 th e cour t held t hat “[i ]n
class actions we recognize, indeed in sist upon, the cour t’s participation as
the manager of the case”.131 Piché, refer ring to class action law in the United
States, reiterate s that judges’ traditional role in litigation has been rev ised as
they are more actively involved in the prosecution of class actions, in part to
protect absent class parties.132 The American Pocket Guide for Judges issued
by the Federal Judicial Center comprehensively describes judges’ unique and
non-traditional role in class action litigation.133 The Ma nual for Complex
Litigation explains the r easons underlying the ne ed for active judicial case
management of cla ss actions, which include that it is a form of high stakes,
complex litigation and that it has the ability to bind people who are not
individu al litigants.134
The American approach clearly favours active judicial management of class
actions. In N kala v Harmony Gold Mining Compa ny Limited (“Nkala”),135
Mojapelo DJP explained the current situ ation in South Africa regarding
124 12.
125 PG Karlsgodt “United Stat es” i n PG Ka rlsgodt (ed) World Cla ss Actions – A Gu ide to Group an d
Representa tive Actions arou nd the Globe (2012) 35. See also Rowe (2007-2008) Sw U L Rev 197-19 8.
126 RH Klonoff Cl ass Actions and Oth er Multi-part y Litigation in a Nutsh ell 4 ed (2012) 25.
127 DD Leven hagen “Class Actions: Judicial Control of Defens e Communic ation with Absent Class
Members” (1984) 59 Ind L J 133 133.
128 LJ Ball “Damages in Class Actions: Det ermination and All ocation” (1969) 10 BC In dus & Com L Rev
615 632.
129 MH Greer A Pr actitioner’s Guide to C lass Actions (2010 ) 5.
130 1972 549 F2d 1006 n8 (5th Cir 1977).
131 1012.
132 Piché (2009) J Civ L Stu d 128-130.
133 BJ Rothstein & TE Wil lging Managing Cla ss Action Litigatio n: A Pocket Guide for Ju dges (2005) 2. Se e
also DR Hensler Cla ss Action Dilemmas: Pur suing Public Goals for P rivate Gain (2000) 445.
134 Manual for Com plex Litigation (200 4) 243-244.
135 (48226/12, 31324/12, 31326/12, 31327/12, 48226/12, 08108/13) 2016 ZAGPJHC 97 (13 May 2016).
STRATEGIC CONSIDERATIONS IN GLOBAL LITIGATION 393
© Juta and Company (Pty) Ltd
judicial case management of class actions w ith reference to sec tion 173 of the
Constitution:
“The trial court will, no doubt, be tasked with managing the process once the class action is certied…
[T]hat court, using its powers in terms of s 173 of the Constitution, the various rules of court and
practice directives, will be able to decide on the route(s) best suited to resolve the manifold disputes
that are bound to surface. That court has signicant powers to manage the proceedings in the interests
of justice. It is, furthermore, within the wit of that court to determine whether sub-classes should
be formed and for the proceedings to be arranged in such a manner so as to do justice between the
parties.”
The above approach to managi ng class actions follows upon an earlier
recommendation by the South Africa n Law Com mission (“SAL C”) that,
because class actions a re generally more complex compared to ordinar y civil
litigation and entails the det ermination of the rights and obligations of absent
class member s, South Afr ican superior courts should actively manage class
actions.136 Accordi ng to the SALC, “t he courts should be given broad general
management p owers exercisable either on the ap plication of a party or class
member or on the c ourt’s own mot ion”.137 Hur ter has also emphasised the
need for judges to “step outside the usual passive role a ssigned to them by
the traditional adver sarial model of litigation and actively to take part in such
management”.138 Similarly, De Vos states that “[ l]egal representatives and
judges will have to act in innovative ways to overcome complex pro cedural
issues relating to class actions, such as notice to class members, proof and
distribution of damage s and management of these proceedings”.139
The United States has largely responded to difculties in managing class
actions by adopting a comprehensive cour t rule to regulate it,140 confer ring
upon judges, extensive managerial powers and a ccordingly enabling active
judicial management of these proce edings. The South African legislatu re has
ig nore d repe ate d call s for th e int rodu ctio n of cla ss act ion le gisl atio n.141 Fede ral
Rule 23 cate rs for specic circu mstances where a court would need to full
an active judicial management role and provides a framework for the exercise
of the cour ts’ powers in this regard. However, South Af rican superior courts
adjudicating class act ions, as is largely the case during pre-t rial proceedings,
are compelled to rely on their inherent jurisdiction without t he benet of
legislative guidance on the issue of judicial ca se management. Although
such discretionar y freedom may encour age creativity and in novation insofar
as judicial case management is concerned, it does not necessa rily assist in
promoting judicial certainty and uniformity across the different divisions
of the High Court of South Af rica. Ad hoc procedu ral a ctivism is, af ter
136 South Africa n Law Commission Project 88: The Rec ognition of Clas s Actions and Pub lic Interest Acti ons
in South Afri can Law Report (1998) para 5.9.2.
137 Para 5.9.4.
138 E Hurte r “Some Thoug hts on Cur rent Development s relating to Class Actions in South A frican Law as
viewed agains t Leading Foreign Ju risdictions” (200 6) 39 CILSA 485 489.
139 W de Vos “Judicial Activi sm Gives Rec ognition to a General Class Actio n in South Africa: Children’s
Resource Cen tre Trust v Pioneer Foods (50/12) [2012] ZASCA 182” (2013) TSAR 370 380. See also LCT
Harms “De mystification of t he Inquisitorial Sy stem” (2011) PER 2 6.
140 W de Vos “Is a Clas s Action a ‘Classy Act’ to I mplement Outside the A mbit of the Constit ution?” (2012)
4 TSAR 737 754.
141 756.
394 STELL LR 2017 2
© Juta and Company (Pty) Ltd
all, one of the main cr iticisms of managerial judging.142 In any event, the
legislative fra mework adopted to regulate class ac tions in the United States
appears to afford to judges sufcient room to mano euvre to enable them to
manage such proceedings effectively and to tailor ca se management to suit
the circumstances of each specic case.143 It is submitted that legislative
regulation of class actions doe s not necessar ily preclude judicial innovation
insofar as case manageme nt is concerned.
Further, the inherent limitations posed by the ad hoc nature of South African
managerial judgi ng has not been removed by developing comprehensive
guidelines to assist judges to make manager ial decisions. There is no South
African equivalent to the American Pocket Guide for Judges or the Manual for
Complex Litigation. The court rules a nd practice directives that a trial cou rt
could use to manage a class action, to which Mojapelo DJP refers in the Nkala
case, was not created specical ly for use in a class act ion context.144 No othe r
meaningfu l form of judicial g uidance, traini ng or support is available to the
South African judiciar y to assist them to properly manage complex litigation.
Hence, as th ings currently stand , a relatively uniform South African judicial
case management approach in the context of complex, high-stakes global
litigation, like the Volkswagen litigation, is improbable.145
3 Thinking strategically
There are clearly differences between the American and South African
approaches to judicial case m anagement in complex litigation. There are also
variations in the approaches of i ndividual courts within t hese jurisdictions,
although the differences between the ap proaches of South African courts
may be more signicant. T he question that ar ises is what the relevance of
these differences is in the context of global litigation. In other words, how
could these differences affect strategic decision-making in global litigation?
The str ategic considerations that are considered in the following part of this
article reect aspec ts of the well-documented debate regarding man agerial
judging.146 Although “[i]n complex cases, at least, active judicial management
has become a strongly encouraged norm”,147 as mentioned, the purpose of this
article is not to add to this debate. Rather, it aims to illustrate that the varian ces
in the judicial case management approaches of two legal systems and between
different courts within the same legal system, constitute considerations that
142 Resnik (1982-1983) Harv L Rev 444.
143 Gen sler (2010-2 011) Duk e L J 693. According to R L Marcu s, EF Sherman & HM Erichson Complex
Litigation: Ca ses and Mater ials on Advance d Civil Proced ure 5 e d (2010) 19, “[m]any of the r ules
governing impor tant matters such as joinder and cl ass ac tions are ph rased in general language that
requires ad hoc appli cation. As a consequence, they gr ant the judge great latitude in ta iloring the
treatment of c ases under the bro ad mandate of the r ules”.
144 J Meiri ng “Manual or Automa tic?” (2013) 26 Advocate 34 34.
145 J Stander “ South Africa’s firs t lady Judge President: Mo nica Leeuw” (2010) 23 Advocate 18 18.
146 See, eg, J T Molot “An Old Judicial Role for a New Litigat ion Era” (2003) 113 Yale L J 27; D Elliot
“Managerial and the Evolution of Procedure” (1986) 53 U Chi L Rev 306; J Resnik “Managerial Judges”
(1982-1983) 96 Harv L Rev 374; Gensler (2010-2011) Duke L J; Rowe (2007-2008) Sw U L Rev.
147 RL Ma rcus, EF She rman & HM Erichson Co mplex Litigation: Case s and Materials on Advanc ed Civil
Procedure 5 ed (2010) 485-486.
STRATEGIC CONSIDERATIONS IN GLOBAL LITIGATION 395
© Juta and Company (Pty) Ltd
may af fect a p arty’s global l itigation strategy. In view of the aforegoing, it
may be instructive to consider how these differences translate into strategic
considerations in global litigation.
When a judge properly m anages complex litigation , it could reduce
litigation costs148 and it cou ld save t ime by preventing unnec essary delays.149
Accordingly, one of the foremos t factors that a par ty would need to consider
when devising a global litigation strategy is whether they would prefer a judge
who ma nages the litigation actively a nd efciently. Though not necessar ily
obvious at rst, there may be circumstances in global litigation where a
party does not hold such a preference. St rategically, for example, to obtain
a more favourable settlement, a well-resou rced party could attempt to delay
the litigation and increase the oppone nt’s litigation costs by l itigating in a
forum where the judge is less par ticipatory and by conti nuously enga ging in
process d isputes.150 Moreover, “[e]xcessive delays in litigation may induce a
reasonable belief, especially on the par t of a successful litigant, that the order
or award had become unass ailable”.151
Imagine global litigation ar ising from mass injuries sustaine d owing to the
use of an Amer ican pharmace utical product that failed to war n consumers
of potentially adverse conse quences associat ed with its consumption. The
American parent compa ny has a subsidiary in South Africa. Thousands of
South African con sumers combine to form a clas s and to institute a clas s
action lawsuit, largely nanced by an American company, in one of the
divisions of the High Court of South Af rica. At t he same time, large-scale
litigation ensue s against the parent company in the United State s. It may be
in the defendant’s interests to delay the South African litigation to enable it
to conduct fur ther phar maceutical stud ies in r espect of the product and to
introduce the results as evidence at a later st age of the proceed ings, or to
enable it to focus most or all its resources r st on the American litigat ion. In
the recent Apple-Samsung global litigation, this is exactly what the parties did
– they “decided to scuttle their internat ional disputes and focus solely on t he
148 Erasmus (2015) TSAR 2 63. Baicker-Mckee (2015-2016) Am U L Rev 370-371, 396 sta tes tha t plainti ff
lawyers, defe nse lawyers, and cl ients all repor t that active judicia l involvement in a case lowe rs the cost,
increases t he pace, and incre ases satisfacti on with the outcome.
149 GL D oerfer “W hy Judicial Case M anagement Pays Off at Trial” (1990) 29 Jud ges J 13 13, sta tes that
active pre trial mana gement reduce s the time within wh ich cases a re settled or readied for trial b ecause
it focus es the parties and thei r counsel on the issues and encou rages the m to we igh the strengths and
weaknesse s of their cases. Not on ly do pretr ial managemen t techniques promote rea diness for t rial and
produce sett lements, but they als o improve the chances t hat the trial its elf will be efficie nt and the issues
resolved with mi nimal distr action and delay.
150 Tho rnbu rg (2010) U Rich L Rev 1269. See also S Ngcobo CJ “Ope ning Remarks, Access to J ustice
Conference: Towards D elivering Acces sible Quality Justice for All” (06- 07-2011) Constitutionally
Speaking <http://constit utionallyspeaki ng.co.za/wp-cont ent/uploads/2011/07/Speech-of-the-Ch ief-Justice-
2011. pd f > (a cce ssed 16-10 -2016). LM Watson “The C ase for Mediat ed Case Mana gement” (2007) Am J
Mediation 1 1, states that:
“‘Process d ebates’ are pr ocedural a rguments th at seem to erupt and flourish in complex ca ses. They
can involve a wide range of peripher al issues. T hey are alway s focused on the litigat ion process (the
way we a re going to argue) r ather tha n the su bject of the lawsuit (wha t we are arguing about) … In
particu larly adverse ca ses, disputes over the time of d ay, and who picks up t he lunch tab w ill get into
the mix as well”.
151 Toyota SA Motors (Pt y) Ltd v CCMA 2015 ZACC 40 para 45.
396 STELL LR 2017 2
© Juta and Company (Pty) Ltd
U.S .”.152 Litig ating in a for um where the jud ge is passive and alo of would then
generally be preferable.153 Conversely, the claimants may favour instituting
proceedings in a d ivision of the High Cou rt of South Africa where the judges
appear to be generally more active in managi ng disputes and have a reputation
for the expeditious resolution of civil litigation, at least when compa red to
the other divisions, including active participation in facilitating settlement of
complex di sputes. For i nstance, the Gauteng Lo cal Division, a pilot site of
the Project, may be preferable to litigating in the Limpopo D ivision of the
High Cou rt of South Africa, situated in Thohoyandou, where the court has
encountered case-ow problems.154
The above illustrates, th rough hypothesising, that where judges are passive
in respect of the conduct of the litigation, the lit igants wil l retain control over
those a spects of thei r cases that characterise the adversarial system of civil
litigation. Conversely, active judicial case man agement will result in reduced
party control and may force the parties to cooper ate with each other and the
judge, especially insofar as pre- trial processes are concerned.155 Consider, for
example, where the defendant compa ny and/or the counsel they retain h ave a
reputation for being excessively hostile and uncooperative during litigation.
The plaintiffs may prefer to lit igate in a forum where management of the
litigation, especially control over the pre-trial phase, is at the behest of the
courts.156 Conversely, the defendant may favour litigating in a for um where
the parties retain control over the pre-trial phase, i ncluding the discovery
proc ess, to en able such a pa rty to exe rt their aut hority ove r the proce edings.157
According to Baicker-Mckee, disparities in the part ies’ situations in h igh-
stakes litigation w ithout active and ongoing judicial management ca n lead
to a messy discovery process158 and “[a]ttorneys who ar e even marginally
competent will realize that there are tactical advantages to cert ain outcomes in
the discovery p rocess” that can be achieved by manipulating discovery r ules
152 D Reisinge r “Samsung Wins App eal In $120M Patent Fight w ith Apple” (26 -02-2016) Fortune
fortune.c om/2016/02/26/apple-samsu ng-patent-appea l/> (accessed 16-10-2016).
153 See, eg, F R abkin “ When P reliminary Litigation is used to Delay and Frust rate (09 -07-2016)
Rand Daily Mail
and-frustr ate> (accesse d 16-10-2016); R Meeran “Mining companies are using delay tact ics in a bid to
slice silicosis payout cost s” (28-06 -2016) Mail & Guardi an
companies-are-using-delay-tactics-in-a-bid-to-slice-silicosis-payout-costs> (accessed 16-10-2016).
154 “SCA judges cr oss sword s over delayed ap peals” (03- 08-2016) Legalbrief
url ?sa = t&rc t = j&q = & esr c = s&s our ce = web &cd = 1&ca d = rja &ua ct = 8& ved = 0ahU KEw iqg qbc zvX V
AhWLOsAKHZWRCYgQFggnMAA&url = http%3A%2F%2Flegalbrief.co.za%2Fdiary%2Flegalbrief-
today%2Fstory%2Fsca-judges-cross-swords-over-delayed-appeals%2Fpdf%2F&usg = AFQ jCNEI4PK
FUETYIpn IklYjIcqL6FsrKQ> (acces sed 16-10-2016).
155 Rowe (2007-2008) Sw U L Rev 213.
156 According to R Peckha m “The Feder al Judge as Case Manager: The New Role in Guiding a Case fro m
Filing to Disposit ion” (1981) 69 Calif L Re v 770 781-782, “the judge cou ld be a lert to the pa rticularly
combative attorney who, if the case is not actively man aged duri ng pretr ial, might succeed in tur ning
a t rial t hat should be a molehi ll into a mountain.” See a lso WW Justice “The Two Faces of Jud icial
Activism” in DM O’Brie n (ed) Judges on Judging: Vie ws from the Bench 4 ed (2013) 42 46.
157 There are obvious dif ferences between the Am erican and the South Africa n approaches to discovery : The
Federal Rules rely heavily on judi cial discretion, and the cas e-management ru les are no exception. This is
particu larly true with respec t to discovery management , in which district judges have a wide discre tion to
regulate th e scope, sequence, t iming, and metho ds of discovery. See Gensle r (2010-2011) Duke L J 720.
158 Baicker-Mckee (2015-2016) Am U L Rev 378.
STRATEGIC CONSIDERATIONS IN GLOBAL LITIGATION 397
© Juta and Company (Pty) Ltd
to f rustrate and subvert the opposing part y.159 Without judicial control over
the discover y process, the litigants may be in a posit ion to inict enor mous
expense by taking expansive, often unnecessa ry discovery.160 Manager ial
judging should assist to limit or prevent this type of manipulat ion of court
rules.161
Risk averseness , specically insofar as the role of the judge is concerned,
may also infor m a party’s global litigation strategy. The nature of ad hoc
judicial case m anagement is invariably such that the way cases a re managed
typically varies from one judge to another, from one cour t to another, and from
one jurisdiction to another. This much is apparent from the above exposition of
the differences in judicial cas e management app roaches between, and within,
South Africa and the United States. Managerial decisions are dependent on the
framework within which such decision-making takes place and on the identity
and attitudes of individual judges. Individua l judges’ managerial st yle can
vary inordi nately and be very unpred ictable. Yet, such decisions cou ld affect
the outcome of the litigation.162 For instance, some judges who are opposed
to judicial case management may do on ly the slightest management requ ired
by the cour t rules, whereas other overly enthu siastic ca se managers could go
too far in using their knowledge of the m atter to coerce parties into settling
cases.163 In an atte mpt to circumvent or limit such a risk the pa rty may prefer
to approach a cour t where the judge typically adheres to t he strict application
of the court rules and is likely to refrain from exercising his or her managerial
discretion to lim it the scope of discover y.
The above consideration be comes even more important when litigating
in South Africa, where it is more likely that it may not be possible for the
parties to determine prior to the litigation what the a pproach of the judge
would be regarding the management of the litigation. I n such circumstances,
it is uncertain whether, and to what extent, r ule 37 would be subject to ad
hoc cus tomisation by the judge in favour of judicial case ma nagement. The
judge could leave the parties to their own devices during the litigation.164 This
unpredictabilit y is the result of various contributory factors. Judges could
simply be reluctant t o engage in managerial judg ing; an approach which it is
submitted would most ly be in accordance with Unifor m Rule 37.165 Even if a
specic division has adopted a practice directive that encourages judicial case
management, such a directive is not binding on the judge and he or she may
159 380.
160 Silber man et al Civil Proce dure: Theory and P ractice (2013) 658.
161 R Marcus “Slouching Toward Discret ion” (2003) 78 Notre Dame L Re v 1561 1589-1590 states that
“[w]ithout case managemen t, the growing centra lity of the pretrial phas e meant that the lawyers would be
free of subst antial constra int … a laissez-faire a ttitude toward l awyer latitude ha rdly seems prefera ble”.
162 Thornb urg (2010) Richmond Law Review 1270.
163 1275. See also Baicker-Mckee (2015-2016) Am U L Re v 386; D Neu bauer “Judicial Role and Case
Management ” (1978-1979) 4 Just Sys J 223 224.
164 Gensler (2010-2011) Duke L J 743.
165 Manyath i-Jele (2014) De Rebus 65.
398 STELL LR 2017 2
© Juta and Company (Pty) Ltd
decide to deviate therefrom.166 Assuming a judge does adopt an active judicial
management approach, he or she would lack the necessary ca se management
training and skills.167 There are also insufcient resources to assist the judge
to manage complex proceedings properly, such as information technology
resources and skil led administ rative personnel a nd ling clerks.168 The
following passage by Ngcobo CJ (as he t hen was) quite succinctly describes
the South African civi l justice system, although it appears to apply to a lesser
extent to the Project’s pilot courts:
“Our civil justice system is still characterised by cumbersome, complex and time-consuming pre-trial
procedures, overloaded court rolls, which necessitate postponements, delays in matters coming to trial
and, at times, compels litigants to conclude settlements not acceptable to them. It is expensive, slow,
complex, fragmented, and overly adversarial.”169
The unpredictabil ity and u ncertainty referred to above is prevalent in
the South Afr ican judicial s ystem and any global litigation strategy would
need to consider t his. The South African judiciary is clearly i nexper ienced
in man aging complex, high-sta kes global litigation, compared to the United
States. The lack of judicial case management trai ning and inadequate judicial
resources compounds the problem. Moreover, the degree of discretion
afforded to our judges without providing legislative (or other wise) guidance
on how t o manage complex case s, increases the uncertain nature of judicial
case management employed in our superior courts. While the pilot courts have
reported improvements following the i mplementation of case management,
much work remains to establish a uniform judicial case management approach
across all the divisions of the High C our t of South Af rica.
As alluded to above, a judge who adopts an active judicial management
approach wi ll inevitably gain considerable knowledge about the case before
trial.170 To impose t ime limits that a re fair and that a ssist in moving the cas e
forward in an efcient manner, judges must usually fully immerse themselves
in the issues and evidence i n the case.171 The same could be said regarding the
166 The High Court of Sou th Africa: Kwazul u-Natal Divi sion Practic e Manual (2014) 1 sta tes as follows
regarding t he status of pract ice directives of th e division, but it also appl ies generally:
“Obviously it does not seek to override the Rules of Cour t which of cours e have the force of law. Practice
direction s supplement the rules. They are intended t o act as a r uling in adva nce, as it were, by all the
judges of t he Division as to how they expect thing s to be done and what is expected of p ractitioners.
Judges are however not b ound by practice di rectives. While we obv iously strive to achieve u niformity
it must clearly be unde rstood that thes e directives can not fetter the exercise of a jud ge’s discretion and
in an appropr iate case he/she may be persu aded to relax or change a pra ctice of the court. We envisag e
that this wi ll only arise in excep tional circums tances. If a judge does d epart from a par ticular pract ice
this will not be reg arded as a modifica tion of the practice. Cha nges can only come about if th is is done
with the autho rity of the Judge Pres ident in consultat ion with the other jud ges of the Division”.
167 Tzankova (2014) Unif L Rev 329 sta tes that “n ati onal judge s conf ron ted w ith th e hand lin g of mas s dis pute s
have varyin g legal and cultur al background and c ase management sk ills”.
168 Manyath i-Jele (2014) De Rebus 65.
169 Ngcobo CJ Constitutionally Speaking (a cces sed 16-10 -2016). Mogoeng CJ recently confirme d that t he
current South African judiciary does not fun ction opti mally an d that they a re not properly trained to
conduct judicial case management: L Sidimba “Court lack skills” (26-01-2014) IOL
co.za/news/sout h-africa/cou rt-lack-skills- --mogoeng-1637001> (accessed 16-10-2016).
170 Rowe (2007-2008) Sw U L Rev 206. For e xample, often decisional processes will requi re the d ecision-
maker to sift th rough document ation and have knowledge about sp ecific expert is sues and content before
the act ual proce ss of ‘hea ring’ the dispute: T Sourdin “Facilitative Judging” (20 04) 22 Law C ontext A
Socio-Legal J 64 77.
171 Thornb urg (2010) Richmond Law Review 1289.
STRATEGIC CONSIDERATIONS IN GLOBAL LITIGATION 399
© Juta and Company (Pty) Ltd
facilitation of settlement discussions between the par ties. The way i n which
a judge util ises and acts upon this k nowledge, especially during informal
discussions in chamber s, could be perceived by the parties as providing them
with an ea rly indication of the disp osition of the judge regardi ng the merits of
the case.172 Such an early ind ication could be invaluable from the perspective
of informing a party’s l itigation strategy. Further, where a judge act ively
manages the litigation, it is likely that the judge’s involvement will be less
transpare nt compa red to traditional procee dings. In the process of managing
the pre-tr ial process, the judge may e ngage the parties in, and take decisions
during, several in-chambe rs, off the record discussions.173 The A merican
defendant company may prefer conce aled manager ial decision-ma king
where, for example, the rationale underpinning cert ain decisions, if ventilated
in open court, could adversely affec t the litigation outside South African
borders. Although the plaintiff, as dominus lit is, can choose where to instit ute
proceedings, the defenda nt can nevert heless contest jur isdiction or consent to
jurisdiction ad conrmandam or ad fundandam jurisdictionem, or would be
able to utilise the in format ion in the context of other strategic choices that do
not necessarily concern jurisdiction.
Another important consideration is the court’s role in facilitati ng settlement
of complex disputes. Federal Rule 16(c) provides that judges may have the
parties consider at pre-trial conferences, and “may take appropriate act ion,
with respect to ... (9) settlement and the use of special procedures to assist
in resolving the dispute when author ized by statut e or local rule”. It has
been stated that “[m]ost American judges participate to some extent in the
settlement of some cases before t hem. Indeed, this has become a re spectable,
even esteemed, feature of judicial work. In the United States it has been noted
that there is a n increasing pressure upon courts a nd judges to do ‘more’ to
resolve cases and to actively pursue settlement”.174 However, judicial activism
in the settlement process appears to be far more accept able in the United States
than in South Afr ica. As mentioned, rule 37 of the Uniform Rules contains
the issues t hat should be de alt with at a pre-tr ial conference but does not
require active judicial par ticipation in set tlement discussions.175 The Project
has moved some of t he divisions closer to the A merican judicial approach to
facilitating set tlement. However, although “[o]rders entered in the immediate
pretrial period t hat structure the trial are desig ned in part to create settlement
pressure and the tactic often works”,176 settlement of complex disputes in
172 Accordi ng to AR Miller “The Pretrial Rush to Judgment: Ar e the ‘Litigation Explosion,’ ‘Liability Crisis,’
and Effi ciency Clichés Eroding Ou r Day in Cou rt and Ju ry Trial Com mitments?” (20 03) 78 NYUL Rev
982 1006:
“Regardless of whether case management accomplishe s its stated goals, its aggressive use clearly
facilitate s pretri al disposit ion. Rule 16 conferences , for exa mple, often clarify what fact ual or legal
issues may be in dispute, thu s permitti ng focused discover y and identif ication of claims a nd defenses
suitable for summa ry resolution. In addit ion, a judge who actively particip ates throughout the pre trial
phase and is fami liar with the dispute’s facts an d theories may be more incli ned to believe that having
the same evide nce presented at tr ial is unneces sary and to resolve t he case on summar y judgment”.
173 Thorn burg (2010) U Rich L Rev 1291.
174 Sourdi n (2004) Law Context A So cio-Legal J 69.
175 This is ref lected in sub rules 37(6)(c) and (d) referred to above.
176 Thornb urg (2010) U Rich L Rev 1265.
400 STELL LR 2017 2
© Juta and Company (Pty) Ltd
South Africa, for the most part, remains dependent upon t he initiative and
willingness of the pa rties.
4 Conclusion
“‘[I]f you offer a plai ntiff a choice of jur isdictions, he wi ll naturally ch oose
the one in which he thin ks his c ase can be most favourably presented: this
should be a matter neither for surprise nor for indignation”.177 T his al so appl ies
in the context of global, parallel litigation arising out of the same dispute
where each pa rty would prefer to litigate in the jur isdiction where their case
“can be most favourably presented”. For t he reasons already mentioned, it is
apparent that one of the considerations that is relevant to determine whether
a foru m would be favourable i s whether and to what extent the jud ge will
manage the litigation. However, its relevance extends further, beyond foru m
shopping. Even where there is no choice t o be made between different
forums, the managerial role of the judge is relevant to i nforming parties’
strategic decision-making. The parties to global litigation would therefore be
well-advised to consider possible disparities in the approaches of courts to
managing complex litigation, bot h nationally and transnationally. It is from
this view that this ar ticle h as attempted to broaden understanding towards a
global litigation perspective. There are many issues that parties e ngaging in
global litigation would have to consider. The role of the judge is only one of
these consider ations, but it cou ld have a signicant impac t on the lit igation,
including its outcome.
SUMMA RY
Economic a ctivity has b ecome globalised . As a result , the incidenc e and scope of mass litigation
has increased dramatically. This has resulted in a continuously changing global litigation landscape.
Litigation to o has become glob alised. Dispute s that used to be contained w ithin nationa l borders are
now t ransnational. To par ticipate i n this transn ational l itigation r ealm suc cessfully and to design,
implement and coordinate an effective global l itigation strategy, knowledge limited to o ne’s own
legal syst em will no longer sufc e. Of fun damental im portance i s transnat ional knowledge of legal
systems. K nowledge of the le gal systems of the different jurisdictions involved in the litigation may
assist in addressing the challenges that could arise during global litigation. It may also assist parties
to make sens ible strategic choices regarding the co nduct of the litigatio n. One such relevant st rategic
consideratio n, which thi s article co nsiders, is w hether and t o what extent the judge w ill manage the
litigation. The ma nagerial role of the judge is relevant to infor ming parties’ stra tegic decision-maki ng
in the context of g lobal litigation. The a rticle according ly suggests that the parties to global l itigation
would be well-advised to consider possible dis parities in the approaches of courts to mana ging
complex litigation, both n ationally and tr ansnationally. The role of t he judge is only one of t hese
consideratio ns, but it could have a signica nt impact on the litigat ion, includ ing its outcome. The
article doe s not aim to engage in a critical a nalysis of the value of ju dicial case manag ement as such,
but rather to consider how differe nces in judicial ap proaches could in form strategic de cision-making
during glob al litigation.
177 The Atlan tic Star 1974 App Cas 436 471 (appeal taken f rom Eng.) (HL) (Lord Simon of Glais dale).
STRATEGIC CONSIDERATIONS IN GLOBAL LITIGATION 401
© Juta and Company (Pty) Ltd
To continue reading
Request your trial